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SJC-11784

                 COMMONWEALTH   vs.   PATRICK WAWERU.



            Essex.      April 6, 2018. - July 31, 2018.

      Present:    Gants, C.J., Gaziano, Budd, & Kafker, JJ.


Homicide. Armed Home Invasion. Armed Assault with Intent to
     Murder. Assault and Battery by Means of a Dangerous
     Weapon. Reckless Endangerment of a Child. Constitutional
     Law, Admissions and confessions, Voluntariness of
     statement, Trial jury-waived. Evidence, Admissions and
     confessions, Voluntariness of statement, Privileged
     communication, Communication between patient and
     psychotherapist, Insanity. Psychotherapist. Privileged
     Communication. Insanity. Practice, Criminal, Capital
     case, Admissions and confessions, Voluntariness of
     statement, Waiver, Motion to suppress, Instructions to
     jury, Presumptions and burden of proof, Acquittal by reason
     of insanity, Reasonable doubt, Trial jury-waived.



     Indictments found and returned in the Superior Court
Department on November 28, 2007.

     A pretrial motion to suppress evidence was heard by David
A. Lowy, J., and the cases were tried before Richard E. Welch,
III, J.


     Richard L. Goldman for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
                                                                    2



    KAFKER, J.     A jury convicted the defendant, Patrick Waweru,

of murder in the first degree on the theories of premeditation

and extreme atrocity or cruelty, among other offenses.      The

defendant's primary defense at trial was that he lacked criminal

responsibility for the murder because he suffers from mental

illness.   On appeal, the defendant argues error as to (1) the

motion judge's denial of his motion to suppress statements made

to a psychiatrist who interviewed him in the presence of police

officers guarding him at the hospital; (2) the jury instructions

regarding the presumption of sanity, the consequences of finding

the defendant not guilty by reason of insanity, the failure to

take prescribed medications, and reasonable doubt; and (3) the

denial of his request for a jury-waived trial.    For the reasons

stated below, we affirm.    After a thorough review of the record,

we also decline to exercise our authority under G. L. c. 278,

§ 33E.

    1.     Background.   We summarize the facts that the jury could

have found at trial, reserving certain details for our

discussion of the legal issues.

    The defendant was in an on-again, off-again relationship

with the victim.    The couple had two children together.   The

victim's sister occasionally lived with the victim and the

defendant, but the sister did not get along with the defendant.
                                                                      3


The victim's mother also lived with the victim and the defendant

for a time.

     The defendant has a history of mental illness.    In 2002, he

was diagnosed with bipolar disorder II and a personality

disorder with impulsive features.   He received outpatient

medical health care.   In 2005, he was hospitalized for taking an

overdose of his prescribed psychiatric medications.    He reported

feeling that he was being "mistreated by his girlfriend and the

legal system."   During his hospitalization, the defendant was

diagnosed with a major depressive disorder, but the hospital

clinicians did not find sufficient evidence to substantiate a

bipolar disorder II diagnosis.   In early 2007, he was

hospitalized and again diagnosed with bipolar disorder.1     He was

prescribed mood stabilizing medication, Depakote; an

antipsychotic medication, Risperdal; and an antidepressant.

During this hospitalization, he threatened to kill the victim.

     At the time of his arrest, the defendant was working two

jobs, one as a residential counsellor for a mental health

facility, and the other at a nursing home.   The victim's sister

testified that when the defendant and the victim were fighting,

the defendant would periodically say that "even if he killed

[the victim's sister] or [the victim], nothing would happen to

     1 The hospital diagnosis was not specific as to whether this
was bipolar disorder I or bipolar disorder II.
                                                                   4


him because . . . he was bipolar."

     In early 2007, the defendant moved out of the apartment he

shared with the victim.   Around this time, he told the victim's

mother, "When you get to Kenya, be prepared to receive two

coffins, because I'm going to kill these daughters of yours.

And I'm starting with [the victim's sister].     [She] will not

raise my children.   Instead, they'll be raised by the [S]tate."

Later the same year, the victim, her children, and her mother

moved to Delaware, primarily to get away from the defendant.

The victim's sister remained in Massachusetts.

     On the weekend of October 14, 2007, the victim, her

daughters, and her mother returned to Massachusetts, ostensibly

for a Housing Court appearance related to the apartment the

defendant and the victim had previously shared.2    During their

visit, they stayed in the victim's sister's one-bedroom

apartment in Lynn.

     The victim left her sister's apartment in the early morning

on October 15.   She and the defendant spent the day running

errands.   Later that day, the victim and the defendant drove

back to her sister's apartment.   The victim called her sister

     2 No actual court appearance had been scheduled. The
defendant indicated to the defense's expert witness, a forensic
psychologist, that he intended to "speak with a clerk about
reassessing the decision that had been made by the Housing Court
sometime earlier." The Commonwealth has characterized this as a
"ruse" to lure the victim back to Massachusetts.
                                                                     5


from outside, at approximately 9:27 P.M.     Her sister told her to

come inside.     When the victim entered the apartment a few

minutes later, she locked the door behind her.     The victim's

sister observed that the victim appeared "somewhat calm, but

nervous at the same time."     The victim sat with the rest of her

family in the living room and spoke with them, while the

defendant continued to wait outside.

     Approximately one-half hour after the victim arrived, the

defendant appeared at the front door to the apartment and

shouted through the door that he wanted his cellular telephone

(cell phone) back.3    When the victim's mother heard the

defendant's voice, she quickly placed a chair against the door

and sat on it.    The victim's sister told the defendant that he

would get his cell phone back.     She called each of her neighbors

in the building to help facilitate a transfer of the cell phone,

but no one answered.     The defendant asked for his cell phone a

second time, and the victim's sister again responded that he

would get his cell phone back.     The victim's mother told the

victim and her sister that they should call the police.        At some

point, the victim's mother moved the chair away from the door.

Not long after, the defendant broke through the door with a two-




     3 There is no indication in the record whether, or why, the
victim may have had the defendant's cellular telephone.
                                                                       6


by-four piece of lumber taken from outside the apartment.4       The

victim's mother testified that the defendant said something to

her, but she could not understand him.     The defendant

immediately hit the victim's sister over the head with the piece

of lumber.   He then grabbed the sister by the collar, but she

managed to pull away.    She staggered out of the apartment and

went upstairs, screaming for help.    The victim's four year old

daughter followed her.

     The defendant hit the victim over the head with the same

piece of lumber he had used to hit her sister.    The victim fell

to the ground and was seemingly knocked unconscious.       The

defendant took out a knife that he had hidden in his sock.       The

victim's mother attempted to grab the knife, but cut herself

when the defendant pulled away.     The defendant bent down and

stabbed the victim twenty-four times in the back, the chest, the

head, the neck, and the left arm.    During the attack, their one

year old daughter was crawling between the defendant, the

victim, and the victim's mother.    After stabbing the victim, the

defendant fled the scene and disposed of the murder weapon in a

cemetery.

     The victim's sister was able to reach one of her neighbors,


     4 The landlord had placed two-by-four pieces of lumber just
outside the front door of the victim's sister's apartment in
order to make repairs.
                                                                   7


who telephoned the police.   The victim was still alive when the

police arrived, but died shortly thereafter.   The defendant was

subsequently arrested at his apartment.   The arresting officers

observed that the defendant appeared to be "under the influence

of something."   The defendant told the officers that he had

"[taken] some pills."   He was admitted to Union Hospital for

treatment of a suicide attempt.   The defendant was placed in the

intensive care unit under police guard.   A psychiatrist at the

hospital, Dr. Maureen McGovern, performed a suicide risk

evaluation on the defendant.   He could not remember the night of

the murder, but told the doctor that the victim "was the cause

of all his problems" and that "he had thoughts about hurting

her."5

     At trial, the defendant did not contest that he killed the

victim, but argued that he lacked criminal responsibility at the

time of the murder.   Defense counsel called an expert witness, a

forensic psychologist, who had performed a psychological

evaluation of the defendant.   The expert diagnosed the defendant

with bipolar disorder II, with "mixed characteristics of




     5 Dr. Maureen McGovern testified that the defendant said he
had thoughts about "hurting" the victim. One of the police
officers on guard in the defendant's hospital room testified
that he overheard the defendant say he had thoughts about
"killing" the victim.
                                                                    8


depression and hypomania."6    The hypomania was exhibited by

"restlessness" and "agitation," and the depression was exhibited

by "subjective reports of depression . . . [and] difficulty

sleeping."

     The defense's expert witness testified that the defendant

had been depressed, in part because he felt that the victim was

keeping him from seeing their children.    The defendant indicated

to the expert that he was having trouble sleeping in the days

leading up to the murder.     He had also stopped taking his mood

stabilizing medication because "he had been feeling good."

     The expert testified that the defendant indicated his

"spirits went up" on the day of the murder because the victim

had indicated a willingness to stay with him for a period of

time to "help to extricate him from the depression that he was

experiencing."   This tentative plan would involve the victim

going back to Delaware, gathering a few items for herself and

the children, and returning to stay with the defendant.

     The defense expert testified that, on the night of the

murder, after waiting for the victim outside her sister's

apartment for approximately ten to twenty minutes, the defendant


     6 The defense's expert witness defined hypomania as being a
state with many of the same symptoms as mania, but lasting a
shorter duration. These symptoms include "a heightened sense of
self-esteem, a lessened sense of the need for sleep,
changeability in mood states, [and] agitation."
                                                                   9


began thinking she was not coming back.   The defendant believed

the victim's sister and mother would not allow him to go to

Delaware with the victim.   He indicated to the psychologist that

"his intent was to go down [to the sister's apartment] and get

[the victim] so they could be on their way to Delaware."

    The defendant explained to the psychologist that he was

carrying a knife in his sock in order to kill himself.     He could

not recall what happened after he reached the front door of the

sister's apartment.   Given the defendant's inability to recall

the murder itself, the defense expert was unable to reach a

definitive conclusion as to whether the defendant lacked

criminal responsibility at the time of the murder.   However, the

expert testified that "[the defendant's] behaviors are

consistent with an inability to conform his behavior to the

requirements of the law."

    The Commonwealth called its own expert witness on rebuttal,

a forensic psychiatrist, who testified that he was not convinced

that the defendant was bipolar, and did not believe that the

defendant had a mental disease or defect at the time of the

murder.   The Commonwealth's expert further stated, "There's

nothing that, in my opinion, . . . resulted in the lack of

substantial capacity to conform [the defendant's] conduct to

requirements of the law."   He also indicated that individuals

with bipolar disorder usually "don't have a pattern of violence
                                                                     10


directed at others."

    A jury convicted the defendant of murder in the first

degree, home invasion, armed assault with intent to murder,

assault and battery of the victim's sister by means of a

dangerous weapon, and wanton and reckless endangerment of a

child.    He was acquitted of assault and battery of the victim's

mother by means of a dangerous weapon.

    2.    Discussion.   a.   Admission of statement to

psychiatrist.   Prior to trial, the defendant sought to suppress

statements he made to a psychiatrist after the murder.         His

motion to suppress was denied.    On appeal, the defendant argues

that the motion judge erred in denying his motion because the

statements were (1) involuntary; (2) protected by the

psychotherapist-patient privilege; and (3) obtained in violation

of his due process rights.    We address each argument in turn.

    We summarize the motion judge's factual findings,

supplemented by testimony from the hearing that was credited by

the motion judge.    See Commonwealth v. Walker, 466 Mass. 268,

270 (2013).   See also Commonwealth v. Jones-Pannell, 472 Mass.

429, 431 (2015).    On the night of the victim's murder, police

went to the defendant's residence.    Officers knocked on the

defendant's apartment door and heard a large crash.      The

officers knocked on the door again and asked, "Are you all

right?"   The defendant answered "I can't walk."    Officers heard
                                                                    11


what sounded like someone falling, and entered the residence to

find the defendant holding the door.    The defendant confirmed

his identity to the officers.    He was on the floor with his legs

tucked under him.    The motion judge found that the defendant

"appeared intoxicated and had blood on his jean pants."       The

officers placed the defendant in custody.    They asked the

defendant if he had taken drugs, and he responded affirmatively.

There were drugs and packets of Clonazepam in the area around

the defendant.

    The defendant was taken to Union Hospital.     He appeared to

be conscious but under the influence.    He was placed in a single

room in the intensive care unit and shackled to a hospital bed.

The defendant's toxicity screens came back negative, but he had

to be intubated because he was "lethargic to the point that he

could not protect his own airways."

    Two officers arrived at the hospital to secure the

defendant and keep him under observation.    When they arrived,

the defendant was lying down while somewhat propped up in the

hospital bed.    The officers noticed that the defendant's eyes

were closed at times.    They sat in chairs located inside the

room, "past where the defendant was occupying the bed."       Various

hospital personnel visited the defendant, and the defendant was

able to respond appropriately to their questions.    At no point

did the officers give the defendant Miranda warnings.
                                                                   12


     The physician who admitted the defendant asked an attending

psychiatrist at the hospital, McGovern, to do a psychological

consultation on the defendant.    McGovern spoke with the

defendant more than twelve hours after his arrest and in the

presence of the police officers.    During this conversation,

McGovern was located on one side of the bed and the officers

were seated on the other.    The officers did not, however, engage

McGovern or the defendant in conversation.

     McGovern asked the defendant medical questions, but did not

give him Lamb warnings.7    See Commonwealth v. Lamb, 365 Mass.

265, 270 (1974).    His responses appeared to be appropriate to

the questions asked.   The defendant did not slur his speech,

appear injured, or complain of pain.    His vital signs were

normal.   McGovern further observed that the defendant was quiet,

subdued, calm, and cooperative.    She noted that the defendant

had been medicated with a blood thinner and a medication to

reduce stomach acidity.    Neither of these medications affected

his mental state.   Although he appeared slightly drowsy, he was

able to maintain attention throughout the thirty-minute

interview with the psychiatrist.    McGovern believed that the

     7 In Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), we
held that when a psychotherapist conducts a court-ordered
examination of a defendant, the psychotherapist must warn the
defendant that the communications are not privileged. We note
that McGovern was not conducting a court-ordered examination.
See Commonwealth v. Seabrooks, 433 Mass. 439, 450-451 (2001).
                                                                   13


defendant was "cognitively intact"8 and had a "thought process

[that] appeared goal oriented."9    However, she was concerned

about his emotional stability and worried that he might attempt

suicide again.   She diagnosed him with depression, with elements

of mania.

     During her evaluation, McGovern asked the defendant if he

wished to harm himself or others.    He indicated that he wanted

to harm himself, and stated, "Since Friday, I was thinking I

wanted to kill my girlfriend because she's the cause of my

problems."

     i.   Voluntariness.   First, the defendant argues that his

statements to McGovern were not given voluntarily, because they

were given as a result of the defendant's debilitated condition.

We disagree.   The motion judge correctly found that the

statements were voluntary.

     "An admission by a defendant to a civilian is only

admissible if voluntarily made."    Commonwealth v. Anderson, 445

Mass. 195, 204 (2005).     See Commonwealth v. Kolenovic, 478 Mass.

189, 198 (2017).   An admission is voluntary if it was "the

     8 McGovern testified that "cognitively intact" means that
the defendant did not appear to be delirious or demented.
Rather, he appeared to understand where he was and "his general
fund of knowledge was average."

     9 McGovern testified that "goal oriented" describes a
thought process in which the patient understands the questions
being asked of him or her and gives appropriate answers.
                                                                   14


product of a 'rational intellect' and a 'free will,' and not

induced by physical or psychological coercion."    Commonwealth v.

Harris, 468 Mass. 429, 434-435 (2014), quoting Commonwealth v.

LeBlanc, 433 Mass. 549, 554 (2001).     Courts evaluate

voluntariness based on the totality of the circumstances.    See

Harris, supra at 435.    See also Commonwealth v. Mello, 420 Mass.

375, 384 (1995).   "Statements that are attributable in large

measure to a defendant's debilitated condition, such as insanity

. . . drug abuse or withdrawal symptoms, . . . [or] intoxication

. . . are not the product of a rational intellect or free will

and are involuntary."    Commonwealth v. Allen, 395 Mass. 448, 455

(1985).   See Commonwealth v. Bell, 473 Mass. 131, 141 (2015),

cert. denied, 136 S. Ct. 2467 (2016).

    Here, the motion judge found that the statements were made

voluntarily because the defendant was "emotionally stable,

cognitively intact, calm and cooperative, and not influenced by

drugs or alcohol" during his conversation with McGovern.     There

was ample evidence to support the motion judge's conclusion.

The defendant's toxicity screen was negative, the conversation

took place over twelve hours after the defendant was arrested,

and his speech was not slurred.   Based on her conversation with

the defendant, McGovern observed that he understood where he was

and was able to understand the questions being asked of him and

respond appropriately.   See Commonwealth v. Brown, 449 Mass.
                                                                   15


747, 767 (2007) (trial judge's finding that statement was

voluntary was supported by testimony that defendant did not have

trouble understanding questions his friends posed to him, and

friends did not have trouble understanding his answers);

LeBlanc, 433 Mass. at 555 ("Although the defendant was

emotionally upset, he spoke calmly when giving his statement,

and there is no evidence that he was acting irrationally").

While McGovern noted that the defendant's "insight and judgment

[were] poor," this was based on his suicide attempt, not his

responses to her questions.

     Further, the defendant did not present any evidence

indicating that his statements to McGovern were the result of

threats, promises, or trickery.     See Commonwealth v. Allen, 395

Mass. 448, 456 (1985).   Nor were the police required to provide

the defendant with Miranda warnings, as his statements were not

made in response to a police interrogation and McGovern was not

acting as an agent of the police.    See id. 453-454.   See also

Commonwealth v. Trigones, 397 Mass. 633, 643 (1986).

Accordingly, we discern no error in the motion judge's

determination that the defendant's statements were made

voluntarily.10


     10Moreover, the trial judge gave the jury a humane practice
instruction after the jury heard testimony about the defendant's
statements to McGovern. The judge instructed the jury, in
                                                                  16


    ii.   Psychotherapist-patient privilege.    The defendant

argues that his statements to McGovern were protected by the

patient-psychotherapist privilege set forth in G. L. c. 233,

§ 20B.   The statute provides:   "[I]n any court proceeding

. . . , a patient shall have the privilege of refusing to

disclose, and of preventing a witness from disclosing, any

communication, wherever made, between said patient and a

psychotherapist relative to the diagnosis or treatment of the

patient's mental or emotional condition."    The motion judge

determined that because the defendant's statements were made in

the presence of two police officers, the privilege did not

attach or, to the extent it did, the defendant had waived it.

We review for prejudicial error.   See Commonwealth v. Dung Van

Tran, 463 Mass. 8, 16 (2012).    We conclude that the privilege

did attach and was not waived by the presence of the police

officers, but also that there was overwhelming evidence of the

defendant's premeditation and any error in the admission of

McGovern's testimony would not have been prejudicial.

    A.    Waiver.   Under G. L. c. 233, § 20B, the

psychotherapist-patient privilege attaches to any communications



relevant part, as follows: "[B]efore you can consider [the
defendant's statement], the Commonwealth has to prove to you
. . . beyond a reasonable doubt, that the defendant's statement
was voluntarily made[,] that is, that it was made as a product
of his own free will and rational intellect."
                                                                  17


between a "patient and a psychotherapist relative to the

diagnosis or treatment of the patient's mental or emotional

condition."   In communicating with McGovern for the purpose of a

suicide risk evaluation, the defendant met the statutory

definition of "patient"11 under § 20B, and McGovern, as a

licensed, practicing psychiatrist, met the statutory definition

of "psychotherapist."12   The suicide risk evaluation was also

specifically targeted at diagnosing and treating the defendant's

"mental or emotional condition."   Id.   Thus, the defendant's

communications with McGovern during the suicide risk evaluation

met the statutory requirements for the psychotherapist-patient

privilege to attach.13


     11Under G. L. c. 233, § 20B, "patient" is defined as "a
person who, during the course of diagnosis or treatment,
communicates with a psychotherapist."

     12Under G. L. c. 233, § 20B, "psychotherapist" is defined
in relevant part as "a person licensed to practice medicine, who
devotes a substantial portion of his time to the practice of
psychiatry."

     13The motion judge indicated that the psychotherapist-
patient privilege requires a "confidential relationship" before
it can attach. Although our prior cases have discussed the
requirement that a "confidential relationship" exist between the
patient and the psychotherapist, this was specifically in
reference to the issue whether the person to whom the statement
was made meets the statutory definition of "psychotherapist."
See Commonwealth v. Mandeville, 386 Mass. 393, 409-410 (1982).
A confidential relationship exists, such that the
psychotherapist-patient privilege applies, whenever the
statutory requirements of G. L. c. 233, § 20B, are met. See
Robinson v. Commonwealth, 399 Mass. 131, 135 (1987);
                                                                  18


    The Commonwealth contends that that the privilege was

nonetheless waived because the communications between the

defendant and McGovern were made in the presence of the police

officers guarding the defendant in the hospital.   The statute

contemplates that a patient may choose to waive the privilege.

See G. L. c. 233, § 20B ("If a patient is incompetent to

exercise or waive such privilege, a guardian shall be appointed

to act in his behalf under this section" [emphasis added]).

However, no explicit waiver occurred here.   Thus, we must

determine whether the presence of police officers constituted a

waiver, absent the patient's affirmative consent to waive the

privilege.

    In interpreting the psychotherapist-patient privilege and

the issue of waiver, we must look first to the text of the

statute itself.   See Commonwealth v. Vega, 449 Mass. 227, 230

(2007).   See also Usen v. Usen, 359 Mass. 453, 457 (1971) ("We

are not free to water down the legislative policy embodied in

[G. L. c. 233, § 20B,] by loose construction or by giving our

approval to informal procedures different from those

prescribed").   The plain language of G. L. c. 233, § 20B, does

not waive or restrict the availability of the privilege based on

the presence of others or the particular location.   To the


Commonwealth v. Clemons, 12 Mass. App. Ct. 580, 584 n.2 (1981).
See also Mandeville, supra (adopting Clemons analysis).
                                                                  19


contrary, the statute explicitly states that, "a patient shall

have the privilege of refusing to disclose, and of preventing a

witness from disclosing, any communication, wherever made,

between said patient and a psychotherapist relative to the

diagnosis or treatment of the patient's mental or emotional

condition" (emphasis added).   Id.   The language here is

expansive, not restrictive, broadly protecting "the private

interest that patients have in speaking freely during

psychotherapy, and the public interest in encouraging troubled

people to seek therapy."   Conklin v. Feitelberg, 146 F. Supp. 3d

430, 437 (D. Mass. 2015), quoting Vanderbilt v. Chilmark, 174

F.R.D 225, 227 (D. Mass. 1997).

    Unlike many other States that require the communication to

be confidential or not intended for further disclosure, the

Commonwealth has no such requirement in the text of G. L.

c. 233, § 20B.   Contrast Ala. Code § 34-26-2 (privilege applies

to "confidential relations and communications"); Fla. Stat.

§ 90.503 (privilege applies to "confidential communications,"

defined as those not intended to be disclosed to third parties,

other than those expressly permitted in statute); Or. Rev. Stat.

§ 40.230 (same); S.D. Codified Laws § 19-19-503 (same).     Indeed,

in Massachusetts the privilege applies to psychotherapist-

patient communications, "regardless of the patient's awareness

of such conversations, correspondence, actions and occurrences,
                                                                 20


and any records, memoranda or notes of the foregoing."     G. L. c.

233, § 20B.   See Robinson v. Commonwealth, 399 Mass. 131, 135

(1987).

     The expansive scope of the privilege is limited by six

specific exceptions defining when the privilege is waived and

disclosure is permitted.   See G. L. c. 233, § 20B.   None of

these exceptions turns on the presence of a third party.    We

need not decide, however, whether the presence of a third party

may still waive the privilege, as we conclude that the nature of

the police presence here could not have done so.

     Here, the police presence served essential public safety

purposes.   The defendant needed psychiatric services but also

presented a grave danger to the public and hospital personnel.

The police were deployed to guard the defendant and protect the

public, including the hospital's medical personnel, and allow

him to be treated despite those concerns.   Given their public

safety responsibilities, the police should not be required to

leave the defendant's hospital room to allow the defendant to

speak with a psychotherapist alone.14   Nor should the

psychotherapist be required to get so close to the defendant

that only she and the defendant can hear one another.

     14This is true even if the defendant is shackled to the
bed. The police and not the courts are in the best position to
know whether the defendant remains dangerous even while
shackled.
                                                                 21


Psychotherapists should not be tasked with putting their own

safety at risk in order to treat a dangerous patient.

    In the absence of legislative direction to the contrary, we

therefore conclude that police presence during a psychiatric

consultation, which allows the defendant to receive necessary

medical attention while protecting the public and medical

personnel, does not waive the psychotherapist-patient privilege.

Rather, allowing such consultations to go forward under police

supervision, while leaving the privilege in place unless other

exceptions providing for disclosure apply, properly balances

both medical and public safety considerations.   See State v.

Deases, 518 N.W.2d 784, 788 (Iowa 1994) (doctor-patient

privilege not waived by presence of third party if third party

is present to assist doctor or presence is necessary to enable

defendant to obtain treatment); People v. Sanders, 169 Misc. 2d

813, 819-820 (N.Y. Sup. Ct. 1996) (doctor-patient privilege not

waived where police officer "was required to remain with the

defendant at all times" and the defendant "did not have the

option or ability to request a private session with the

psychiatrist").   Cf. Secrest v. State, 679 A.2d 58, 62 (Del.

1996) (third-party waiver "makes sense in situations where the

patient is reasonably lucid and able to control access to the

setting").   Accordingly, we hold that a patient who has been

placed under police guard does not automatically waive the
                                                               22


psychotherapist-patient privilege by speaking to a

psychotherapist in the presence of said police guard.15,16


     15Our holding is also in accordance with our case law on
attorney-client privilege. Attorney-client privilege is
generally undermined by the presence of a third party. See
Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 306
(2009). There is an exception to this general rule, however,
when the presence of the third party is "necessary for the
effective consultation between client and attorney" (quotations
omitted). Id. at 307, quoting United States v. Kovel, 296 F.2d
918, 922 (2d Cir. 1961). In order to be "necessary," the third-
party presence must be "nearly indispensable or serve some
specialized purpose in facilitating the attorney-client
communications." Comcast Corp., supra. In such instances, the
privilege still attaches. Id.

     16Although it was error to find that the defendant had
waived the psychotherapist-patient privilege, we note that the
statement may very well have been admissible under G. L. c. 233,
§ 20B (c). Subsection (c) provides that the psychotherapist-
patient privilege will not apply

     "[i]n any proceeding, except one involving child custody,
     adoption or adoption consent, in which the patient
     introduces his mental or emotional condition as an element
     of his claim or defense, and the judge or presiding officer
     finds that it is more important to the interests of justice
     that the communication be disclosed than that the
     relationship between patient and psychotherapist be
     protected."

The defendant "introduce[d] his mental or emotional condition as
an element of his claim or defense" by arguing at trial that he
was not criminally responsible. See Commonwealth v. Brandwein,
435 Mass. 623, 630 n.8 (2002). The motion judge also could have
found it "more important to the interests of justice" that the
defendant's statements be admitted, particularly given that
there was no ongoing patient-therapist relationship between the
defendant and McGovern, and McGovern's evaluation was the only
examination conducted around the time of the murder, rendering
the evaluation important to the truth-seeking function of the
court. See Commonwealth v. Seabrooks, 433 Mass. 439, 448-450
(2001). The defendant's apparent inability to recall the murder
                                                                     23


    B.   Prejudice.     Although the presence of the police

officers did not waive the psychotherapist-patient privilege, we

conclude that any error in the admission of McGovern's testimony

would not have prejudiced the defendant because the evidence of

the defendant's premeditation and criminal responsibility was

overwhelming.   Perhaps most significantly, the defendant had

repeatedly stated that "even if he killed [the victim's sister]

or [the victim], nothing would happen to him because . . . he

was bipolar."   He also made his intentions clear to the victim's

mother months before the murder, stating, "When you get to

Kenya, be prepared to receive two coffins, because I'm going to

kill these daughters of yours.    And I'm starting with [the

victim's sister].     [She] will not raise my children.   Instead,

they'll be raised by the [S]tate."

    On the night of the murder, he acted in conformance with

this plan:   first attacking the victim's sister, and then

attacking the victim.    Further, the defendant appeared to act

normally up until the night of the killing, even running errands


not only inhibited the jury's ability to evaluate his mental
state but also interfered with defense counsel's own expert's
ability to evaluate whether he lacked criminal responsibility.
Insight into the defendant's mental state shortly after the
crimes were committed would thus have been very helpful in
evaluating his primary defense at trial. The trial judge,
however, would have had to make findings and weigh all the
factors set out in Seabrooks, supra at 449-450, including
whether the defendant consulted with counsel before speaking to
McGovern, which he did not.
                                                                  24


with the victim.    See Commonwealth v. Griffin, 475 Mass. 848,

856-857 (2016).    There was also compelling evidence that the

attack was planned.    He brought the murder weapon with him,

hidden in his sock, to the victim's sister's apartment.      When he

stabbed the victim in a very small, narrow space, he did so

carefully enough to avoid injuring their one year old daughter,

who was crawling between the defendant and the victim.

Moreover, the defendant's own expert testified that the

defendant "certainly understood the wrongfulness of the [murder]

immediately after the events," because he fled the crime scene

and disposed of the murder weapon.   Given the substantial

evidence of premeditation and criminal responsibility, the

admission of the defendant's statement to McGovern about wanting

to kill his girl friend did not prejudice the defendant.

    iii.   Due process.    For the first time on appeal, the

defendant argues that the admission of his statement to McGovern

also violated his Federal and State due process rights because

she did not provide him Lamb warnings indicating that the

statement would not be confidential.    He cites two cases

involving the Federal and State constitutional privileges

against self-incrimination for this proposition.   "For the

privileges [against self-incrimination] to attach, the State

must compel the defendant to produce testimonial evidence."

Commonwealth v. Seabrooks, 433 Mass. 439, 451 (2001).     As
                                                                   25


previously discussed, the defendant's statement was voluntary

and was not compelled.   Further, Lamb warnings were not

required, as the psychotherapist's questioning was not court-

ordered or for the purposes of producing evidence against him.

See Lamb, 365 Mass. at 270.

    b.    Jury instructions.   The defendant argues that the trial

judge, who was not the motion judge, erred in instructing the

jury for four separate reasons.   For the reasons discussed

below, none of these arguments is persuasive.

    i.    Inference of sanity.   On the issue of criminal

responsibility, the trial judge in this case instructed the jury

as follows:   "[The Commonwealth has] to prove that the defendant

was sane; that is, was criminally responsible.    If you feel it

appropriate you may take into account that the great majority of

people are sane, and that there is a resulting likelihood that

any particular person is sane."   This instruction was given

pursuant to our then-current case law, see Commonwealth v.

Keita, 429 Mass. 843, 846 (1999) ("A jury instruction concerning

the presumption of sanity should be given in every case in which

the question of the defendant's criminal responsibility is

raised"), as well as the Model Jury Instructions on Homicide in

effect at the time.   See Model Jury Instructions on Homicide 51

(1999).   In Commonwealth v. Lawson, 475 Mass. 806, 814-815 & n.8

(2016), we held that, "given the meager weight of [the inference
                                                                  26


that a defendant is probably sane because most people are sane]

and the risk of juror confusion regarding the burden of proof,

judges should not instruct juries regarding this inference."

     "Here, the defendant is entitled to the benefit of Lawson,

as that case was released while the defendant's appeal was

pending on direct review."   Commonwealth v. Muller, 477 Mass.

415, 431 (2017).   As defense counsel objected to the sanity

presumption at trial, even though Lawson had not yet been

issued, we review for prejudicial error.   See Commonwealth v.

Cole, 473 Mass. 317, 325 (2015).

     In this case, the trial judge "strongly and specifically

instructed that the burden is on the Commonwealth to prove

criminal responsibility beyond a reasonable doubt."17   Muller,


     17Regarding the burden of proof on criminal responsibility,
the trial judge stated:

     "[A]s to all of these charges, the Commonwealth also has to
     prove to you that defendant did not lack criminal
     responsibility. Remember the burden of proof is always on
     the Commonwealth. The Commonwealth has to prove that the
     person committed the crime charged, and that he was at the
     time in such a mental state that he did not lack criminal
     responsibility. If you're satisfied beyond a reasonable
     doubt that the defendant committed the crime -- any of the
     crimes that I have defined for you, you must decide whether
     the Commonwealth has met an additional burden. The
     Commonwealth also must prove that the defendant was
     criminally responsible when he committed the crime
     charged. . . . The Commonwealth must prove that the
     defendant was criminally responsible beyond a reasonable
     doubt. The burden is not on the defendant to prove a lack
     of criminal responsibility. Instead, the burden is on the
                                                                    27


477 Mass. at 431, quoting Commonwealth v. Griffin, 475 Mass.

848, 863 (2016).    Further, as discussed above, there was

overwhelming evidence of criminal responsibility.    See Muller,

supra, quoting Griffin, supra.    Thus, the defendant was not

prejudiced by any such error due to the overwhelming evidence of

criminal responsibility and the trial judge's detailed

instructions on the burden of proof for criminal responsibility.

See Griffin, supra.

     ii.    Consequences of not guilty verdict.   The trial judge

instructed the jury on the consequences of finding the defendant

not guilty by reason of insanity, as permitted by Commonwealth

v. Mutina, 366 Mass. 810, 823 & n.12 (1975) (Mutina instruction)

and our Model Jury Instructions on Homicide in effect at the

time of trial.18   In Commonwealth v. Chappell, 473 Mass. 191,



     Commonwealth to prove criminal responsibility beyond a
     reasonable doubt. Under the law, the Commonwealth bears
     the burden of proving beyond a reasonable doubt the
     defendant committed the crime or crimes with which he's
     charged, and also that the defendant is criminally
     responsible for his conduct."

     18   The trial judge instructed:

     "[I]n in the event that the defendant is found not guilty
     by lack of criminal responsibility . . . , the District
     Attorney . . . may petition . . . for his commitment . . .
     if in that proceeding the Commonwealth proves beyond a
     reasonable doubt that the defendant is mentally ill at the
     present time, and that his discharge would create a
     likelihood of serious harm to himself or others. . . .
     [T]he order of commitment is thereafter periodically
                                                                  28


205-206 (2015), we held that, going forward, Mutina instructions

should "omit[] references to specific time frames for

observation and mention[] the potential for successive

commitment orders that could span the duration of the

defendant's life."   The defendant argues for the first time on

appeal that the jury instructions created a substantial

likelihood of a miscarriage of justice for failing to include

the supplemental jury instructions from Chappell.

    We have previously stated that it is not error for a judge

to have given the Mutina instruction when it was the governing

model jury instruction at the time of trial.   See Commonwealth

v. Dunn, 478 Mass. 125, 139 (2017).   This is because we held in

Chappell, 473 Mass. at 205, that the trial judge in that case

did not err in providing the Mutina instruction.    Rather, in

Chappell, the Mutina instruction was changed prospectively to

"better explain to the jury 'what protection they and their

fellow citizens will have if they . . . arrive at a verdict of

not guilty by reason of [lack of criminal responsibility].'"

Dunn, supra, quoting Chappell, supra at 206.   Thus, because the

trial here took place before our decision in Chappell, the

instruction was proper and did not create a substantial



    reviewed[,] . . . [and] [i]f the Commonwealth fails to
    prove these matters beyond a reasonable doubt, the
    defendant is discharged."
                                                                   29


likelihood of a miscarriage of justice.     See Commonwealth v.

Piantedosi, 478 Mass. 536, 550 (2017).

     iii.   Reasonable doubt instruction.   The defendant claims

that the trial judge's instruction on reasonable doubt created a

substantial likelihood of a miscarriage of justice because it

"was identical to the instruction that this court criticized and

modified prospectively" in Commonwealth v. Russell, 470 Mass.

464, 477-478 (2015).   Here, the trial judge instructed:

     "Proof beyond a reasonable doubt does not mean proof beyond
     all possible doubt, for everything in the lives of the
     human beings is open to some possible or imaginary doubt.
     On the other hand, it is not enough for the Commonwealth to
     establish a probability, even a strong probability, that
     the defendant is more likely to be guilty than not
     guilty. . . . [P]roof beyond a reasonable doubt is proof
     that leaves you firmly convinced of the defendant's guilt.
     There are very few things in this world that we know with
     absolute certainty, and in criminal cases the law does not
     require proof that overcomes every possible doubt. If,
     based on your consideration of the evidence, you are firmly
     convinced that the defendant is guilty of the crime
     charged, you must find him guilty. If, on the other hand,
     you think there is a real possibility that he is not
     guilty, you must give him the benefit of the doubt and find
     him not guilty."

Contrary to the defendant's assertion, the problematic language

in Russell was not used in the trial judge's instruction here.

See id. at 477 ("moral certainty" language required further

clarification).19   Further, the trial judge's instruction




     19We also stated in Commonwealth v. Russell, 470 Mass. 464,
479 (2015), that the new instruction provided therein was to
                                                                   30


contains language we did not deem improper in Russell.      See id.

at 471-474 (rejecting argument that "firmly convinced" language

lowered Commonwealth's burden of proof, or that "real

possibility" language shifted burden of proof).   Thus, the

defendant's argument is without merit.

     iv.    Additional instruction on criminal responsibility.

For the first time on appeal, the defendant argues that the jury

should have been instructed that his "failure to take his

prescribed medication did not preclude a finding that he was not

criminally responsible."    The defendant asserts that because the

jury were not provided with this instruction, there was a

substantial likelihood of a miscarriage of justice.   The

defendant's argument assumes that, without such an instruction,

the jury may have found him criminally responsible on the basis

of his failure to take his prescribed medication.   In support of

his argument, he cites two prior cases involving instructions on

voluntary alcohol or drug usage, Commonwealth v. Berry, 457

Mass. 602 (2010), and Commonwealth v. DiPadova, 460 Mass. 424

(2011).20



apply prospectively, not retroactively.    See Commonwealth v.
Rakes, 478 Mass. 22, 48 n.23 (2017).

     20Commonwealth v. Berry, 457 Mass. 602 (2010), and
Commonwealth v. DiPadova, 460 Mass. 42 (2011), were decided
after the defendant's trial, but while his case was pending on
direct appellate review. Thus, we must still decide whether the
                                                                 31


    In Berry, 457 Mass. at 618, we set out new jury

instructions for cases involving the interplay of drug or

alcohol usage and lack of criminal responsibility:

    "Where a defendant has an active mental disease or defect
    that caused her to lose the substantial capacity to
    appreciate the wrongfulness of her conduct or the
    substantial capacity to conform her conduct to the
    requirements of the law, the defendant's consumption of
    alcohol or another drug cannot preclude the defense of lack
    of criminal responsibility."

We also stated that "[w]here the Commonwealth offers evidence

that the defendant knew or had reason to know of the effects of

drugs or alcohol on her latent mental disease or defect, or on

the intensification of her active mental disease or defect," an

additional instruction must be provided.    Id. at 617 n.9.21



absence of the defendant's proposed instruction created a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Johnston, 467 Mass. 674, 704 (2014).

    21   That instruction was as follows:

    "However, if the Commonwealth has proved beyond a
    reasonable doubt that the defendant consumed drugs or
    alcohol knowing or having reason to know that the drugs or
    alcohol would activate a latent mental disease or intensify
    an active mental disease, causing her to lose the
    substantial capacity to appreciate the wrongfulness of her
    conduct or the substantial capacity to conform her conduct
    to the requirements of the law, then you would be warranted
    in finding the defendant criminally responsible for a crime
    in which you find she knowingly participated. In deciding
    what the defendant had reason to know about the
    consequences of her consumption of drugs or alcohol, you
    should consider the question solely from the defendant's
    point of view, including her mental capacity and her past
    experience with drugs or alcohol."
                                                                  32


    In DiPadova, we further stated:

    "As in Berry, in this case, given the absence of a proper
    instruction, the jury could have misinterpreted the model
    instruction and concluded, erroneously, that even if the
    defendant's mental illness by itself caused him to lack
    substantial capacity, 'because [he] had consumed [drugs]
    that contributed to [his] incapacity, that would render the
    lack of criminal responsibility defense moot.'"

DiPadova, 460 Mass. at 435-436, quoting Berry, 457 Mass. at 618.

Unlike in Berry, there was also evidence in DiPadova, supra,

that the defendant "knew at the time of the murder that drugs

intensified the symptoms of his mental illness."   DiPadova,

supra at 436-437.   We therefore clarified that the jury should

have been instructed

    "(1) if the defendant's mental illness did not reach the
    level of a lack of criminal responsibility until he
    consumed drugs, he was criminally responsible if he knew
    (or should have known) that the consumption would have the
    effect of intensifying or exacerbating his mental
    condition; and, in contrast, (2) if the defendant's mental
    illness did reach the level of lack of criminal
    responsibility even in the absence of his consumption of
    drugs, it was irrelevant whether he took drugs knowing that
    they would exacerbate that condition."

Id. at 437.

    The concerns at issue in Berry and DiPadova are markedly

different from the ones presented here.   In each case, the jury

received erroneous instructions regarding the interaction of

mental illness and the voluntary consumption of alcohol or




Berry, 457 Mass. at 617 n.9.
                                                                     33


drugs, which suggested that the consumption of the alcohol or

drugs would negate a defense of lack of criminal responsibility.

Here, the defendant does not identify any specific instruction

as erroneous, such that it created juror confusion.    Nor could

he.   As the trial judge remarked, "one thing I am not going to

instruct [the jury] on is anything about the consumption of

alcohol or substances.   There's just no evidence of that.       So I

don't think this is an appropriate case for that."    No

instruction on the use of drugs, or lack thereof, was requested

by either party, and none was given.   Further, we discern

nothing in the trial judge's instructions on criminal

responsibility that would lead jurors to conclude that the

defendant's failure to take his prescribed medication precluded

the jury from finding him not criminally responsible.      The

instructions appropriately focused the jury on whether the

defendant was criminally responsible at the time of the murder,

not on the effect, if any, that the failure to take prescribed

medicine could have on this determination.    Cf. Commonwealth v.

Shin, 86 Mass. App. Ct. 381, 388 (2014).     Thus, the jury

instructions in this case do not create the same potential for

juror confusion as existed in Berry or DiPadova.22



       We further note that the failure to take prescription
      22

medication is not the same as the voluntary consumption of drugs
or alcohol. See State v. Eager, 140 Haw. 167, 175 (2017).
                                                                  34


     Although defense counsel did refer to the defendant's

failure to take his medication, stating in closing argument that

"[u]nless properly treated and medicated the disease takes over,

and that's what happened to [the defendant]," the Commonwealth

never introduced evidence or argued at trial that the defendant

was criminally responsible because he voluntarily chose not to

take the medication that treated his mental illness.   To the

contrary, the Commonwealth primarily argued that the defendant's

mental illness did not render him criminally irresponsible to

begin with.   The prosecution only referred to the defendant's

failure to take his medication to express skepticism that it

negatively affected his behavior.   The prosecutor stated in her

closing argument that "[i]t's a disease that waxes and wanes,

that cycles over months, that even stopping his medications

. . . would take days, weeks, or month[s] for the effect of that

to be noticeable."23   In these circumstances, where the defendant



There are many reasons why an individual may fail to take his or
her prescribed medication. See Commonwealth v. Shin, 86 Mass.
App. Ct. 381, 388 (2014) ("[M]entally ill people fail to take
prescribed medication for a myriad of reasons, including, for
example, side effects that may be otherwise dangerous to their
health. . . . In addition, some people are unable to obtain the
appropriate medication because of lack of money or access to
medical care, or problems with necessary paperwork . . .").

     23Further, the prosecutor had elicited testimony from the
Commonwealth's expert that failure to take the defendant's mood
stabilizing medication "would take weeks, months . . . to have
an [e]ffect on this -- of the peaks and valleys [of the
                                                                  35


argues for an instruction on a theory of criminal responsibility

that was not presented at trial, we conclude that no such

instruction was required.     Cf. Commonwealth v. Harris, 464 Mass.

425, 434-435 (2013) (no curative instruction required where,

evaluating jury instructions as whole, no jury could have

improperly concluded Commonwealth was relieved of burden of

proof).

    c.    Right to jury-waived trial.    The defendant requested a

jury-waived trial, but his request was denied pursuant to G. L.

c. 263, § 6, which does not provide defendants in a capital case

the ability to waive their right to a jury trial.    The defendant

asks that we find this statute unconstitutional, and in so

doing, overturn our holding in Commonwealth v. Francis, 450

Mass. 132, 137 (2007) (concluding G. L. c. 263, § 6, does not

violate defendants' equal protection or due process rights).     In

support of this argument, the defendant asserts that jurors are

biased against finding defendants not criminally responsible,

and that jurors may have difficulty understanding instructions

on criminal responsibility.    Much like in Francis, these



defendant's mood]. It's not like a diabetic going off instantly
today and tomorrow near trouble with their blood sugar. This is
a chemical that kind of the brain is in over a long period of
time. It takes the peaks and the valleys off. Helps some
people. But it -- sometimes even on [the medication], a
person's going to rocket right through the high into a manic
episode, manic psychosis, that requires hospitalization."
                                                                  36


"arguments are policy matters suitable for legislative

consideration," not judicial intervention.   Id.24

    d.   Review under G. L. c. 278, § 33E.   We have reviewed the

record pursuant to G. L. c. 278, § 33E, and discern no basis to

set aside or reduce the verdict of murder in the first degree or

to order a new trial.   Accordingly, we decline to exercise our

authority.

                                   Judgments affirmed.




    24 The defendant also notes that the third conviction of a
habitual offender is considered a "capital case" for the
purposes of G. L. c. 278, § 33E, see G. L. c. 279, § 25 (b), but
is not considered a "capital case" under G. L. c. 263, § 6.
Thus, "three-strike" habitual offenders are entitled to the same
§ 33E review as defendants convicted of murder in the first
degree, but may still waive their right to a jury trial. The
defendant fails to expand on this argument, but presumably sees
this as an equal protection violation. As we stated in
Commonwealth v. Francis, 450 Mass. 132, 135 (2007), "[i]t is
reasonable for the Legislature to treat defendants facing a
charge of murder in the first degree differently from other
defendants." Further, we acknowledged that there was a
difference between the definition of "capital" under G. L.
c. 278, § 33E, and that under G. L. c. 263, § 6, but rejected
the argument that any such difference requires allowing
defendants charged with murder in the first degree the ability
to waive their right to a jury trial. See Francis, supra at
137. For substantially the same reasons stated in Francis, we
discern no equal protection violation here.
