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SJC-11802

              COMMONWEALTH   vs.   CHRISTOPHER PIANTEDOSI.



      Middlesex.       October 6, 2017. - December 18, 2017.

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


Homicide. Mental Impairment. Intoxication. Insanity.
     Evidence, Intoxication, Insanity, Expert opinion. Witness,
     Expert. Constitutional Law, Fair trial. Due Process of
     Law, Fair trial. Fair Trial. Practice, Criminal, Capital
     case, Fair trial, Instructions to jury, Acquittal by reason
     of insanity.



     Indictments found and returned in the Superior Court
Department on June 7, 2012.

    The cases were tried before Diane M. Kottmyer, J.


     Robert S. Sinsheimer (Lisa A. Parlagreco also present) for
the defendant.
     Emily K. Walsh, Assistant District Attorney (Nicole L.
Allain, Assistant District Attorney, also present) for the
Commonwealth.


    GAZIANO, J.     A jury in the Superior Court found the

defendant guilty of murder in the first degree in the stabbing

death of his longtime girl friend, on theories of deliberate
                                                                     2


premeditation and extreme atrocity or cruelty.1   At trial, the

defendant conceded that he had killed the victim but asserted

that he lacked criminal responsibility for her death due to his

involuntary intoxication from having taken prescribed

antidepressant medications.    In this direct appeal from his

convictions, the defendant challenges the judge's refusal to

permit a defense expert to testify on direct examination to

hearsay statements made by the defendant; the introduction of

testimony by the Commonwealth's expert concerning what "drove"

the defendant's behavior; and the judge's failure to instruct

the jury that the consequences of a verdict of not guilty by

reason of insanity would include a potential psychiatric

commitment for life.    In addition, the defendant asks this court

to exercise its extraordinary authority under G. L. c. 278,

§ 33E, to reduce the verdict to murder in the second degree.

For the reasons that follow, we affirm the defendant's

convictions and, after a thorough review of the entire trial

record, decline to grant relief pursuant to G. L. c. 278, § 33E.

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

have found, reserving other details for later discussion of

particular issues.




     1
       The defendant also was convicted of malicious destruction
of the victim's personal property. See G. L. c. 266, § 127.
                                                                      3


     a.    Commonwealth's case.   The victim and the defendant were

involved in an eighteen-year relationship and had a daughter,

Alexa,2 who was a teenager at the time of these events.    The

victim had a son from another relationship, whom she and the

defendant were raising as their child.     The four lived as a

family for approximately six years in an apartment in a three-

family house then owned by the defendant's parents, and

thereafter for more than ten years in a rented house in

Burlington.    In April, 2012, the defendant moved into his

parents' house, explaining that he needed time and space away

from the victim.    The victim confided to a friend that she had

asked the defendant to leave due to his verbal and emotional

abuse.

     In the early evening of May 3, 2012, the defendant went, as

scheduled, to the house in Burlington to visit Alexa.     Alexa

noticed that he was "kind of acting strange."     The defendant

agreed to buy Alexa dinner, and the victim placed an order for

takeout food delivery.    While the three were together in the

living room, the defendant and the victim got into an argument.

At trial, Alexa was not certain of the topic of the

disagreement, but recalled that the defendant "started saying

something and she [was] getting mad.    So they were kind of like



     2
         A pseudonym.
                                                                        4


fighting back and forth."       The defendant instructed Alexa to go

to her room, and she did so.

       At around 6:30 P.M., Alexa used a tablet computer, which

she propped up on her window sill, to "video chat" with a

friend, Ethan.3      Alexa and Ethan were able to see and hear each

other using this computer program.       While they were talking,

Alexa thought that she heard the doorbell or a knock on the

door, and stepped out of her room believing that her takeout

food delivery had arrived.       Ethan stayed connected to the video

chat, waiting for Alexa to return.

       Alexa's parents were in the kitchen, arguing.     The victim,

who appeared distraught, picked up the telephone and threatened

to call the police.      The defendant snatched the telephone from

her.       He then removed a small knife from his pants pocket and

put it down on a living room table.       The victim seized the

knife, pointed it at the defendant, and implored him to leave

the house.      She repeatedly said, "Get out.   I'll call the cops.

You're scaring me."       As the victim cried, the defendant hugged

Alexa and said, "I love you."       Alexa replied, "Are you trying to

kill her or something?"

       The defendant went into the kitchen and stood there,

telling himself, aloud, that he was going to calm down.       He then

turned abruptly, grabbed a butcher knife from a knife block on

       3
           Also a pseudonym.
                                                                     5


the counter, and chased the victim.    The victim ran into Alexa's

room in full view of Ethan, who watched from his computer

screen.

    The victim was holding the bedroom door shut when the

defendant broke down the door and burst into the room.    The

force knocked the victim backwards onto the bed.    She screamed,

"No, Chris, stop.   I love you."   Alexa entered the room shortly

thereafter and attempted to pull the defendant away from the

victim by grabbing him around the neck.   The defendant pushed

her off.

    Through the video chat, Ethan watched the defendant shake

the victim forcefully and then stab her in the chest while she

was lying on the bed; Ethan screamed "Stop" into the computer

microphone, but the defendant did not react.    Alexa was still in

the room; she told the defendant that she was calling the

police, grabbed her cellular telephone, and ran from the room.

Ethan heard the victim say, "Remember," and the defendant

respond, "No, you got to die.   You got to die."   The defendant

stabbed the victim repeatedly until she fell off the bed onto

the floor.

    Alexa ran out of the house, where she encountered the food

delivery driver, who had just arrived.    Alexa sat in the vehicle

with the driver and telephoned 911.    Alexa and the driver

watched as the defendant walked away from the house toward his
                                                                       6


vehicle.    The delivery driver described the defendant as "stone

face[d]."    When police arrived, within minutes of Alexa's call,

they found the victim's body on the floor in the space between

the edge of Alexa's bed and the wall.      The victim had been

stabbed more than thirty times and the kitchen knife was

imbedded in her neck.

     The defendant left Burlington and eventually drove to

western Massachusetts.4    The next day, May 4, 2012, the defendant

drove his automobile into the parking lot of the State police

barracks in Weston.     He got out of his vehicle and lay on the

ground.     A public works employee driving nearby and saw the

defendant lying in front of his vehicle.      The employee tried to

rouse him but was unable to do so; the defendant remained

unresponsive.     The employee went into the barracks and summoned

police officers to help.    One of the officers, who recognized

the defendant from a police bulletin and media reports, placed

him under arrest.     Investigators searched the defendant's

vehicle and found handwritten notes on the dashboard.      One note

read, "Unarmed.     Just have to sleep."   Another portion of a note

recounted the stabbing.



     4
       Burlington police tracked the defendant's cellular
telephone to a location approximately thirty miles away, at a
shopping mall in Leominster. Police recovered the defendant's
bloody clothing and his cellular telephone from a Dumpster
behind the mall.
                                                                    7


    b.   Defendant's case.   After the Commonwealth rested its

case-in-chief, the defendant presented evidence concerning the

issue of his criminal responsibility on the day of the homicide.

The defendant called two witnesses:   his father and Dr. Wade C.

Meyers, a forensic psychiatrist.   The defendant also introduced

medical records from his admissions to the Lahey Clinic and Holy

Family Hospital, records relating to his psychiatric treatment

at the county jail and Bridgewater State Hospital, and a May 7,

2012, competency evaluation.

    The defendant's father provided background information

about the defendant, including describing the defendant's

"normal" relationship with the victim.   The father also

testified to the defendant's psychiatric hospitalization a few

days before the May 3, 2012, incident.   On April 29, 2012, the

father visited the defendant at the Holy Family Hospital

emergency room and observed that he was quiet and nontalkative.

According to medical records, the defendant had been admitted to

the hospital for self-inflicted injuries to his arms.      He was

diagnosed with depression and prescribed Prozac (to be taken in

the morning) and Trazodone (to be taken before bed).

    Upon the defendant's discharge on May 2, 2012, his father

picked him up from the hospital and drove him to a pharmacy to
                                                                       8


fill his prescriptions.5   The defendant was scheduled to attend

an outpatient program beginning on May 3, 2012.    He spent the

afternoon in his room but left to attend classes at a

professional school that evening; several of the students in his

class noticed that he seemed tired and unwell.    The next

morning, the defendant did not come downstairs from his bedroom

until approximately 11:30 A.M.; he was pale and dehydrated.       The

defendant left the house shortly thereafter, telling his father

that he was planning to pick Alexa up at school, because she had

a half-day off, and take her out for ice cream.

     Meyers evaluated the defendant to determine his mental

state at the time of the crime.   Based on interviews with the

defendant, Meyers's review of past psychiatric records,

neuropsychological testing, and other information, Meyers

concluded that on May 3, 2012, the defendant did not have the

capacity to appreciate the wrongfulness of his conduct and was

not able to conform his conduct to the requirements of the law.

Meyers opined that the defendant suffered from involuntary

intoxication from the antidepressants Prozac and Trazodone.       He

explained that possible side effects of those medications

included "irritability, rage reactions, hostility, mania,

     5
       After the defendant's arrest, his father counted the
Prozac and Trazodone pills remaining in the defendant's
prescription bottles. He testified that there was one pill
missing from both bottles, which could have indicated that the
defendant had taken his medications as prescribed.
                                                                        9


insomnia, racing thoughts, a disinhibition of . . . behavior,

impulsivity and trouble concentrating."        Meyers opined further

that the defendant suffered from bipolar disorder, and therefore

that he was more vulnerable to the toxic effects of Prozac and

Trazodone.   He noted that Prozac and Trazodone contain warnings

to screen for bipolar disorder because "taking those medications

has a significant risk of swinging you into a manic episode."

He stated that people with bipolar disorder who are treated with

antidepressants generally are also treated with mood stabilizers

to prevent possible manic episodes.

    In rebuttal, the Commonwealth called Dr. Alison Fife, a

forensic psychiatrist.        Fife also had interviewed the defendant

and reviewed the relevant treatment records and police reports.

She disagreed with the conclusion that the defendant was

intoxicated by therapeutic doses of Prozac and Trazodone.        She

also did not agree with Meyers's diagnosis of bipolar disorder.

Fife testified that a mental disease or defect did not "drive"

the defendant to kill the victim.       When asked, in her opinion,

what did "drive" the defendant to do so, she responded that

feelings of anger, sadness, and rage "drove" the defendant's

behavior.

    2.   Discussion.     a.    Limitations on direct examination of

defendant's mental health expert.       The defendant contends that

he was precluded from presenting a complete defense because the
                                                                  10


judge did not permit the introduction of certain testimony by

the defendant's medical expert concerning a conversation that

the expert had had with the defendant during the forensic

interview.   The defendant argues that the exclusion of these

statements violated his rights under the due process clause and

the Sixth Amendment to the United States Constitution.    Because

the defendant objected, we review to determine whether the

exclusion of the evidence was error, and if so, whether it was

prejudicial.   See Commonwealth v. Aviles, 461 Mass. 60, 67

(2011).

    In conducting his evaluation of the defendant's mental

state, Meyers reviewed the defendant's mental health records,

police reports, and other discovery material; interviewed

collateral witnesses; and "met with [the defendant] on two

occasions:   May 2[, 2013,] and July 19[, 2013,] for a total of

about seven and a half hours."   On direct examination, defense

counsel asked Meyers about certain statements the defendant had

made to him during the course of these interviews.   Counsel

inquired, "Were you able to learn anything from [the defendant]

concerning his mental health history. . . that was of

significance to you in forming your opinion?"

    The prosecutor objected to the question because the

defendant's statements had not been admitted in evidence.      As an

offer of proof, defense counsel represented that Meyers would
                                                                   11


testify to statements made by the defendant "about experiencing

manic-like symptoms in the past . . . hyperactivity, increased

mood, . . . needing to sleep for a couple of days at a time,

that sort of thing."     Counsel added that he wanted to raise with

Meyers "some things about [the defendant's] mental health and

employment histories and . . . the events on May 3."6    After a

lengthy sidebar conference, the judge ruled that the statements

made during Meyers's interviews of the defendant were not

admissible on direct examination.    During the remainder of his

direct testimony, Meyers testified that the defendant suffered

from bipolar disorder.    As a basis for this opinion, Meyers

stated that he had relied upon the defendant's "history from

different sources and as well my history from him."

     The thrust of the prosecutor's cross-examination was that

the defendant's prior treatment records did not support a


     6
       After the conclusion of Meyers's testimony, defense
counsel provided the judge with another offer of proof. Counsel
represented that Meyers would have testified to the following:
(1) the defendant's relationship with the victim; (2) the events
of May 3, 2013, including "that morning when he woke up," "his
plans with [his] daughter and communications with his daughter
in the afternoon," and "his activities during the afternoon
leading up to the time he arrived at [the victim's house]," "the
events between 5:30 P.M. and approximately 6:45 P.M. -- that is,
in the kitchen and living room area and the event itself";
(3) the defendant's employment history, including losing two
potential jobs in late April, 2012, after having lost his truck
driving position in March, 2012, that caused "a significant
amount of stress, anxiety, and depression; and (4) the
defendant's mental health history including instances of manic
behavior.
                                                                   12


diagnosis of bipolar disorder.    Pursuing this line of inquiry,

the prosecutor asked Meyers about records admitted in evidence

from the Lahey Clinic and Holy Family Hospital, treatment

records from the Cambridge house of correction and Bridgewater

State Hospital, and a May 7, 2012, competency evaluation

conducted by Dr. Jodie Shapiro.    The prosecutor did not

challenge Meyer's reliance on the defendant's out-of-court

statements as the basis for his expert opinion that the

defendant suffered from bipolar disorder.    On redirect

examination, defense counsel did not ask Meyers any questions

about statements made by the defendant concerning this subject.

    The question the defendant raises concerns the

admissibility of testimony by an expert witness, on direct

examination, concerning facts upon which the expert's opinion is

based, and that are independently admissible, but that have not

been introduced in evidence.   See generally Department of Youth

Servs. v. A Juvenile, 398 Mass. 516, 531 (1986); Mass. G. Evid.

§ 703 (2017).   Prior to our decision in Department of Youth

Servs., we followed the traditional rule that an expert's

opinion had to be "based on either the expert's direct personal

knowledge, on evidence already in the record or which the

parties represent will be presented during the course of the

trial, or on a combination of these sources."    Commonwealth v.

Barbosa, 457 Mass. 773, 784 (2010), cert. denied, 563 U.S. 990
                                                                      13


(2011), quoting LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32

(1979).      In Department of Youth Servs., supra at 531, we

expanded the permissible bases of expert opinion testimony to

include "facts or data not in evidence if the facts or data are

independently admissible and are a permissible basis for an
                                                   7
expert to consider in formulating an opinion."         See

Commonwealth v. Chappell, 473 Mass. 191, 203 (2015), quoting

Department of Youth Servs., supra; Barbosa, supra at 785.

       Although an expert may formulate an opinion based on facts

or data not admitted in evidence, but that would be admissible

with the proper witness or foundation, "the expert may not

testify to the substance or contents of that information on

direct examination."       Commonwealth v. Chappell, 473 Mass. 191,

203 (2015), quoting Department of Youth Servs., 398 Mass. at

531.       The purpose of this limitation on expert witness testimony

is to prevent the proponent of the opinion from "import[ing]

inadmissible hearsay into the trial."       Commonwealth v. Goddard,

476 Mass. 443, 448 (2017).       See Commonwealth v. Greineder, 464

       7
       In Department of Youth Servs. v. A Juvenile, 398 Mass.
516, 531 (1986), we decided to take a "modest step" toward
allowing an expert witness to state his or her basis of opinion,
and declined to adopt then proposed Mass. R. Evid. 703 (the
equivalent of Fed. R. Evid. § 703). Under this broader
evidentiary rule, the proponent of expert opinion testimony is
permitted to disclose otherwise inadmissible facts or data to
the jury "if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect."
Fed. R. Evid. § 703 (2012). See Vassallo v. Baxter Healthcare
Corp., 428 Mass. 1, 16 (1998).
                                                                     14


Mass. 580, 583, cert. denied, 134 S. Ct. 166 (2013)

("Disallowing direct testimony to the hearsay basis of an expert

opinion helps prevent the offering party from slipping out-of-

court statements not properly in evidence in through the 'back

door'"); Commonwealth v. Nardi, 452 Mass. 379, 392 (2008)

(expert witness may not "under the guise of stating the reasons

for his opinion" testify to inadmissible hearsay).

     We have emphasized that "[t]he thrust of [our] rule is to

leave inquiry regarding the basis of expert testimony to cross-

examination" (citation omitted).   Barbosa, supra.    The opposing

party then may, as a matter of trial strategy, elicit details of

the facts or data underlying the expert's opinion.    Commonwealth

v. Markvart, 437 Mass. 331, 338 (2002).   If the door is opened

by the opposing party, on redirect examination, the proponent of

the evidence then may introduce the details surrounding the

source of the expert's opinion.8   Chappell, 473 Mass. 203-204.


     8
       For example, on cross-examination in this case, the
prosecutor challenged Meyers's assumption that the defendant
took his medications as prescribed following his release from
the hospital. Meyers agreed that he did not examine the
defendant's pill bottles or "have any conversation with anyone
else [other than defense counsel] about the number of pills"
missing from those bottles. Thereafter, on redirect
examination, the judge permitted Meyers to testify to certain
information he had obtained from the defendant during the
forensic interview. The judge ruled that the testimony was
admissible on redirect examination "as a basis of [Meyers's]
opinion . . . for the fact that it was said and the doctor
relied on it." Meyers then testified that he learned that the
defendant felt nauseated and vomited soon after awaking midday
                                                                    15


See Mass. G. Evid. § 705 (2017).     See generally Commonwealth v.

Garcia, 470 Mass, 24, 36 (2014) (purpose of redirect examination

is to "explain or rebut adverse testimony or inferences

developed during cross-examination" [citation omitted]).

     The judge's decision to require compliance with this rule

of evidence did not violate the defendant's constitutional right

to present a full defense.     The rule limiting direct examination

testimony of an expert witness "is a common-law evidentiary rule

that operates in both civil and criminal cases and applies to

both sides."9     Chappell, 473 Mass. at 204.   "A defendant's right

to present a full defense . . . is not without limits . . . and

as a general rule, does not entitle him to place before the jury

evidence normally inadmissible" (quotations and citations

omitted).   Id.    Here, Meyers testified that he interviewed the

defendant, and that he diagnosed the defendant with bipolar

disorder based in part upon learning the defendant's history.



on May 3, 2012, and that this was evidence that the defendant
had been compliant with taking his medication as prescribed.
     9
       See Commonwealth v. Johnston, 467 Mass. 674, 696 (2014)
(error for Commonwealth's expert psychiatrist to summarize on
direct examination statements provided by witnesses that
defendant did not exhibit signs of mental illness during weeks
and hours before killing); Commonwealth v. Nardi, 452 Mass. 379,
392 (2008) (substitute medical examiner unable to testify to
hearsay statements recorded in autopsy report); Commonwealth v.
Jaime, 433 Mass. 575, 577-578 (2001) (Commonwealth's expert
should have been precluded from testifying on direct examination
that witnesses reported that defendant was his normal jovial
self day before murder).
                                                                   16


The underlying facts, which were not otherwise introduced in

evidence, were not admissible on direct examination.     See

Barbosa, 457 Mass. at 784; Mass. G. Evid. § 703.

    The defendant argues that the rule established in

Department of Youth Servs. has been called into question by our

subsequent decisions in Commonwealth v. Brown, 449 Mass. 747,

768 (2007), and Commonwealth v. Rutkowski, 459 Mass. 794, 799-

800 (2011).   These cases, however, do not support the

proposition that facts not otherwise in evidence are admissible

on direct examination of an expert witness.    In both cases, we

held that where a defendant's statements properly have been

admitted in evidence, an instruction that the statements may be

considered only as the basis of the expert's opinion is

warranted.    See Rutkowski, supra; Brown, supra.

    Furthermore, we note that the judge's evidentiary ruling

did not deprive the defendant of the ability to pursue an

insanity defense.   The defendant was able to introduce testimony

from his and the Commonwealth's medical experts, his medical

records from four different facilities, and evidence from his

competency examination, as well as statements by his father and

his classmates as to his appearance and activities in the first

twenty-four hours after he was released from the hospital.     See

Chappell, 473 Mass. at 204-205 (noting that defendant was able

to elicit excluded information by introducing medical records).
                                                                    17


The defendant argues that the statements excluded from evidence

would have described his conduct on May 3, 2012, and would have

demonstrated that he had experienced psychiatric symptoms

suggesting that he was suffering from a manic episode as a

result of his bipolar disorder.    The transcript indicates that,

on direct examination, referring to his review of "records" and

"collateral material," Myers was able to provide a detailed

description of the events of May 3, 2012.

    In describing the events on the day of the victim's death,

Meyers testified that, on that day, the defendant made plans to

take Alexa out for ice cream.     He arrived to pick up Alexa at

around 5 P.M. and went into the house.     At first, the defendant,

Alexa, and the victim "were conversing" and "things were fine."

The victim ordered takeout food for Alexa, and the defendant and

the victim got into an argument.    The victim attempted to stab

the defendant; he grabbed the knife from her.    "At some point

she picked up a knife again.    They went at it. This time . . .

is in front of his daughter."

    In addition, Myers testified as to the defendant's mental

health history.   This history included details involving the

defendant's admission to Holy Family Hospital on April 29, 2012,

and his subsequent treatment and prescriptions.     In Meyers's

opinion, the defendant had exhibited symptoms of bipolar

disorder prior to the May 3, 2012, incident.     Meyers testified
                                                                  18


that the defendant had been struggling with depression, anxiety,

and irritability for years, "which could be a sign of bipolar";

that the clinicians at the jail documented "the [defendant's]

history of prior manic episodes"; Alexa witnessed the

defendant's wide fluctuation in moods on May 3, 2012, ranging

from "nice and sweet one moment, then screaming, then psycho and

then nice again."   Meyers also described the defendant's May 7,

2012, competency evaluation, at which Shapiro had noted that

"approximately a week before [the evaluation, the defendant] had

symptoms of what appeared to be mania.    He had described

increased hypersexual feelings . . . sleep problems, increased

energy and that had just been a week before so it sounded like

the beginnings of a manic episode."

    b.   Admission of Commonwealth's expert witness opinion

testimony on defendant's motivation.     The defendant argues that

Fife, the Commonwealth's expert witness, improperly testified

about what "drove" the defendant to kill the victim.    He

contends that this testimony was impermissible, first, because

Fife did not express her opinion in accordance with the standard

set forth in Commonwealth v. McHoul, 352 Mass. 544, 546 (1967);

and second, because Fife's testimony infringed on the jury's

right to determine the ultimate question of the defendant's

criminal responsibility.   As there was no objection to Fife's

testimony, our review is limited to consideration whether there
                                                                  19


was error, and if so, whether it created a substantial

likelihood of a miscarriage of justice.   Commonwealth v. Wright,

411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014).

    During Fife's testimony, the following exchange took place:

    Q.: "Based on your evaluation of the defendant and your
         review of the associated materials in this case, do
         you have an opinion to a reasonable degree of medical
         certainty as to whether mental illness drove this
         defendant to kill [the victim] on May 3, 2102?"

    A.:   "Yes, I have an opinion."

    Q.: "And what's that opinion?"

    A.:   "My opinion is that mental disease did not drive this
          behavior on that day."

    Q.: "And, again, based on your evaluation of the defendant
         and your review of the case materials, do you have an
         opinion to a reasonable degree of medical certainty as
         to whether a mental defect drove this defendant to
         kill [the victim] on May 3rd of 2012?"

    A.:   "Yes, I have an opinion."

    Q.: "And what's your opinion on that?"

    A.:   "My opinion is that there is no mental defect present
          at that time that drove his behavior."

    Q.:   "What in your opinion did drive him to kill her on
          that day?"

    A.:   "In my opinion, this individual, the defendant was
          angry, he was upset, he had feelings of depression,
          sadness mixed with danger [sic], mixed with rage and I
          think that those were the primary feelings that drove
          the behavior on that day."

    We conclude that there was no error in Fife's testimony

about what drove the defendant's behavior.   A qualified expert
                                                                  20


witness need not phrase his or her opinion in terms of the

McHoul test.   See Commonwealth v. Amaral, 389 Mass. 184, 193

(1983), citing Commonwealth v. Shelley, 381 Mass. 340, 348 n.4

(1980), S.C., 411 Mass. 692 (1992); Commonwealth v.

Gerhartsreiter, 82 Mass. 500, 509 (2012).   To the contrary,

"Testimony in purely medical or psychological terms may in many

instances be preferable; the expert may be best equipped to use

medical and psychological concepts, and the testimony may not

fit neatly in legal categories."   Shelley, supra.10




    10
       Defense counsel also questioned Fife on what drove the
defendant's behavior, albeit in a hypothetical form.

         "Assume that an individual is in the midst of a
    breakup with his girl friend who has never exhibited any
    signs of physical violence towards that girl friend suffers
    from an apparent depressed mood, exhibits suicidal thoughts
    and behaviors, is hospitalized for three days due to that
    depressed mood and suicidal behaviors and thoughts, is
    prescribed Prozac and Trazodone, takes those medications
    for three or four days, exhibits symptoms of nausea and
    vomiting, then goes to his girl friend's home with his
    daughter present with a Chinese food delivery person on the
    way and then stabs her.

         "My question is you as a psychiatrist would it be
    reasonable to suggest that you would have to explore the
    possibility that that conduct was driven by a mental
    disease or defect?

         ". . .

         "Would it be reasonable, Doctor, and would you have to
    explore the possibility that the Prozac and Trazodone drove
    that conduct . . . ?"
                                                                    21


       The defendant argues also that, in another portion of her

testimony, Fife misstated the McHoul standard.    Fife stated that

she relied on that standard, which she described as follows:

            "[The McHoul standard] states that at the time of the
       crime -- at the time of the crime -- at the time of the
       alleged crime, an individual has to first meet the criteria
       for mental illness, and then it splits from there so that
       if a person meets that criteria [do] they as a result of
       the mental illness either lack the substantial capacity to
       appreciate the wrongfulness, it's sometimes called the
       criminality, but the wrongfulness of their behavior at the
       time of the alleged crime as a result of the mental
       illness, or were they substantially less capable of
       conforming their behavior to the requirements of the law,
       again coming back to because of an active mental illness at
       the time of the crime."

In an attempt to clarify her testimony, Fife strayed from the

McHoul formulation and stated:

            "I think of that as the first part of it that whether
       or not there is a mental illness and then the prongs as if
       there's a mental illness because of that illness.
       Sometimes I think of it as but for the illness would the
       crime have happened. You know, so . . ."

       We have cautioned that if an expert witness were to

reference a legal standard, "[C]ounsel properly would be

required to ask the expert to cast his opinion in terms of the

legal standard set out in McHoul."    Shelley, 381 Mass. at 348

n.4.    Fife did not do that; indeed, her statement was both

incorrect and likely to have confused the jury.    Fife's effort

to clarify her understanding of the McHoul standard did not,

however, create a substantial likelihood of a miscarriage of

justice.    The judge interrupted her midsentence to inform the
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jurors that she would be the one to instruct the jurors "on the

law that they will apply with respect to the standard" before

they began deliberating.    In her final charge, the judge

correctly instructed the jury as follows:

         "Criminal responsibility is a legal term. A person is
    not criminally responsible for his conduct if he has a
    mental disease or defect, and as a result of that mental
    disease or defect lacks substantial capacity either to
    appreciate the criminality or wrongfulness of his conduct
    or to conform his conduct to the requirements of law."

See Gerhartsreiter, 82 Mass. App. Ct. 509-510 (no error where

expert witness misstated McHoul standard but judge provided

proper legal standard).

    Moreover, Fife's testimony concerning what drove the

defendant's behavior did not usurp the jury's role as the sole

and exclusive finders of the facts.    An expert witness may not

offer an opinion as to a defendant's guilt or innocence.

Goddard, 476 Mass. at 446.   Commonwealth v. Lodge, 431 Mass.

461, 467 (2000).   An expert witness is not precluded, however,

from providing an opinion that reaches or approaches the

ultimate issue in a case.    See Commonwealth v. Okoro, 471 Mass.

51, 66 (2015), quoting Commonwealth v. Federico, 425 Mass. 844,

847 (1997); Mass. G. Evid. § 704 (2017).

    In this case, Fife did not offer an opinion that the

defendant was criminally responsible for the victim's death.

She was permitted to testify that anger, sadness, and rage, not
                                                                    23


mental illness, motivated his actions.     See Commonwealth v.

Johnston, 467 Mass. 674, 699-700 (2014) (no error in expert

testimony implying that defendant's resentment for victim, not

mental illness, motivated killing); Commonwealth v. LaFave, 407

Mass. 927, 934 (1990) (expert allowed to testify on issue of

motive).    See also Commonwealth v. Goddard, 476 Mass. at 446-447

(expert testimony that defendant's behavior was "planned" and

"goal-directed" was admissible as relevant to issue of criminal

responsibility).

    c.     Mutina instruction.11   In her final charge, the judge

instructed the jury on the consequences of a verdict of not

guilty by reason of lack of criminal responsibility, as set

forth in Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12

(1975).    The judge instructed as to "what happens to a defendant

if he is found not guilty by reason of lack of criminal

responsibility."    At trial, the defendant did not object to this

formulation of the instruction.     In this appeal, however, the

defendant argues that the instruction created a substantial

likelihood of a miscarriage of justice because the judge failed

adequately to inform the jury of the real possibility that the

defendant could be committed for life.


    11
       We have considered the additional arguments in the
defendant's reply brief filed pursuant to Commonwealth v.
Moffett, 383 Mass. 201, 207-208 (1981), and conclude that they
are unavailing.
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    In Chappell, 473 Mass. at 205-206, we modified the model

Mutina instruction set forth in our Model Jury Instructions on

Homicide, effective at the time of the defendant's trial.     The

provisional instruction set forth in Chappell, supra at 209

(Appendix), informs the jury that "[t]here is no limit to the

number of such renewed orders of commitments as long as the

defendant continues to be mentally ill and dangerous; if these

conditions do continue, the defendant may remain committed for

the duration of his [or her] life."    Nonetheless, we concluded

also that the Mutina instruction as set forth in the 2013 Model

Jury Instructions on Homicide accurately stated the law, and

that the judge did not err in giving the then-existing Mutina

instruction.   Id. at 205-206.

    In cases decided after Chappell, we have said that it is

not error for a judge "like the judge in Chappell . . . [to

give] the Mutina instruction that, at the time of trial, was the

governing model jury instruction."    Commonwealth v. Dunn, 478

Mass. 125, 139 (2017).   See Commonwealth v. Griffin, 475 Mass.

848, 862 (2016).   The Mutina instruction the judge gave in this

case, three years before we decided Chappell, was proper and did

not create a substantial likelihood of a miscarriage of justice.

    d.   Review pursuant to 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
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trial or to reduce the conviction of murder in the first degree

to a lesser degree of guilt.

                                   Judgments affirmed.
