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SJC-11176

                 COMMONWEALTH   vs.   CHRISTIAN MULLER.



         Worcester.       December 9, 2016. - July 11, 2017.

         Present:    Gants, C.J., Lenk, Hines, & Gaziano, JJ.


Homicide. Armed Assault with Intent to Murder. Armed Home
     Invasion. Firearms. Mental Impairment. Insanity.
     Intoxication. Evidence, Insanity, Intoxication. Practice,
     Criminal, Capital case, Instructions to jury, Argument by
     prosecutor.



     Indictments found and returned in the Superior Court
Department on August 23, 2007.

     The cases were tried before Richard T. Tucker, J.


     Deirdre L. Thurber for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


     HINES, J.      During an armed home invasion of an apartment in

Dudley, the defendant, Christian Muller, and an accomplice1 shot

and killed two of the occupants and critically wounded a third.


     1
       According to the Commonwealth, the accomplice ultimately
pleaded guilty to several charges.
                                                                      2


After a jury trial, the defendant was convicted of two counts of

murder in the first degree, on the theories of deliberate

premeditation and felony-murder,2 armed assault with intent to

murder, armed home invasion and unlawful possession of a

firearm.

     At trial, the defendant admitted that he had shot the

victims; his primary defense was that he lacked criminal

responsibility because of mental illness and cocaine addiction.

On appeal, the defendant argues that (1) the jury instruction on

criminal responsibility and voluntary intoxication was erroneous

because it failed to comply with Commonwealth v. Berry, 457

Mass. 602 (2010), S.C., 466 Mass. 763 (2014), and Commonwealth

v. DiPadova, 460 Mass. 424 (2011); (2) certain of the other jury

instructions were fatally flawed; and (3) the prosecutor's

closing argument was improper.     We affirm the convictions and

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

     Background.    1.   The trial.   We summarize the facts as the

jury could have found them, reserving additional details for

later discussion.

     a.    The Commonwealth's case.   On the evening of July 8,

2007, Joanne Mercier was in her bedroom in the third-floor

apartment that she shared with her brother, Aaron Bash, in


     2
       The predicate felony for Muller's convictions of felony-
murder in the first degree was armed home invasion.
                                                                    3


Dudley.   Bash was asleep in his bedroom and their friend, Denise

Johnston, was sleeping on a sofa in the living room.     Shortly

after midnight on July 9, the defendant and Marc Letang kicked

down the back door and entered the apartment with their guns

drawn.3   The men walked through the kitchen and entered Mercier's

bedroom, asking where Bash was.   After Mercier told them that

Bash was asleep in his bedroom, the men left Mercier's room and

awoke Bash.   As Mercier followed the men into Bash's bedroom,

she heard the defendant asking Bash whether he was sleeping with

the defendant's wife.   Bash denied the accusation.

     Letang went into the living room and brought Johnston into

Bash's bedroom at the defendant's request.   The defendant was at

the foot of the bed facing the victims, who were all sitting on

the bed, while Letang stood in the corner of the room.    The

defendant continued to accuse Bash of sleeping with his wife and

Bash repeatedly denied it, stating that he would not do that to

his friend.   Finally, the defendant told Bash that if he just

admitted it and told the defendant what he wanted to hear, this

would all be over.   When Bash refused to admit to the

defendant's accusations, the defendant said, "Fuck this," and


     3
       Earlier in the evening of July 8, 2007, the defendant
attempted to gain entry into Aaron Bash and Joanne Mercier's
apartment, looking for Bash. The defendant was banging on the
door and calling Bash's name; Bash told Mercier not to answer
the door, and eventually the defendant left without further
incident.
                                                                    4


shot Johnston in the head.   As Bash asked the defendant, "What

the eff are you doing?" the defendant shot Mercier in the head.

When Mercier regained consciousness a few minutes later, she

realized that the defendant and Letang were gone, and discovered

that Johnston was still breathing despite the gunshot to her

head.

     Mercier had not yet comprehended that she had been shot,

but knew she needed to call an ambulance for Johnston.   She

retrieved her cellular telephone and then called to Bash.    When

Bash failed to answer her, she looked him and saw that he had

been fatally shot in the head.   Mercier was so distraught that

she had to telephone 911 twice because, at first, she could not

remember where she was.

     Shortly after midnight on July 9, 2007, a patron was

leaving a nearby bar when he heard five to seven loud noises he

assumed were fireworks.   Approximately one minute later, he

observed two men, whom he was able to describe, running around

the corner; one of the men was carrying a firearm.   The witness

heard someone say, "Go.   Let's go," as the men got into a

vehicle and drove away.

     When officers entered the apartment, they observed Mercier

conscious and bleeding from her head.   She was in shock, crying

and "yelling things," but was able to communicate that

"Christian" shot her.
                                                                     5


     Officers then discovered Bash and Johnston.    Bash was found

on the bed; he was dead from two gunshot wounds to his head.

Johnston was found near the end of the bed, but she appeared to

be alive.   She later died at a hospital of a gunshot wound to

her head.

     Right before the shootings, the defendant and Letang had

been at the home of a friend of the defendant, who lived in

Webster; a woman and a man were also there.   Both the woman and

the defendant had been smoking "crack" cocaine.    The woman

testified that the more "crack" the defendant smoked, the more

"crazy" he became.   The defendant was agitated; he was pacing

back and forth, waving his gun around, saying that he was going

to put bullets in their heads.   He also said that Bash owed him

money for drugs and that Mercier was "just a stupid bitch."4

Prior to leaving the house, the defendant said he was going to

"take care of some business" and left with his firearm.

     The defendant and Letang returned to the friend's home.

They came running up the stairs, saying that they had just

murdered some people.   The defendant and Letang told the woman

that if she said anything about their involvement in the murders

that they would "put a cap in her head."   There was discussion

     4
       Until one week prior to the shootings, the defendant and
Mercier had been in a short romantic relationship outside the
defendant's marriage. Mercier ended the relationship because
the defendant became angry with her; when she left in a vehicle
without him, he fired a gun at the vehicle.
                                                                    6


about killing the woman because she knew and had seen too much.

The defendant eventually went outside the house and demanded

that the woman join him.    He was pacing in the road with his

firearm, telling the woman both that he did not mean to do it

and that he did not commit the murders.    Ultimately, however,

the defendant told her that he "shot the motherfucker,"

referring to Bash, and that he put the three victims on the bed

and shot them execution style.     He put the gun to the woman's

head several times, threatening to shoot her in the head if she

said anything about his involvement in the murders.

       The woman and the defendant walked down the street where

the defendant stopped to hide his gun, which the defense

stipulated was used to shoot the victims, in the cellar of a

home.    He warned the woman not to tell anyone where he hid the

gun.    Next, they walked to the defendant's parents' home, where

he changed out of his bloody clothing.    Finally, they walked

through town and ended up back at the friend's home where they

slept until later that morning.

       When they woke up, the police had the house surrounded.

The defendant got up, saying, "I didn't do it," as he left the

house and ran into some woods behind the home, where he was

arrested.

       The defendant was interviewed by two State police troopers

at the Dudley police department.    Although the defendant
                                                                     7


initially declined to speak with the officers, after he spoke to

his wife and mother, he agreed to the interview.     The defendant

admitted that he was in Webster the night before and "smoked a

bunch of crack," but initially denied seeing Bash.

    However, after the defendant figured out that Mercier had

survived and was told that the police had found his gun, he

admitted to committing the shootings and stated that he knew he

was going to jail.    The defendant stated that he had been doing

a lot of drugs that night, and after "the gun went off" and he

shot Johnston, he thought, "If I leave them alive, I'm going to

jail for my life, so I [shot Bash and Mercier]."

    He also told the officers, "When I'm on drugs, I see . . .

lots of things.   I get real crazy.    I hallucinate . . . I have

psych attacks.    I get rages.   I am a different total person."

The defendant told the officers that he was off his medications

and that he was bipolar and schizophrenic, had anxiety, and

suffered from panic attacks and paranoia.    He also noted that

when he is off his medication, he gets even more paranoid and

goes "cuckoo."

    b.   The defendant's case.    The defendant offered five

witnesses in support of his lack of criminal responsibility

defense, including three expert witnesses.

    i.   Dr. Giulia Mezzacappa.    Mezzacappa, a clinical

psychiatrist, evaluated the defendant at an organization
                                                                   8


providing mental health services, in February and June, 2006,

one year before the murders.5   As part of her psychiatric

evaluation of the defendant, Mezzacappa also interviewed the

defendant's family, including his wife, sister, stepfather, and

mother.   Based on Mezzacappa's evaluation of the defendant and

interviews with his family, Mezzacappa diagnosed the defendant

with schizoaffective disorder.6   At the time of Mezzacappa's

February, 2006, evaluation, the defendant had stopped taking his

prescribed antipsychotic and anxiety medications.   As a result

of her evaluation, Mezzacappa prescribed an antipsychotic mood

stabilizer.   During his evaluations, the defendant and his

family freely reported the defendant's use of heroin, marijuana,

and "crack" cocaine.

     Mezzacappa opined that "substance abuse can definitely

worsen any mental illness, especially a psychotic disorder or

mood disorder," and agreed that drug usage can also trigger


     5
       Dr. Giulia Mezzacappa estimated that she saw the defendant
no more than three times in 2006, for a total of approximately
two to two and one-half hours.
     6
       Mezzacappa defined schizoaffective disorder as "a chronic
mental illness that's characterized by recurrent episodes of
affective symptoms, either depression or mania or a mixed state,
and chronic psychotic symptoms, like hallucination, delusional
ideation, or thought disorder." She further defined psychotic
symptoms as "hallucination, abnormal perception, sensory
perception, that don't correspond to reality, such as hearing
voices or seeing things that are not there, or physical
sensation that is not related to anything realistic. There is
an ideation or fixed beliefs that don't correspond to reality."
                                                                   9


psychotic effects in an individual suffering from a mental

disease or defect.   She noted that she had no reason to believe

that the defendant was exaggerating his symptoms or malingering,

especially where his family also supported his history.

Nonetheless, she did believe that the defendant was aware of the

effect drugs like cocaine and heroin had on him, although she

could not opine as to the degree of his knowledge.    Finally,

Mezzacappa had no opinion as to whether the defendant was

criminally responsible for his actions at the time of the

murders.

    ii.    Dr. Hanya Bluestone.   Bluestone, a forensic

psychologist employed by the courts, evaluated the defendant's

competence to stand trial and criminal responsibility, pursuant

to G. L. c. 123, § 15 (a), on July 10, 2007.    In order to

evaluate the defendant's competence and criminal responsibility,

Bluestone spoke with the defendant and reviewed his court clinic

file, which contained a prior competency evaluation conducted by

a colleague of Bluestone's, an evaluation regarding the

defendant's need for involuntary commitment for substance abuse

treatment in 2006, and the police report for killings.    She also

spoke with Mezzacappa regarding the defendant's psychiatric

treatment in 2006.

    During Bluestone's evaluation, the defendant had some

difficulty recalling dates and placing events in time, and he
                                                                   10


expressed some paranoia and persecutory ideation.    Bluestone was

concerned about psychotic symptoms the defendant reported,

especially command auditory hallucinations, which he said

commanded him to commit violent acts.    She also noted that the

defendant's psychotic symptoms were consistent with his prior

evaluations.   She could not, however, determine the etiology of

the defendant's psychotic symptoms -- whether those symptoms

were primarily related to a mental illness or to the defendant's

ongoing and varied substance abuse -- because his symptoms were

consistent with mental illness and substance abuse and

withdrawal from substance abuse.    Bluestone concluded that based

on the defendant's symptoms during her evaluation alone, he

should be further evaluated in Bridgewater State Hospital

(Bridgewater).7   She did not offer an opinion regarding the

defendant's criminal responsibility.

     iii.   Dr. Paul A. Spiers.   Spiers, a neuropsychologist,8

evaluated the defendant for his competence to stand trial and


     7
       Dr. Hanya Bluestone interviewed the defendant for
approximately forty minutes, and she spent an additional eight
hours preparing his competency evaluation. In addition to her
interview with the defendant, Bluestone also spoke with the
defendant's wife, who reported that when the defendant was using
illicit drugs, his mental illness would get out of control and
he would emotionally and physically abuse her. His wife opined
that the defendant used illicit drugs to manage the symptoms of
his mental illness.
     8
       Dr. Paul A. Spiers defined "neuropsychology" as "an
investigation of the relationship between the brain and
                                                                  11


criminal responsibility in April, 2009.9   In preparation for his

evaluation of the defendant, Spiers reviewed the defendant's

records from the Department of Youth Services and the Department

of Social Services, school records, prior psychiatric treatment

notes, and records from the defendant's prior incarcerations.

He also reviewed expert reports regarding the defendant's

competence and criminal responsibility created for the trial,

including reports from Bridgewater and a corresponding

evaluation from a clinical psychologist on staff at Bridgewater,

and the videotape of the defendant's interview with the State

police.   He also administered neuropsychological tests to

determine whether the defendant's neuropsychological functioning

was appropriate.

     Spiers determined that the defendant was deficient in many

critical areas, such as reading ability and vocabulary, which

invalidated some of the testing results, because of the danger

of false positive results.   Specifically, Spiers noted that

tests, such as the Minnesota Multiphasic Personality Inventory

(MMPI), were inappropriate for the defendant, because it

required the test-taker to possess a seventh or eighth grade


behavior. . . . [the brain is] responsible for all our
interactions with the world around us. It's responsible for all
of our behavior, and it's responsible for how we understand and
control our behavior."
     9
       Spiers met with the defendant once, for two or three hours
in April, 2009, to conduct his evaluation.
                                                                   12


reading level, which the defendant did not have.   Spiers further

noted that the MMPI is made up of 560 true or false questions,

which help evaluators not only to diagnose psychological

disorders but also to gauge effort and malingering, based on how

the test-taker answered the questions.   The defendant had been

evaluated previously using the MMPI and other tests, the results

of which led another psychologist to conclude that the defendant

was a malingerer and that he exaggerated his symptoms at

Bridgewater in 2007.   Spiers noted, however, that although he

agreed with the methodology of the defendant's previous testing,

he took issue with the conclusions regarding that testing

because of the defendant's intellectual limitations.

     Spiers concluded that the defendant showed evidence of

defective functioning in the left frontal lobe of his brain,10

such that he would experience difficulty with reasoning and

controlling his behavior.   In Spiers's opinion, the defendant

continues to have the neurodevelopmental deficits he had as a

child and young adult, including oppositional defiant disorder

and attention deficit disorder.   As a result of the defendant's

neurodevelopmental deficits, mental illness, and his drug

intoxication, Spiers opined that at the time of the shootings,


     10
       Spiers concluded that the defendant had defective
functioning in the frontal lobe of his brain, but Spiers did not
have the benefit of functional magnetic resonance imaging of the
defendant's brain in aid of his diagnosis.
                                                                   13


the defendant was unable to conform his behavior to the

requirements of the law, and thus was not criminally

responsible.11   Spiers further opined that it was highly probable

that because of the defendant's mental illness, the defendant

could not form the specific intent to commit murder under

theories of premeditation or extreme atrocity or cruelty, or to

commit an assault with intent to murder.

     iv.   The defendant's family.   The defendant's wife and his

cousin testified regarding their experiences with the

defendant's mental illness and drug addiction.   The defendant's

wife testified that in 2007, the defendant was receiving Social

Security disability benefits for his mental disabilities.   She

described the defendant as very mean, angry, and abusive when he

was using drugs12 and stated that he did not take his

prescription medications when he consumed illegal drugs.    His

wife said that the defendant was taking heroin, "crack" cocaine,

and pills, such as OxyContin, Percocet, and Vicodin.    Two weeks

prior to the shootings, his wife barred the defendant from the

family home because he was consuming a large amount of illegal

     11
       Spiers opined that at the time of the shootings, the
defendant had substantial capacity to appreciate the
wrongfulness of his conduct.
     12
       The defendant's wife testified, however, that when the
defendant was on his medication and not taking illegal drugs he
was a good father and would participate fully in taking care of
their children and the household, and maintained a close
relationship with their extended families.
                                                                    14


drugs and was accusing her of cheating on him.13    The defendant

attempted to come back home five or six times during the two-

week period, but she refused unless the defendant sought help

for his drug addiction.     The defendant's wife also stated that

on four or five occasions throughout their marriage, she

observed the defendant talking to himself and when she asked who

he was talking to, he answered, "his friends," although no one

else was present; this occurred whether or not he was on

medication.

     The defendant's cousin testified that the defendant began

exhibiting symptoms of mental illness after his father died when

the defendant was twelve or thirteen years of age.     He became

untrusting and had behavior issues.    The defendant began to use

illegal drugs during this time period as well.     Approximately

one or two days before the shootings, the defendant visited his

cousin, who testified that the defendant was "binging" drugs and

that the defendant told him that he had not slept or eaten in

days.     His cousin fed the defendant and noted that he was having

a conversation with himself.     His cousin had observed similar

behavior from the defendant on countless occasions since their

teenage years.

     13
       In 2006, the defendant was admitted to a substance abuse
treatment center after his wife filed a petition to have him
involuntarily committed pursuant to G. L. c. 123, § 35. He had
been previously treated for substance abuse at other in-patient
facilities without sustained success.
                                                                    15


     In his cousin's opinion, there was a drastic difference in

the defendant's personality when he was taking his antipsychotic

medications and off illegal drugs.    The defendant appeared to be

unstable while using drugs.     The defendant's cousin also stated

that the defendant did not seem to remember what he did when he

was abusing drugs, and his cousin would have to recount the

defendant's activities to him.    Finally, his cousin stated that

while on drugs, the defendant held objectively untrue beliefs

about those close to him, especially his wife.

     c.     The Commonwealth's rebuttal expert.   Dr. Karin Towers,

a forensic psychologist and attorney, first evaluated the

defendant in July and August, 2007, for competency to stand

trial and criminal responsibility, during his forty-day

hospitalization at Bridgewater, and again during the summer of

2010 for the purposes of a criminal responsibility evaluation.

During his hospitalization at Bridgewater in 2007, Towers and

other staff members administered psychological tests to the

defendant.    Towers deemed the defendant's MMPI and Structured

Interview of Reported Symptoms test results invalid because his

answers demonstrated that he was malingering and exaggerating

symptoms.    Observations from Towers and other staff members

confirmed the test results.14


     14
       During the defendant's forty-day hospitalization at
Bridgewater State Hospital, he admitted to making an insincere
                                                                  16


    Towers concluded that the defendant's answers demonstrated

an unsophisticated attempt to appear to have more symptoms than

he was genuinely experiencing.   She was unable to make a

definitive mental illness diagnosis because of the defendant's

exaggerated or feigned symptoms and his lengthy history of

illegal drug abuse.   She stated that, in these circumstances, it

can be more difficult to assess whether a patient actually has a

mental illness, whether the symptoms are caused by illegal drug

use, or whether there is an underlying mental illness that has

been triggered or exacerbated by the drug use.

    After viewing the videotape of the defendant's police

interview, Towers concluded that the defendant exhibited

volitional behavior, meaning that the defendant was aware of his

surroundings and circumstances, was able to advocate for

himself, and could assert his wishes.   Towers opined that the

defendant clearly met the criteria for antisocial personality

disorder and that he very likely had some sort of psychotic

disorder, or substance abuse-induced psychotic disorder.     Towers

further opined that the defendant was criminally responsible for

his acts on July 8-9, 2007, despite the fact that he was likely

experiencing psychological symptoms, because his symptoms did



suicidal gesture because he was unhappy with the medications
prescribed by his treating psychiatrist. Additionally, Towers
and other staff members interpreted his behavior, in which he
grossly exaggerated his symptoms, as drug-seeking behavior.
                                                                  17


not interfere with his ability to either appreciate the

wrongfulness of his conduct or to conform his behavior to the

requirements of the law.15

     2.   Discussion.   On appeal, the defendant (1) challenges

the jury instructions on criminal responsibility as inconsistent

with the law governing the interplay between mental illness and

the voluntary consumption of drugs or alcohol; (2) argues that

certain of the other jury instructions were flawed; (3) contends

that the Commonwealth's closing argument was improper; and (4)

requests that we exercise our power pursuant to G. L. c. 278,

§ 33E, to reverse his convictions and either order a new trial

or enter judgments of not guilty by reason of lack of criminal

responsibility.   We address each argument in turn.

     a.   Criminal responsibility and voluntary intoxication

instructions.   The defendant argues that the judge’s

instructions on criminal responsibility were erroneous in

failing to comport with Berry and DiPadova.16   Although the


     15
       Towers noted a number of factors that were significant in
rendering her opinion regarding the defendant's ability to
conform his conduct to the requirements of the law. He decided
to shoot Bash and Mercier, after he initially shot Johnston, to
avoid leaving witnesses; he was able to control his behavior,
such as when he left the scene of the crime; and he acted to
avoid apprehension in threatening the woman who was at his
friend's house, hiding the gun, and changing his clothing.
     16
       The defendant is entitled to the benefit of Commonwealth
v. Berry, 457 Mass. 602 (2010), S.C., 466 Mass. 763 (2014); and
Commonwealth v. DiPadova, 460 Mass. 424 (2011), because his
                                                                   18


defendant's challenge to this aspect of the jury instructions

lacks precision, it appears to be based on a claim that the

judge erroneously charged the jury to consider whether the

defense of lack of criminal responsibility was vitiated by the

defendant's knowledge that his voluntary consumption of drugs or

alcohol would activate a "latent" mental disease or defect.      We

discern no error in the instructions on that ground.    We

conclude, however, that the judge's instructions were erroneous

in failing to clarify, as required in Berry, that the voluntary

consumption of drugs or alcohol does not preclude the defense of

lack of criminal responsibility where the mental disease or

defect, standing alone, causes the defendant to lose the

substantial capacity to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of the

law.    Berry, 457 Mass. at 618.   Notwithstanding the error,

reversal is not required.

       We briefly summarize the governing principles of law as

background for our analysis of the defendant's claims of error.

In Commonwealth v. McHoul, 352 Mass. 544 (1967), we established

the basic principle of law for determining criminal

responsibility.    We held that a defendant is not criminally



trial commenced approximately seven months after Berry was
released, and his direct appeal was pending when DiPadova was
released. See Commonwealth v. Johnston, 467 Mass. 674, 704
(2014).
                                                                    19


responsible for his actions if, as a result of a mental disease

or defect, he lacked the substantial capacity to appreciate the

wrongfulness of his conduct or conform his behavior to the

requirements of the law.     Id. at 546-547.   Since McHoul, our

cases have evolved, addressing the impact of a defendant's

voluntary consumption of drugs or alcohol on criminal

responsibility.   In Commonwealth v. McGrath, 358 Mass. 314, 319-

320 (1970), we emphasized that a mental disease or defect is the

sine qua non of a lack of criminal responsibility defense,

holding that the defense is not available where the defendant's

loss of the substantial capacity to appreciate the wrongfulness

of his conduct or conform his behavior to the requirements of

the law is caused by the voluntary consumption of drugs or

alcohol as opposed to a mental disease or defect.     Later cases

affirmed the necessity of a causal relationship between a mental

disease or defect and lack of criminal responsibility.      See,

e.g., Commonwealth v. Sheehan, 376 Mass. 765, 767 (1978).

    In Berry, we revisited the relationship between the

defendant's voluntary consumption of drugs or alcohol and lack

of criminal responsibility.    We set forth jury instructions that

included a provision that allowed for a defense of lack of

criminal responsibility even where the defendant voluntarily

consumed drugs or alcohol:    "Where a defendant has an active

mental disease or defect that caused [him] to lose the
                                                                   20


substantial capacity to appreciate the wrongfulness of [his]

conduct or the substantial capacity to conform [his] 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."   Berry, 457 Mass. at 618.   In

DiPadova, 460 Mass. at 432, we considered again the interplay

between a mental disease or defect that, unlike in Berry, did

not independently cause the defendant to lack criminal

responsibility, and the voluntary consumption of drugs and

alcohol.   We clarified that in these circumstances, the defense

is available but only if the defendant lacked knowledge that the

voluntary consumption of drugs or alcohol would trigger a

"latent"17 mental disease or defect that would cause him to lack

criminal responsibility.    Id.

     Here, the judge gave the following instruction regarding

the impact of the voluntary consumption of drugs or alcohol on

the defendant's entitlement to a lack of criminal responsibility

defense:

          "The issue has been raised that the defendant may not
     have been criminally responsible for his alleged actions
     due to his use of drugs or alcohol. Voluntary intoxication
     with drugs or alcohol is not by itself a mental disease or

     17
       Here, in making the reference to a "latent" mental
disease or defect, the judge did not have the benefit of our
caution in DiPadova, 460 Mass. at 432 n.10, that "the use of
such terms ['latent' and 'activation'], particularly in jury
instructions, may be confusing." In any event, the use of the
terms did not constitute error.
                                                                 21


    defect that will support a verdict of not guilty by reason
    of insanity. The normal consequences of drug and alcohol
    addiction are not a basis for relieving a defendant of
    criminal responsibility. However, there may be situations
    where a defendant who is addicted to drugs or alcohol might
    have a defense of lack of criminal responsibility available
    to him. You may consider whether the defendant had a
    mental disease or defect, apart from his drug or alcohol
    addiction, such that he lacked substantial capacity at the
    time of his crime to conform his conduct to the
    requirements of the law.

         "In addition, you may consider whether the defendant's
    voluntary consumption of drugs or alcohol activated a
    latent mental disease or defect apart from the addiction
    itself. If as a result of the activation of that latent
    mental disease or defect, the defendant lost the
    substantial capacity to understand the wrongfulness of his
    conduct . . . or to conform his conduct to the requirements
    of the law, the defendant would lack criminal
    responsibility. However, if the defendant knew or
    subjectively had reason to know under the circumstances
    that his use of drugs or alcohol would activate the latent
    mental disease or defect, he may not rely on that disease
    or defect to assert lack of criminal responsibility. In
    deciding what the defendant subjectively had reason to
    know, you should consider the question solely from the
    defendant's point of view, including his mental capacity.

         "Thus, if the Commonwealth has proved beyond a
    reasonable doubt that the defendant knew or had reason to
    know that his consumption of alcohol or drugs would
    activate a mental disease or defect, then you must find
    that the defendant was criminally responsible for his
    actions. It is not necessary that the defendant knew or
    had reason to know that he had a mental disease or defect,
    as long as he knew that his voluntary consumption of drugs
    or alcohol would trigger inappropriate conduct."


    As the Commonwealth notes, the jury instructions

substantially comported with the generally accepted Superior

Court jury instructions for explaining the impact of the

voluntary consumption of drugs or alcohol on criminal
                                                                    22


responsibility.    See Massachusetts Superior Court Criminal

Practice Jury Instructions, §§ 3.1, 3.1.1(b) (Mass. Cont. Legal

Educ. 1999 & supp. 2003).    The defendant, however, takes issue

with this instruction, claiming that the reference to a "latent"

mental disease or defect was improper under DiPadova in the

absence of evidence that the defendant knew of the effect of

drugs or alcohol on his mental illness and that it was otherwise

inconsistent with Berry.

       The defendant's argument that the instructions were

erroneous under DiPadova fails.    The Commonwealth presented

ample evidence that the defendant knew his consumption of drugs

would exacerbate the symptoms of his mental illness, especially

in his confession to police.    See DiPadova, 460 Mass. at 436-

437.    Thus, we discern no error in this aspect of the judge's

instructions.

       For reasons unknown, however, the judge and parties failed

to avail themselves of the revised instruction in Berry.

Although the judge correctly instructed the jury to "consider

whether the defendant had a mental disease or defect, apart from

his drug or alcohol addiction, such that he lacked substantial

capacity at the time of the crime to conform his conduct to the

requirements of the law," he neglected to inform the jury that

in such a case, the defendant's consumption of alcohol or

another drug cannot preclude the defense of lack of criminal
                                                                   23


responsibility.   Thus, the failure to instruct in accordance

with Berry was error.   See Berry, 457 Mass. at 617-618.

    Because the defendant did not object to the jury charge on

this ground (or raise the issue in his brief), we review the

error for a substantial likelihood of a miscarriage of justice.

See id. at 618.   "In analyzing a claim under the substantial

likelihood standard, we review the evidence and case as a whole

and consider whether any error made in the course of the trial

was likely to have influenced the jury's conclusion."      Id.,

citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992).     We

conclude that the erroneous jury instructions regarding the

impact of voluntary consumption of drugs on the lack of criminal

responsibility defense did not create a substantial likelihood

of a miscarriage of justice.

    In assessing prejudice, the issue we decide is whether the

failure to inform the jury that the voluntary consumption of

drugs or alcohol does not vitiate the defense if the defendant's

mental illness was an independent cause of his lack of criminal

responsibility likely influenced the jury's verdict.    We

conclude that it did not.

    Here, the defendant presented no evidence that at the time

of the shootings, his mental disease or defect was active, such

that he lacked substantial capacity to conform his conduct to
                                                                    24


the law.18    See Berry, 457 Mass. at 617-618.   Of the defendant's

three expert witnesses, only Spiers opined that the defendant

lacked criminal responsibility at the time of the murders.

Although Spiers agreed that the defendant was able to appreciate

the wrongfulness of his conduct, he believed that the defendant

lacked the substantial capacity to conform his conduct to the

requirements of the law, based on his neurodevelopmental

deficits, mental illness, and drug addiction.     The jury heard

Mezzacappa's opinion, however, that the defendant suffered from

schizoaffective disorder, but that the symptoms of mental

illness can worsen with substance abuse.    Bluestone testified

that she could not determine the source of the defendant's

reported symptoms because of his ongoing, varied substance

abuse, where his symptoms were consistent with mental illness

and substance abuse and withdrawal from substance abuse.     None

of the expert testimony suggested that mental illness alone was

the cause of the defendant's alleged lack of capacity.     Cf. id.

at 617-618.    See DiPadova, 460 Mass. at 432.   Therefore, the

judge's omission of the Berry instruction, although erroneous,

did not prejudice the defendant where there was no evidence that

the defendant's mental illness, regardless of his consumption of



     18
       The experts for the Commonwealth and the defendant who
opined on the matter agreed that the defendant had the capacity
to appreciate the wrongfulness of his conduct.
                                                                     25


illegal drugs, caused him to lose substantial capacity.       Berry,

supra.

    b.    Other jury instructions.   The defendant argues that

certain other jury instructions were flawed.   Specifically, he

argues that two of the instructions, concerning armed home

invasion and armed assault with intent to murder, impermissibly

contained language requiring a guilty finding where the jury

found that the Commonwealth proved each element beyond a

reasonable doubt.   He also argues that three instructions,

concerning armed assault with intent to murder, voluntary

manslaughter, and unlawful possession of a firearm, failed to

include language instructing the jury that, if they found that

the Commonwealth failed to prove each element beyond a

reasonable doubt, then the jury must find the defendant not

guilty.   The defendant's arguments are unavailing.    Because the

defendant did not object to the jury charge, we review for a

substantial likelihood of a miscarriage of justice.     See

Commonwealth v. Rodriguez, 437 Mass. 554, 559 (2002).     "Error in

a charge is determined by reading the charge as a whole, and not

by scrutinizing bits and pieces removed from their context."

Id., quoting Commonwealth v. Gunter, 427 Mass. 259, 267 (1998).

    The judge charged the jury on nine offenses.      For all nine,

the judge instructed the jury that, if they found that the

Commonwealth had proved each element beyond a reasonable doubt,
                                                                    26


then they must return a guilty verdict.   In addition, six of the

nine instructions included the instruction that if the jury

found that the Commonwealth had failed to prove each element

beyond a reasonable doubt, then they must find the defendant not

guilty.   In the instructions for armed assault with intent to

murder, voluntary manslaughter, and illegal possession of a

firearm, the judge neglected to add the latter instruction.

Although this was error, there was no substantial likelihood of

a miscarriage of justice.   The jury were properly instructed

regarding the burden of proof on several occasions during the

charge.   "Viewed as a whole, the charge to the jury indicated

that it was the jury's duty to [determine if] the Commonwealth

has met its burden of proving every element of the crime beyond

a reasonable doubt before they could convict."    Commonwealth v.

Giguere, 420 Mass. 226, 232 (1995), quoting Commonwealth v.

Sellon, 380 Mass. 220, 234 (1980).

    c.    Inference of sanity instruction.   In Commonwealth v.

Lawson, 475 Mass. 806, 815 (2016), we concluded that "the

inference that the defendant is criminally responsible because

the great majority of persons are criminally responsible is not

sufficient alone to warrant a rational finder of fact to

conclude beyond a reasonable doubt that a defendant is

criminally responsible."    We further determined that "given the

meager weight of this inference and the risk of juror confusion
                                                                    27


regarding the burden of proof, judges should not instruct juries

regarding this inference."   Id. at 815 n.8.   Here, the jury were

instructed as follows:

          "In determining whether the defendant was sane at the
     time of the alleged crime, you may consider the fact, if
     you so desire, that a great majority of men are sane and
     the resulting probability that any particular man was sane.
     It is for you do decide whether to draw that inference.
     The fact that I have given you this inference does not mean
     that you must adopt it. It is something you may not adopt,
     depending on how you view all of the evidence, including
     medical evidence given by the psychologists and other
     witnesses who have testified in this case."

     This is substantially similar to the instruction that we

discontinued in Lawson, supra at 815 n.8.19    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.    See

Commonwealth v. Johnston, 467 Mass. 674, 704 (2014).    Therefore,

although the defendant did not raise this claim of error on

appeal, we review to determine whether this error created a

substantial likelihood of a miscarriage of justice.    See

Commonwealth v. Griffin, 475 Mass. 848, 863 (2016).    We conclude

it does not.

     Although the instruction regarding the inference of sanity

was error, the judge ameliorated the error where he specifically

instructed the jury that they did not have to draw such an

     19
       This instruction has since been removed from the Model
Jury Instructions on Homicide. See Commonwealth v. Griffin, 475
Mass. 848, 863 (2016), citing Model Jury Instructions on
Homicide 1-12 (2013).
                                                                     28


inference, especially in light of the jury's view of the expert

medical testimony.   "Where the trial judge strongly and

specifically instructed that the burden is on the Commonwealth

to prove criminal responsibility beyond a reasonable doubt and

where there was substantial evidence supporting the jury's

finding of criminal responsibility, we conclude that this

instruction did not create a substantial likelihood of a

miscarriage of justice."    Griffin, 475 Mass. at 863.

    d.     Prosecutor's closing argument.   The defendant argues

that the prosecutor improperly demeaned the defense of lack of

criminal responsibility, misstated the evidence and the law, and

vouched for the credibility of the defendant's witnesses.      The

defendant did not object to the prosecutor's closing argument,

so we review for a substantial likelihood of a miscarriage of

justice.   Commonwealth v. Braley, 449 Mass. 316, 329 (2007).

"Closing arguments must be viewed 'in the context of the entire

argument, and in light of the judge's instruction to the jury,

and the evidence at trial.'"    Id. at 328-329, quoting

Commonwealth v. Colon-Cruz, 408 Mass. 533, 553 (1990).

    During his closing argument, the prosecutor stated that the

defendant was using his mental illness as a "crutch."     He

referred to the defendant's statements to a family member made

during a telephone call that was recorded during his police

interview.   The defendant told his family member, "I need all my
                                                                   29


psych papers, all my medical papers ready, everything, all my

history."    The prosecutor told the jury that it was then that

the defendant created his defense.    He went on to say, "[i]t's a

crutch, is what it is.    As I said, [the defendant] may have some

[mental] infirmities, but he's using it as a crutch to say that

he wasn't responsible."    Although the prosecutor's

characterization of the defense of lack of criminal

responsibility was better left unsaid, it did not rise to the

level of creating a substantial likelihood of a miscarriage of

justice.    He was properly suggesting that the defense of lack of

criminal responsibility was weak, and that although the

defendant may suffer from mental illness, he was criminally

responsible on July 8-9, 2007.    See Commonwealth v. Lewis, 465

Mass. 119, 129-130 (2013).

    Similarly, in his closing argument the prosecutor suggested

that the defendant was "not a raving lunatic," that he was

"rational" and that "he wasn't some recluse in a darkened room

with the shades pulled, not going out."    These statements were

rhetorical and referenced the evidence of the defendant's

ability to be an active parent and spouse when he was not on

drugs.   See Commonwealth v. Simpson, 434 Mass. 570, 586 (2001).

Especially where the jury heard evidence of the defendant's

malingering and exaggerating the symptoms of his mental illness,

the prosecutor's comments did not prejudice the defendant.
                                                                  30


Compare Lewis, 465 Mass. at 128-130 (reversal warranted where

prosecutor suggested that entire defense was "sham" and insulted

defendant by repeatedly referring to him as "street thug" during

closing argument), with Simpson, supra, quoting Commonwealth v.

Wilson, 427 Mass. 336, 350 (1998) (prosecutor's characterization

of defense argument as "insult" and "'enthusiastic rhetoric' not

ground for reversal and juries presumed to have measure of

sophistication to sort out excessive claims").

    The defendant's argument that the prosecutor misstated the

law is without merit.   Although the defendant correctly notes

that the Commonwealth's burden was to prove that the defendant

had the substantial capacity to conform his behavior to the

requirements of the law, it was not improper for the prosecutor

to refer to the defendant's behavior as "rational."   Moreover,

the prosecutor's characterization of the defendant as a "faker"

was based on evidence, as Towers opined that the defendant was

exaggerating and feigning symptoms while he was hospitalized at

Bridgewater.

    Finally, the defendant asserts that the prosecutor

improperly vouched for the credibility of Mercier and Towers.

We disagree.   "Improper vouching occurs if 'an attorney

expresses a personal belief in the credibility of a witness, or

indicates that he or she has knowledge independent of the

evidence before the jury.'"   Commonwealth v. Kee, 449 Mass. 550,
                                                                     31


560 (2007), quoting Commonwealth v. Ortega, 441 Mass. 170, 181

(2004).   Here, the prosecutor did not express any personal

belief in the credibility of the witnesses, nor did he suggest

that he had any personal knowledge that supported the witnesses'

credibility.   See Kee, supra.   The prosecutor merely observed

that Mercier was "a very moving witness, a very candid and

honest witness in all of her answers, on both direct and cross,"

and that Towers gave a "very candid appraisal of the defendant's

mental state."   The prosecutor's comments were proper.   See id.

    e.    Relief pursuant to G. L. c. 278, § 33E.    The defendant

requests that this court exercise its power under G. L. c. 278,

§ 33E, to reverse his convictions and either order a new trial

or enter judgments of not guilty by reason of mental disease or

defect.   "When we undertake review under § 33E, we do not

function as a second jury. . . . That is we do not determine

what verdict we would have returned but whether the verdict 'was

against the law or weight of the evidence, or because of newly

discovered evidence, or for any other reason that justice may

require'" (citation omitted).    Johnston, 467 Mass. at 705,

quoting G. L. c. 278, § 33E.     We have examined the entire case,

considered the law and the evidence, and conclude that the

defendant is not entitled to any relief from the judgments

against him.   See Commonwealth v. Brown, 376 Mass. 156, 167

(1978).
                      32


Judgments affirmed.
