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SJC-11950

                 COMMONWEALTH   vs.   JOSEPH WRIGHT.



        Essex.       November 10, 2017. - March 15, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Homicide. Constitutional Law, Admissions and confessions,
     Voluntariness of statement. Evidence, Admissions and
     confessions, Voluntariness of statement, Expert opinion,
     Exculpatory, Intoxication. Mental Impairment.
     Intoxication. Practice, Criminal, Capital case, Admissions
     and confessions, Voluntariness of statement, Discovery,
     Assistance of counsel, Preservation of evidence. Witness,
     Expert.



     Indictments found and returned in the Superior Court
Department on June 28, 2012.

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


     David H. Mirsky (Joanne T. Petito also present) for the
defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.   The defendant, Joseph Wright, appeals from two

convictions of murder in the first degree.    He urges the
                                                                     2


reversal of his convictions on four grounds.   First, he contends

that the pretrial motion judge erroneously denied his motion to

suppress statements he made to Canadian law enforcement

officers.   Second, he argues that the trial judge committed a

reversible error in ordering the pretrial disclosure of the

defendant's mental health expert's report regarding the

defendant's mental condition at the time of the crimes, which

the prosecution had in its possession during its subsequent

cross-examination of the defendant.    Third, the defendant argues

that the evidence at trial demonstrates his lack of criminal

responsibility for the murders, and relatedly, that his trial

counsel's failure to argue a lack of criminal responsibility

defense before the jury constitutes ineffective assistance of

counsel.    Fourth, he argues that State police investigators

failed to collect certain evidence relevant to his intoxication

at the time of the crimes, thereby denying the defendant his

right to a "complete defense."    Having considered the

defendant's arguments, and, more broadly, "the whole case on the

law and the facts" pursuant to our duty under G. L. c. 278, §

33E, Commonwealth v. Howard, 469 Mass. 721, 747 (2014), we

affirm the convictions.

    Factual and procedural background.     We recite the facts the

jury could have found in the light most favorable to the
                                                                   3


Commonwealth, but we reserve certain details of the facts and

proceedings for discussion of the individual issues.

     The defendant does not dispute that he killed his mother,

Donna Breau, and his grandmother, Melba Trahant, at their

residence in Lynn on April 30, 2012.    Following the killings,

the defendant drove to the Canadian border at Belleville, New

Brunswick, where he arrived at approximately 6 P.M. on May 1,

2012.    After hesitating in responding to questions posed by a

Canadian border services officer about his presence in Canada,

the defendant fled across the border, and was quickly

apprehended by a member of the Royal Canadian Mounted police.

The defendant subsequently confessed to the murders of his

mother and grandmother during an interview with two Canadian

border officers.    The defendant told the officers that he had

slit the victims' throats and left their bodies behind a local

elementary school.1   (Unbeknownst to the Canadian officers, the

victims' bodies had been found at 6:45 A.M. that day on the

grounds of the elementary school; both women appeared to have

suffered "pretty severe" neck wounds.)

     Custody of the defendant was transferred to United States

authorities, and in June, 2012, a grand jury returned two


     1 We save our discussion of the details of the defendant's
arrest and interrogation by Canadian law enforcement officers,
as well as the defendant's pretrial motion to suppress those
statements, for our analysis of that issue.
                                                                  4


indictments charging the defendant with murder in the first

degree of his mother and grandmother.   Before trial the

defendant moved to suppress his statements to the Canadian

authorities on the grounds that they were involuntary and that

he had not been given his Miranda warnings, but his motion was

denied.   The defendant was then tried before a jury in the

Superior Court between June 10 and 23, 2014.   The prosecution

proceeded under the theories of deliberate premeditation and

extreme atrocity or cruelty.   The defense's theory was that,

although the defendant admitted to the killings, they did not

constitute murder in the first degree because the defendant had

a "diminished capacity" due to drugs and alcohol, and therefore

he could not have deliberately premeditated or acted with

extreme atrocity or cruelty.

    The defendant took the stand as the sole defense witness.2

Although the defense had, before trial, provided notice of the

testimony of an expert psychologist who would testify as to the

defendant's mental condition at the time of the killings, the

defense ultimately chose not to call the expert, who had

prepared a report, appeared on the witness list, and was

available to testify.




    2  Before testifying, the defendant affirmed in a colloquy
with the judge that his decision to take the stand was his own
and that he was not pressured into doing so.
                                                                     5


    From an early age the defendant heavily abused drugs and

alcohol.   At ten years old he began smoking marijuana, and at

thirteen he started drinking hard alcohol.   At fifteen, and for

approximately the next two years, the defendant was in a

residential program for marijuana and alcohol abuse.     His

habitual drug abuse continued into adulthood, as the defendant

ingested (in his words) "anything [he] was able to [stick] in

[his] face," including mushrooms, "Ecstasy," cocaine, "crack"

cocaine, and heroin.   He also abused a variety of over-the-

counter and prescription drugs.

    At age twenty-two the defendant became unemployed and moved

in with his mother in her second-floor apartment in Lynn.      His

grandmother, who was in her eighties and had a close

relationship with the defendant, lived in the apartment on the

first floor.   The defendant had only intermittent contact with

his mother throughout his childhood because she was in Florida

and in and out of jail with her own drug problems.     She

eventually returned to Lynn when the defendant was sixteen or

seventeen, but he avoided contact with her until he was eighteen

or nineteen because "she wasn't there when [he] was a kid."

Upon moving in with her, the defendant testified, "things just

started getting out of hand" in terms of the pair's substance

abuse, and it was "pretty much a big party."   The defendant's

mother gave him her prescribed Klonopin, Ativan, and Wellbutrin
                                                                        6


medications.    The defendant was also regularly smoking

marijuana, snorting and injecting heroin, and smoking crack

cocaine.

    The defendant testified to the details of the killings.        He

had been abusing his mother's Klonopin virtually "nonstop" since

his birthday on April 9.    Also, after having a cyst removed from

his forehead four or five days before April 30, the defendant

began hearing a voice inside his head.     On the evening of April

30, the defendant recalled going to the liquor store and

purchasing two forty-ounce containers of beer, which he brought

home and drank with his mother at about 6 or 7 P.M.     Before

leaving the apartment to purchase marijuana, the defendant

ingested a "handful" of Klonopin.     He brought home the marijuana

and smoked it with his mother.     His grandmother was downstairs

in her apartment, and at some point his mother went to bed.

    While the defendant sat on a recliner in the living room of

his mother's apartment, he heard a voice inside his head, and

the thought of killing his mother entered his mind.     He began

walking to the entranceway of his mother's bedroom, and the

voice he heard was telling him to kill her.     He recalled being

at the doorway, seeing his mother asleep on the bed, and walking

away.     The defendant then obtained a knife from the kitchen,

went into his mother's bedroom while she slept, and slashed her

throat.    He did not remember if she asked for help, but did
                                                                     7


recall she told him he was "fucked" and admitted to watching her

"bleed[] out" on the bed.

    At some point during the night, the defendant took the same

knife he used to kill his mother and went downstairs to his

grandmother's apartment, where he found her in the living room.

The defendant was not hearing any voice inside his head telling

him to kill his grandmother, but he thought she saw blood on him

and that she was going to call the police.    The defendant walked

up to her from behind, put a pillow over her face, and slashed

her throat.    She asked the defendant why he had done that, and

died in front of him.

    The defendant awoke at some point in the early morning on

May 1, 2012.    Not immediately recalling what had occurred, he

was shocked to find blood on the kitchen floor; he walked into

his mother's bedroom and found her dead with a "lot of blood,"

and went downstairs and found his grandmother "dead on her

couch."    The defendant "freaked out" and took more drugs and

alcohol.   He left the bodies at a nearby elementary school and

fled to Canada.   Following deliberations, the jury found the

defendant guilty of the murders of both victims on the theory of

extreme atrocity or cruelty, and the defendant was sentenced to

consecutive life terms.     Forgoing a motion for a new trial, the

defendant filed a timely notice of appeal in June, 2014, and the

case was entered in this court the following year.
                                                                     8


     Discussion.   1.   Defendant's statements to Canadian

authorities.   The defendant first challenges his convictions on

the ground that his statements to Canadian border officers were

involuntary and therefore inadmissible.    The voluntariness of

the defendant's statements was not a live issue at trial, so the

issue was not submitted to the jury.    See, e.g., Commonwealth v.

Sheriff, 425 Mass. 186, 193 (1997).3    Yet the defendant did move

to suppress those statements before trial, and also objected to

their introduction at trial through the testimony of certain

Canadian law enforcement officers.     We therefore treat the

defendant's argument as a claim of error in the denial of his

pretrial motion to suppress.

     We briefly recount the relevant facts concerning the

defendant's statements to the Canadian authorities, as found by

the motion judge following an evidentiary hearing.4    At


     3 The defendant testified on direct examination that the
Canadian authorities allowed him to rest before the interview,
and did not yell, threaten, or otherwise coerce him during the
interview. Following the close of evidence, defense counsel
specifically asked "not to give the voluntariness" instruction
(also known as a "humane practice" instruction), based on his
concern that it might "water down" the requested DiGiambattista
jury instruction, which applies where there is no recording of a
defendant's interrogation, as here. Commonwealth v.
DiGiambattista, 442 Mass. 423 (2004). The trial judge provided
the jury with the DiGiambattista instruction.

     4 "In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error but
conduct an independent review of his ultimate findings and
conclusions of law" (citation and quotations omitted).
                                                                       9


approximately 8 P.M. on May 1, 2012, the defendant was

apprehended after illegally crossing the border into Canada --

specifically, the port of entry at Woodstock, New Brunswick,

which borders Houlton, Maine.     He was arrested by a member of

the Royal Canadian Mounted police (RCMP), who read the defendant

a "caution" that stated:     "[Y]ou need not say anything, you have

nothing to hope from any promise or favor and nothing to fear

from any threat whether or not you say anything.        Anything you

say may be given in evidence.     Do you understand?"     The

defendant indicated he understood, and said he wished to speak

to an attorney.     This information was relayed to Canadian border

officers at the Woodstock crossing, where the RCMP officer

brought the defendant.     Upon his arrival, the border officers

asked the defendant, who was in custody, to disrobe, because

there was blood on the defendant's clothing that the officers

wished to preserve as potential evidence.     The defendant did not

appear to be under the influence of any drugs or alcohol, but

informed the officers that he had smoked "a little" marijuana

that day.

    The defendant was then taken by two border officers to an

interview room.     The defendant was not handcuffed and appeared

"fully oriented."     One of the officers read the defendant a



Commonwealth v. Weaver, 474 Mass. 787, 793 (2016), cert. denied,
137 S. Ct. 809 (2017).
                                                                     10


"secondary caution," similar to the one read to him by the RCMP

officer, and informed him of his right under the Vienna

Convention to speak with a member of the United States

government.    The officer also informed the defendant of his

right to speak with "duty counsel," an attorney paid for by

Canada to represent someone who does not have his or her own

attorney, and the defendant indicated he would like to speak

with duty counsel.    The officer explained the charge the

defendant was facing so that the defendant could inform duty

counsel why he was being held (i.e., failing to stop and speak

to immigration officers at the border).

    At that point the defendant began to laugh and said,

"That's nothing, jail here or jail there, it doesn't make any

difference."    He then asked the officers, "[D]o you want to know

why I ran[?]"    One of the officers interrupted the defendant and

advised him for a third time that he did not have to say

anything and that anything he did say might be used in evidence.

The officer then asked the defendant why he ran.     The defendant

responded that he had killed his mother and grandmother by

slitting their throats, and informed the officers what he had

done with the murder weapon (the knife), where he had placed

their bodies, and why he had committed the crimes.     After these

responses, the defendant "slumped down in his chair, stopped

speaking, and appeared relieved."    Throughout the confession the
                                                                    11


defendant "was relaxed, calm, [and] never agitated," and

understood what he was doing and what he was being asked.     The

defendant's statements were not recorded.

     Before trial, the defendant argued that his statements

should have been suppressed because they were not voluntary and

the police did not give the defendant Miranda warnings before

questioning him.    The motion judge held first that because the

defendant's statements were given to foreign police officers,

Miranda v. Arizona, 384 U.S. 436 (1966), did not apply.     The

judge further concluded that "all the evidence points to the

fact that [the defendant's] statements were made voluntarily and

knowingly and [were] the product of his own rational intellect."

     We discern no error in these conclusions.   First, we have

previously held that Miranda does not govern interrogations

"carried out by foreign officials in a foreign country," and

that statements made to foreign police are admissible if they

were voluntary.    Commonwealth v. Wallace, 356 Mass. 92, 96-97

(1969).5   We explained that "applying the Miranda rule to foreign

police officers will not affect their conduct, and therefore we

decline to so extend the scope of that decision."    Id.   Numerous

courts that have more recently addressed this question have

reached the same conclusion.   See, e.g., United States v.

     5 Wallace, like this case, involved a defendant's statements
made to Canadian law enforcement officers. Commonwealth v.
Wallace, 356 Mass. 92, 96-97 (1969).
                                                                   12


Yousef, 327 F.3d 56, 145 (2d Cir.), cert. denied, 540 U.S. 933

(2003) ("the law is settled that statements taken by foreign

police in the absence of Miranda warnings are admissible if

voluntary"); Fisher v. United States, 779 A.2d 348, 353-354

(D.C. 2001), cert. denied, 534 U.S. 1095 (2002).   "[B]ecause the

United States cannot dictate the protections provided to

criminal suspects by foreign nations and one of the principal

purposes of the exclusionary rule -- deterrence of unlawful

police activity -- is absent when foreign [officers] direct an

interrogation, a different rule applies to statements elicited

by foreign officials."   United States v. Abu Ali, 528 F.3d 210,

227 (4th Cir. 2008), cert. denied, 555 U.S. 1170 (2009).   The

defendant's statements to the Canadian authorities are

admissible so long as they were voluntary.6

     The motion judge did not err in concluding that the

defendant's statements were indeed voluntary.   "A voluntary

statement is one that is the product of a rational intellect and


     6 While "courts recognize two exceptions to the general rule
regarding the application of Miranda . . . in a foreign
jurisdiction" -- (1) "where the investigatory conduct is so
inconsistent with our notions of due process that it 'shocks the
conscience' of a [United States] court," and (2) "when a foreign
officer acts as an agent of [United States] law enforcement"
(citation omitted), Fisher v. United States, 779 A.2d 348, 354
(D.C. 2001), cert. denied, 534 U.S. 1095 (2002) -- neither
exception applies here. The first is plainly not at issue, and
as for the second, the pretrial motion judge specifically found
that the Canadian authorities were not acting as agents for
United States law enforcement officers.
                                                                   13


a free will, and not induced by physical or psychological

coercion" (citation and quotations omitted).    Commonwealth v.

Monroe, 472 Mass. 461, 468 (2015).   As mentioned, the motion

judge found that there were no signs the defendant was

intoxicated or otherwise did not understand what he was doing or

being asked; the judge also found no evidence of "trickery,"

"physical distress," or "that [the defendant] was made any

promises or any threats."   The defendant does not dispute those

factual findings (nor do we discern error in them), but he

highlights the fact that the interrogation continued after he

invoked his right to speak with duty counsel.   This argument is

unavailing, as the requirement that police halt questioning

after an individual states he or she wishes to speak with an

attorney stems from Miranda, 384 U.S. at 474, see Commonwealth

v. Obershaw, 435 Mass. 794, 800 (2002), which does not apply

here.7

     2.   Disclosure of expert report to the prosecution.

Defense counsel clarified before trial that the defense theory

would be based on the defendant's "diminished capacity" due to

drug and alcohol abuse.   Six weeks before jury selection, the

defense offered its notice of expert witness, stating that it

     7 Hence, there was no error in the motion judge's conclusion
that "the fact that [the defendant] had not yet talked to a
lawyer does not in [any way] undermine [the] findings that . . .
the evidence shows beyond a reasonable doubt that he made these
statements voluntarily."
                                                                   14


would call a psychologist, Robert H. Joss, to testify about the

defendant's mental condition at the time of the crimes.8   By this

time Joss had already prepared a report on the defendant's

behalf, which included descriptions of "statements made by the

defendant relevant to the issue of [his] mental condition" at

the time of the killings, along with Joss's "opinions as to the

defendant's mental condition."   Mass. R. Crim. P. 14 (b) (2) (B)

(iii), as appearing in 463 Mass. 1501 (2012).

     The Commonwealth responded a week later by filing a motion

for reciprocal discovery regarding the defense expert, seeking,

in pertinent part, "[n]otice as to whether . . . Joss intends to

rely upon any statements of the defendant as the basis of his

opinion or testimony at trial," and stating that if so, "the

Commonwealth is entitled to an independent examination of the

defendant" pursuant to Mass. R. Crim. P. 14 (b) (2) (B).     The

motion was "allowed as to whether . . . Joss intends to rely

upon statements of the defendant"; the ruling further stated

     8 The notice advised that the defendant would call Robert H.
Joss to testify that "at the time of the offenses [the
defendant] was undergoing an unusual pattern of indiscriminate
substance abuse . . . and if not for this long history of drug
abuse the killing of his mother and grandmother would not have
happened." Joss would further testify that "[the defendant] was
experiencing the effects of a drug induced psychosis and
dissociative experiences related to his mother[']s abandonment
of him at the age of two at the time of the killings." The
notice did not clarify, as it was required to, whether Joss
"intend[ed] to rely in whole or in part on statements of the
defendant as to his . . . mental condition." Mass. R. Crim. P.
14 (b) (2) (A) (iii), as appearing in 463 Mass. 1501 (2012).
                                                                   15


that "[i]f [the defendant] provides notice that he intends to

offer expert testimony as to his mental state based in part on

his statements[,] the Commonwealth may request a [rule] 14 (b)

(2) (B) examination" of the defendant by a court-appointed

examiner.

    The record does not reflect that the defense responded to

the motion judge's order, however, and the prosecution did not

ultimately seek an independent examination of the defendant.

Before jury selection, on the first day of trial proceedings,

the defense repeated to the trial judge its intention to call

Joss as an expert witness.    The judge then asked the

prosecution, "[A]re you going to have somebody?" -- presumably

referring to an expert of its own -- to which the prosecution

responded, "No."    Joss appeared on the witness list read to

potential jurors.   Following jury empanelment and just before

opening statements, the prosecution said that while it did not

seek an independent examination of the defendant, it did seek

access to Joss's report.     Over the defendant's objection, the

judge "order[ed] that the report be turned over now, where there

has been a commitment by the defense to the diminished capacity

[of the defendant]."

    The defendant argues that this order violated Mass. R.

Crim. P. 14 (b) (2), which governs discovery related to expert

testimony on the issue of the defendant's "mental condition."
                                                                  16


The prosecution should never have received Joss's report, the

defendant contends, because it never sought an independent,

court-ordered examination of the defendant under rule

14 (b) (2) (B), which, he argues, is a prerequisite to the

rule's requirement that a defendant provide his expert report to

the prosecution.   The defendant concludes that the prosecution's

later use of Joss's report during its cross-examination of him

violated his State and Federal rights against self-

incrimination, and warrants reversal of his convictions.9

     "As our task is to interpret a rule of criminal procedure,

we begin with the plain language of the rule."   Commonwealth v.

Hanright, 465 Mass. 639, 641 (2013).   Rule 14 (b) (2) provides

     9 As mentioned, the defendant took the stand in his own
defense at trial. On direct examination he did not recount the
details of the killings themselves. He testified that he did
not immediately remember what happened between the time that he
returned to his mother's apartment with marijuana, and when he
woke up to find his mother and grandmother dead. The defendant
stated that "about a week later" he "started really thinking
hard," and remembered that he had been awake for "two days
straight without sleeping," and that he heard a voice in his
head "telling [him] to just kill [his] mother." He also
recalled getting rid of the victims' bodies.

     Before cross-examining the defendant, the prosecution
sought permission to impeach the defendant with statements he
made to Joss, which were incorporated into Joss's report. The
judge ruled that while the prosecution could not introduce the
statements themselves to impeach the defendant, it could use its
knowledge of the content of those statements when formulating
its cross-examination. While it is not entirely clear to what
extent the prosecutor's knowledge of the contents of Joss's
report guided his cross-examination of the defendant, the
defendant did more fully recount the details of the killings
during cross-examination.
                                                                  17


the "[s]pecial [p]rocedures" governing pretrial discovery

regarding defenses based on a criminal defendant's "[m]ental

[h]ealth [i]ssues."10   Subdivision (b) (2) (A) requires a

defendant to notify the prosecution if he "intends at trial to

raise as an issue his or her mental condition at the time of the

alleged crime, or . . . intends to introduce expert testimony on

[his or her] mental condition at any stage of the proceeding."

The next subdivision, (b) (2) (B), states that where it appears

(based on [1] the defendant's notice of expert testimony, [2]

"subsequent inquiry by the judge," or [3] "developments in the

case") that the defendant's expert will rely on "statements of

the defendant as to his or her mental condition . . . , the

court, on its own motion or on motion of the prosecutor, may

order the defendant to submit to an examination" consistent with


     10As a preliminary matter, we are satisfied that the
defendant's "diminished capacity" defense, which was to include
expert testimony from a psychologist stating that the defendant
was experiencing "a drug induced psychosis" at the time of the
crime, implicates the defendant's "mental condition" such that
it is subject to the "[s]pecial [pretrial discovery]
[p]rocedures" of Mass. R. Crim. P. 14 (b) (2), as appearing in
463 Mass. 1501 (2012). See Commonwealth v. Newton N., 478 Mass.
747 (2018), citing Mass. R. Crim. P. 14 (b) (2) (A) ("due to the
complex nature of mental impairment, which is often presented at
trial through expert testimony, we require defendants to provide
the same notice regarding their intent to raise an issue of
mental impairment at trial as we do their intent to raise a
defense of criminal responsibility"). "[A]ll procedures and
provisions applicable to such discovery are set out in rule
14 (b) (2)," and are not subject to the "automatic and
discretionary [discovery] provisions" of rule 14 (a).
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 319 (2010).
                                                                  18


the detailed provisions of Mass. R. Crim. P. 14 (b) (2) (B) and

(C).11

     The same subdivision, (b) (2) (B) -- specifically, part

(iii) -- also establishes a regime for the disclosure of mental

health expert reports.   This disclosure occurs, in pertinent

part, "after the defendant expresses the clear intent to raise

as an issue his or her mental condition, [and] the judge is

satisfied that (1) the defendant intends to testify, or (2) the

defendant intends to offer expert testimony based in whole or in

part on statements made by the defendant as to his or her mental

condition at the relevant time."   Mass. R. Crim. P. 14 (b) (2)

(B) (iii) (c).   While the paragraph in which this language

appears refers to the disclosure of the court-appointed

"examiner's report," the next paragraph clarifies that "[a]t the

time [the examiner's report] is disclosed to the parties, the

defendant shall provide the Commonwealth with a report of the

defense psychiatric or psychological expert(s) as to the mental

condition of the defendant at the relevant time."   Id.12


     11"As a practical matter, it is the prosecutor who
recommends the expert psychiatrist for appointment as the
examiner. We have recognized the court-appointed examiner as an
agent of the prosecution." Sliech-Brodeur, 457 Mass. at 318
n.23.

     12This provision ordering the disclosure of a defense
expert's report was inserted as part of the 2012 amendments to
the rule, following this court's opinion in Sliech-Brodeur, 457
Mass. at 324-326. Sliech-Brodeur involved a pretrial discovery
                                                                   19


    The defendant argues that because rule 14 (b) (2) (B) (iii)

contemplates an exchange of reports from both sides' experts --

one by the defense ("a report of the defense psychiatric or

psychological expert") and another by the court-ordered examiner

("examiner's report") -- in a case where the prosecution has not

sought a court-ordered examination, as here, a defendant has no

independent duty to disclose his or her expert's report.     We

disagree.   The fact that the rule discusses a defendant's

disclosure obligation in tandem with that of the court-appointed

examiner simply reflects the typical course in cases where a

defendant pursues a mental health defense:   after the defendant

expresses his or her intent to pursue that defense, the

prosecution will seek an independent examination regarding the

defendant's mental condition at the time of the crime.    Such was

the sequence of events in Sliech-Brodeur, 457 Mass. at 310,



order requiring the defendant to furnish his mental health
expert's notes and materials to the Commonwealth, who had
secured an independent expert; the Commonwealth provided the
defense materials to its expert, who relied on them when forming
his own opinion about the defendant's criminal responsibility.
Id. at 322. The court deemed this reversible error on the
grounds that "nothing in [rule 14 (b) (2)] obligates a
defendant, before trial, to provide the Commonwealth's expert
. . . with copies of her own expert witness's notes and other
materials." Id. at 321. Responding to "'confusion' surrounding
the sequence of production of mental health experts' materials,"
the court also provided for the amendment of rule 14 (b) (2) "to
require the defendant's expert to produce to the prosecution a
report that includes the defense expert's opinion [as to the
defendant's mental condition] and the bases and reasons for this
opinion." Id. at 325-326.
                                                                   20


which resulted in this provision.    While the rule affords the

prosecution the opportunity to obtain an independent examiner,

we do not interpret it to impose on the prosecutor an obligation

to do so or otherwise be denied access to the defense expert's

report.13

     Mental health defenses like the instant one represent

"complex issues for which the prosecutor should have time to

prepare."   Reporter's Notes (2012) to Rule 14 (b) (2),

Massachusetts Rules of Court, Rules of Criminal Procedure, at

197 (Thomson Reuters 2016).   See Sliech-Brodeur, 457 Mass. at

325 (explaining "our view . . . that the Commonwealth should

have advance notice of complex mental health issues that the

defendant intends to raise as part of his or her defense").       An

effective "[r]ebuttal of [such defenses] requires a degree of

expertise on the part of a cross-examiner that can only be

gained through pretrial research."   Reporter's Notes (Revised,

2004) to Rule 14 (b) (2), supra at 195.    This includes access to

the defense expert's report, without which the prosecution

cannot effectively impeach the expert's or the defendant's own

testimony during cross-examination, thereby undermining "rule 14


     13That the court-appointed examiner is an optional, not
mandatory, component of a prosecutor's trial strategy is
bolstered by the plain language of the rule, which states that
the court "may order the defendant to submit to an examination,"
not that it "shall" always do so (emphasis added). Mass. R.
Crim. P. 14 (b) (2) (B).
                                                                   21


(b) (2) (B)'s truth-seeking function."    Hanright, 465 Mass. at

644.    See Commonwealth v. Durham, 446 Mass. 212, 230, cert.

denied, 549 U.S. 855 (2006) (Marshall, C.J., dissenting)

(recognizing "the importance that cross-examination plays in the

'fact finder's assessment of the truth'" [citation omitted]).

Accordingly, consistent "with the trend of increased discovery

in criminal cases," Sliech-Brodeur, supra at 325, we interpret

rule 14 (b) (2) (B) (iii) to impose on a defendant an

independent duty to disclose his or her expert's report to the

prosecution "after the defendant expresses the clear intent to

raise as an issue his or her mental condition," and where "the

judge is satisfied that (1) the defendant intends to testify, or

(2) the defendant intends to offer expert testimony based in

whole or in part on statements made by the defendant as to his

or her mental condition at the relevant time."   Mass. R. Crim.

P. 14 (b) (2) (B) (iii).14



       We disagree with the defendant that the required
       14

disclosure of his mental health expert's report to the
prosecution implicates his right against self-incrimination. As
Chief Justice Gants (then Associate Justice) observed in his
dissent in Sliech-Brodeur, 457 Mass. at 340, that right "does
not apply to a defendant's statements to the psychiatrist [or
psychologist] retained by his attorney because these statements
were not compelled by the Commonwealth or the court; the
defendant voluntarily chose to speak to his defense expert."
"Nevertheless," the dissent explained, "disclosure to the
prosecution of the defense expert's reports and statements must
still wait until the defendant decides whether the expert will
testify at trial based in whole or in part on the defendant's
statements to the expert, because, until that decision is made,
                                                                  22


    Here, the judge ordered the defendant to turn over his

expert's report to the prosecution based on his conclusion that

"there has been a commitment by the defense to the diminished

capacity" of the defendant.   This was not in error.   By this

stage of the proceedings the defendant had expressed the "clear

intent to raise as an issue his . . . mental condition," Mass.

R. Crim. P. 14 (b) (2) (B) (iii), having explained before jury

empanelment that he was "seeking a murder two conviction . . .

based on diminished capacity," and that the defense would

include "psychiatric testimony."   And as discussed, over a month

before jury selection the defendant had filed his notice of

expert witness, informing the prosecution (and the judge) that

the defense would call Joss to testify "that at the time of the

offenses [the defendant] was undergoing an unusual pattern of

indiscriminate substance abuse" and "was experiencing the

effects of a drug induced psychosis" that led to the killing of

his mother and grandmother.   Joss then appeared on the list of

potential witnesses in the case.   On these bases, the judge

reasonably concluded that either (1) "the defendant intend[ed]

to testify," or, more likely, (2) "the defendant intend[ed] to



the defendant's statements to a defense expert retained by his
attorney are protected by the attorney-client privilege.
Reports and statements arising from such communications, while
not within the compass of a defendant's privilege against self-
incrimination, are protected by the work product doctrine"
(emphasis in original). Id. at 341.
                                                                   23


offer expert testimony based in whole or in part on statements

made by the defendant as to his . . . mental condition at the

relevant time."   Id.15

    3.   Lack of criminal responsibility and ineffective

assistance of counsel.     The defendant also seeks reversal of his

convictions on the grounds that he lacked criminal

responsibility for the murders; relatedly, he argues that trial

counsel's failure to present this argument to the jury

constitutes ineffective assistance of counsel.    In support of

these positions the defendant relies exclusively on Joss's

report, which he contends "contains clear evidence that [the

defendant] lacked criminal responsibility" for the murders.

    We reject both arguments for essentially the same reason:

having reviewed Joss's report, which is impounded, we simply

find no support for the defendant's position that he lacked

criminal responsibility.    To the contrary, Joss concluded that


    15 Rule 14 (b) (2) (B) (iii) vests a trial judge with
discretion when making this determination, given that it
conditions disclosure of the defense expert's report on the "the
judge [being] satisfied" that the defense will include either
the defendant's testimony or an expert's testimony based on the
defendant's statements (emphasis added). Such discretion is
necessary in cases such as this, where despite being ordered to
do so twice -- first, pursuant to Mass. R. Crim. P. 14 (b) (2)
(A) (iii), in the defendant's notice of a mental health defense,
and again by the court order granting the prosecution's motion
for reciprocal discovery regarding the defense expert -- the
defense apparently failed to clarify before trial whether Joss
would be relying on the defendant's statements regarding his
mental condition.
                                                                  24


the defendant did not have a mental disease or defect –- an

essential element of a defense based on lack of criminal

responsibility.    See Commonwealth v. McHoul, 352 Mass. 544, 546-

547 (1967) ("A person is not responsible for criminal conduct if

at the time of such conduct as a result of mental disease or

defect he lacks substantial capacity either to appreciate the

criminality . . . of his conduct or to conform his conduct to

the requirements of the law" [emphasis added]).    Rather, Joss

concluded that the "source" of the defendant's impaired mental

state at the time of the killings "was his ingestion of multiple

drugs in an abusive way in the days and hours leading up to the

[killings]."    This weighs strongly against the viability of a

defense of lack of criminal responsibility, because the

"[v]oluntary consumption of alcohol or drugs . . . do[es] not

qualify as [a] 'mental disease[] or defect[]' in the McHoul

formulation; as a result, a defendant whose lack of substantial

capacity is due solely to one of these conditions, and not to

any mental disease or defect, is criminally responsible"

(citation omitted).    Commonwealth v. DiPadova, 460 Mass. 424,

431 (2011).16   Contrast Commonwealth v. Mutina, 366 Mass. 810,


     16In light of Joss's conclusion that the defendant's drug
consumption was the source of his impairment, it is immaterial
that Joss erroneously relied on the definition of "mental
illness" under 104 Code Mass. Regs. § 27.05(1), which relates to
involuntary commitment.
                                                                   25


811-817 (1975) (reversing conviction of murder in first degree

where defendant presented "very strong evidence of his lack of

criminal responsibility" consisting of, among other things,

testimony of two psychiatric experts who concluded defendant's

schizophrenia prevented him from conforming his conduct to law,

and where prosecution failed to present "any affirmative

evidence of the defendant's sanity").17

     We similarly reject the defendant's contention that trial

counsel was ineffective for failing to present a lack of

criminal responsibility defense.   "The defendant did not file a

motion for a new trial and therefore rests his claim of

ineffective assistance of counsel solely on the trial record.

Such ineffective assistance of counsel claims are 'the weakest

form of such a challenge' because they lack 'any explanation by

trial counsel for his actions.'"   Commonwealth v. Griffin, 475

Mass. 848, 857-858 (2016), quoting Commonwealth v. Peloquin, 437

     17We also reject the defendant's suggestion that it was the
prosecution's burden to demonstrate that the defendant was
criminally responsible. Only where a defendant "asserts a
defense of lack of criminal responsibility and there is evidence
at trial that . . . would permit a reasonable finder of fact to
have a reasonable doubt whether the defendant was criminally
responsible" does the prosecution "bear[] the burden of proving
beyond a reasonable doubt that the defendant was criminally
responsible." Commonwealth v. Lawson, 475 Mass. 806, 811
(2016), quoting Commonwealth v. Keita, 429 Mass. 843, 849–850
(1999). As mentioned, the defense did not assert a lack of
criminal responsibility defense here; to the contrary, just
before opening statements, defense counsel reiterated that it
was "not bringing forward a criminal responsibility defense"
(emphasis added).
                                                                    26


Mass. 204, 210 n.5 (2002).   "Examining this claim under G. L.

c. 278, § 33E, 'we review the trial record alone to determine

whether a defense counsel's strategic or tactical decision

questioned on appeal was manifestly unreasonable when made and,

if so, whether the unreasonable decision resulted in a

substantial likelihood of a miscarriage of justice.'"     Griffin,

supra at 858, quoting Commonwealth v. Brown, 462 Mass. 620, 629

(2012).

    There were clear reasons for not pursuing a lack of

criminal responsibility defense at trial.    Compare Commonwealth

v. LaCava, 438 Mass. 708, 714 (2003) (where counsel's expert

opined defendant did not have mental disease or defect, not

unreasonable for counsel to consider that opinion as "serious

impediment" to insanity defense).   In addition to Joss's

conclusions, defense counsel also clarified before jury

selection -- "[j]ust so the record is clear" -- that he had

"talked to [the defendant] about [the defense's trial strategy]

at length" and that "diminished capacity by reason of alcohol

and drugs" was the defense that the defendant had "agreed to."

The strategic focus on the defendant's substance abuse at the

time of the killings was therefore not unreasonable and presents

no likelihood of a miscarriage of justice.

    4.    Alleged substandard evidence collection.   Last, the

defendant contends that he was denied his constitutional right
                                                                    27


to a "meaningful opportunity to present a complete defense,"

California v. Trombetta, 467 U.S. 479, 485 (1984), based on

State police investigators' failure to collect evidence that may

have been tied to the defendant's drug use -- specifically, a

number of prescription pill bottles in his grandmother's

apartment, and certain small plastic bags in his mother's

apartment that were consistent with drug packaging.   According

to the defendant, this evidence "was potentially useful to

support [his] defense that he possessed a diminished capacity to

form the required intent for first degree murder due to his

intoxication by drug use."

    We reject the defendant's argument, primarily because the

potentially exculpatory value of this evidence was not apparent

at the time of the State police investigation.   See Trombetta,

467 U.S. at 488-489 ("Whatever duty the Constitution imposes on

the States to preserve evidence, that duty must be limited to

evidence that might be expected to play a significant role in

the suspect's defense.   To meet this standard of constitutional

materiality, . . . evidence must . . . possess an exculpatory

value that was apparent before the evidence was destroyed

[footnote omitted]").    The significance of the defendant's drug

use did not come to light until nearly two years after the

police's investigation in this case, when the defendant first

raised his intoxication-based defense.    There is also no
                                                                   28


indication that the police intended to conceal such evidence

here, given that photographs from their investigation display

the prescription pill bottles and plastic bags.   "While the

prosecution remains obligated to disclose all exculpatory

evidence in its possession, it is under no duty to gather

evidence that may be potentially helpful to the defense."

Commonwealth v. Lapage, 435 Mass. 480, 488 (2001).

    Moreover, the jury were not, as the defendant suggests,

entirely precluded from considering this evidence, as those

photographs were submitted to the jury as exhibits.   And as was

the defendant's right under Commonwealth v. Bowden, 379 Mass.

472, 485-486 (1980), the defendant raised the issue of the

adequacy of the police's evidence collection at trial, and the

judge did not preclude the jury from considering those points

when deciding whether reasonable doubt existed as to the

defendant's guilt.   See Commonwealth v. O'Brien, 432 Mass. 578,

590 (2000) ("Bowden simply holds that a judge may not remove the

issue from the jury's consideration").

    5.   Review under G. L. c. 278, § 33E.   We have carefully

reviewed the entire record pursuant to our duty under G. L. c.

278, § 33E, and we discern no reason to order a new trial or to

reduce the convictions of murder in the first degree to a lesser

degree of guilt.

                                    Judgments affirmed.
