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SJC-10944

                  COMMONWEALTH   vs.    RYAN JONES.



      Bristol.      November 10, 2017. - February 20, 2018.

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


Homicide. Mental Impairment. Developmentally Disabled Person.
     Constitutional Law, Sentence, Cruel and unusual punishment.
     Practice, Criminal, Competency to stand trial, Sentence.



     Indictment found and returned in the Superior Court
Department on August 17, 2006.

     A hearing on the defendant's competency to stand trial was
held before D. Lloyd Macdonald, J., and the case was tried
before Gary A. Nickerson, J.


     Brett J. Vottero for the defendant.
     Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.


    GAZIANO, J.   A Superior Court jury found the defendant

guilty of murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty in the death of

Valerie Oransky on July 22, 2006.      Prior to and during trial,

the defendant maintained that he was not competent to stand
                                                                     2


trial due to an organic brain injury he had suffered as an

infant and a current diagnosis of pervasive developmental

disorder not otherwise specified.    The defendant was the subject

of competency hearings before five different Superior Court

judges, and was found competent to stand trial at the first,

third, fourth, and fifth hearings.    At trial, his defense was

that he was not criminally responsible.

    On appeal, the defendant argues that the judge who

conducted his third competency hearing erred in finding him

competent to stand trial notwithstanding testimony from both

prosecution and defense experts that the defendant was not

competent.   He also argues that a mandatory sentence of life in

prison without the possibility of parole, imposed on a

developmentally disabled individual, constitutes cruel and

unusual punishment in violation of Federal and State

constitutional rights.   Finally, the defendant asks us to use

our extraordinary power under G. L. c. 278, § 33E, to order a

new trial or reduce the verdict.    For the reasons that follow,

we affirm the conviction and decline to exercise our authority

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

    1.    Procedural history.   In August, 2006, a grand jury

indicted the defendant on one charge of murder in the first

degree.   He was arraigned in the Superior Court in September,

2006, and pleaded not guilty.   In October, 2007, defense counsel
                                                                    3


filed a motion seeking an examination of the defendant for

competency pursuant to G. L. c. 123, § 15 (a).    The defendant

was evaluated for competency in December, 2007, and was found

competent to stand trial.    In January, 2008, the defendant was

committed to Bridgewater State Hospital (Bridgewater) for

evaluation pursuant to G. L. c. 123, § 15 (b), after providing

notice that he intended to rely on a defense of a lack of

criminal responsibility.    In February, Bridgewater sought an

extension of the commitment, pursuant to G. L. c. 123, § 15 (b).

In January, 2009, shortly before the defendant's then-scheduled

trial, the judge who was to have been the trial judge ordered

the defendant again committed to Bridgewater for observation,

pursuant to G. L. c. 123, § 15 (b).    Later that month, the

Department of Mental Health filed a motion for an extension of

the commitment.   That motion was allowed.   In March, 2009,

following a competency hearing, a different judge found the

defendant not competent to stand trial, stayed the trial, and

ordered the defendant to be held in the Bristol County house of

correction for a period of six months, with a status hearing to

be conducted at that point.    In October, 2009, the Commonwealth

sought a competency evaluation, and the judge who had ordered

the defendant committed in January, 2009, again ordered him

committed to Bridgewater for observation.    In February, 2010,

after a competency hearing, that judge found the defendant
                                                                   4


competent to stand trial.   In August, 2010, after a subsequent

evaluation, another judge found the defendant competent.    During

the course of the trial in October, 2010, the trial judge (who

had not previously been involved in the case) ordered the

defendant evaluated for competency based on his behavior in the

court room and in a holding cell in the court house.   The judge

then found the defendant competent.   At the close of the

Commonwealth's case, and again at the close of all the evidence,

the defendant moved for a required finding of not guilty by

reason of insanity.

     Overall, the defendant was the subject of four competency

hearings prior to trial, and a fifth competency hearing during

trial.   He was found competent to stand trial after the first

hearing, incompetent at the second hearing, and competent at the

third, fourth, and fifth hearings.1

     The judge instructed the jury on murder in the first degree

on theories of deliberate premeditation and extreme atrocity or

cruelty, murder in the second degree, manslaughter, and the

defense of not guilty by reason of insanity.   The jury convicted




     1
       Further details of the competency proceedings are
discussed infra, in our consideration of the defendant's
challenge of the finding of competency at his third hearing.
                                                                      5


the defendant of murder in the first degree on theories of

deliberate premeditation and extreme atrocity or cruelty.2

     2.   Trial.    We recite the facts the jury could have found,

reserving some facts for later discussion.

     a.   Commonwealth's case.    In July, 2006, the defendant was

working as a dishwasher at a restaurant in Dartmouth.     He had

been working at the restaurant for more than three years, and

his performance was generally satisfactory, but he sometimes had

disputes with the manager (victim) over his use of the

dishwasher to wash pots and pans.     The defendant was supposed to

use the dishwasher for silverware, glasses, and dishes, but was

to wash pots and pans by hand.     The victim repeatedly told the

defendant not to put the pots and pans in the dishwasher.     He

often would do so anyway, and undertook various methods to

conceal this from the victim.     The two argued about the use of

the dishwasher on many occasions.

     At some point, the defendant began to express his anger

about the victim's instructions on dishwashing to other

employees.   The defendant told one coworker, "I'm going to kill

that f'ing B."     Another coworker reported that, at least once a

week, the defendant made gestures such as holding up his middle

finger behind the victim's back.     Another coworker said that the


     2
       At sentencing, the judge ordered that prison authorities
be apprised of the defendant's mental condition.
                                                                     6


defendant would "have a bung[e]e cord in his hand and he would

snap it like he was going to choke [the victim] with it."

Approximately two weeks before the stabbing, the defendant told

one of his coworkers that he was going to take the victim to the

bathroom early in the morning before the restaurant got busy and

stab or strangle her.    Several of the restaurant employees

reported this statement to the victim, but she interpreted it as

a joke.

    On July 22, 2006, the defendant arrived at work earlier

than he did ordinarily.     He told the victim that something was

wrong with one of the toilets, and they walked toward the

women's restroom.   Shortly thereafter, the defendant left the

restroom and told a coworker that she should telephone 911

because someone had come through the back door with a knife and

had stabbed the victim.     By the time paramedics arrived, the

victim was not breathing.    She had been stabbed multiple times,

strangled, and beaten.    The medical examiner determined that the

cause of death was multiple stab wounds, with injury to the

aorta, lung, and kidney, and blunt trauma with brain contusions.

A knife, a bungee cord, and a pipe from the dishwasher were

found in the bathroom stall where the victim's body was found.

A membership card for a wholesale club with the name of someone

who did not work for the restaurant also was found on the floor

near the victim.
                                                                     7


     While many of the defendant's coworkers were visibly upset

at news of what had happened to the victim, the defendant was

described as being calm.   One of his coworkers noticed that he

had blood spots on his face and glasses and was hiding his left

hand.   The defendant told some coworkers and the investigating

officers that the perpetrator was a black man wearing a white

shirt, black pants, a dark hooded sweatshirt, white sneakers,

leather gloves, and a black mask.   He said that the man had come

through the back door with a knife and initially tried to stab

him, before stabbing the victim and running out the back door.

Some of the defendant's coworkers immediately left the

restaurant to look for the perpetrator; they were unable to find

anyone matching the defendant's description.   A police officer

with a canine trained to track scents also was unable to locate

the suspect the defendant had described.

     Several restaurant employees had seen the defendant heading

toward the bathroom with the victim, and the investigation

almost immediately focused on the defendant.   Dartmouth police

officers brought the defendant to the police station on the day

of the stabbing and interviewed him for a number of hours.     The

defendant initially told police the same thing he had said at

the scene, that an unknown man had burst in through the back

door and stabbed the victim.   The defendant had visible cuts on

one hand and on his left side, which he said he had sustained
                                                                   8


when he attempted to defend himself from the victim's assailant.

Ultimately, after what the investigating officer described as

"confrontational" questioning, the defendant told police that he

had stabbed the victim; it was a "mistake," but he did not know

"what else . . . he [was] going to do" because she kept

"nagging" him.

    Deoxyribonucleic acid (DNA) tests on the blood found on the

defendant's glasses, socks, and watch matched the victim.    The

defendant was a potential contributor to blood found on the

knife, a handicapped stall in the women's bathroom that had its

own sink, and the wholesale club card.

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

case-in-chief, Dr. Ronald Ebert, a forensic psychologist,

testified as to the defendant's lack of criminal responsibility

on the day of the homicide.   The defendant's father also

testified to the defendant's medical history, his developmental

issues, and his attendance at special education courses

throughout his schooling.

    The father provided background information on the

defendant's mother's medical condition during pregnancy (a

uterine infection), the defendant's hospitalization and coma as

a result of spinal meningitis when he was six months old, and

the first signs of the defendant's developmental deficits, when

he was approximately two and one-half years old.    The father
                                                                    9


described the defendant as testing above age level for certain

skills and "well behind" for others.   Although he was placed in

a special needs program, his ability to communicate verbally

with others was "minuscule" and he was resistant to change.       The

defendant's seizure disorder first became apparent when he was

in first or second grade.   The defendant resisted taking his

seizure medication and was hospitalized at least three times

because of seizures.

    In elementary school, the defendant would at times act

inappropriately, throwing tantrums and sometimes barking and

crawling around on all fours.   The defendant was prescribed

medication for attention deficit disorder.   In fourth grade, the

defendant transferred to a new school, where he was regularly

bullied and beaten up by older students.   After that, the

defendant began to shut down and interacted with others even

less.   The defendant's parents were separated when he was ten

years old, and were divorced when he was thirteen; after the

separation, he lived primarily with his mother.   In high school,

also in a special needs program, the defendant had "decent"

grades and did well in writing, while still demonstrating

difficulties with verbal communication.

    After graduation, the defendant worked for brief periods at

a number of jobs that he obtained through an agency that helped

disabled people get jobs and then provided job coaching.     He
                                                                      10


also qualified for supplemental security income benefits because

of his development delays and seizure disorder.      The dishwasher

position at the restaurant was the defendant's first long-term

job.       The defendant's father drove him to work in the morning,

and his mother picked him up in the afternoon; his father picked

him up when his mother could not.      The defendant's father would

take the defendant to a movie almost every week and noted that

there were times when the defendant was unable to distinguish

between the fictional people and events in the movies and

reality.

       Ebert testified to the defendant's medical and educational

history, and to the defendant's probable mental state at the

time of the crime.      Based on interviews with the defendant,

reviews of past records, neurological testing, and other

information, Ebert concluded that, at the time of the stabbing,

the defendant had been suffering from a mental defect that

impaired his ability to conform his conduct to the law or to

appreciate the criminality of his actions.      Ebert testified that

the defendant suffers from pervasive developmental disorder not

otherwise specified, which is a variation of autism.3      Although



       3
       The version of the Diagnostic and Statistical Manual of
Mental Disorders in effect at the time of the defendant's
diagnosis, the DSM-IV, defines pervasive developmental disorder
not otherwise specified as
                                                                  11


there was evidence that the defendant had planned the crime in

advance, it was a result of his disability, and he had been

unable to control his thought processes or behavior.

    In rebuttal, the Commonwealth called Dr. Karin Towers, a

forensic psychologist who also had interviewed the defendant and

had reviewed the relevant records while working as a forensic

evaluator at Bridgewater.    Towers testified that, in her

opinion, the defendant understood the wrongfulness of his

actions and had substantial capacity to conform his conduct to

the requirements of the law despite his pervasive developmental

disorder.    She noted that the defendant had made decisions to

take the victim into the bathroom where no one could see what

was happening and to fabricate the story of the unknown

assailant.   The defendant also told Towers that he had


    "a severe and pervasive impairment in the development of
    reciprocal social interaction associated with impairment in
    either verbal or nonverbal communication skills or with the
    presence of stereotyped behavior, interests and activities
    where the criteria are not met for a specific Pervasive
    Developmental Disorder, Schizophrenia, Schizotypal
    Personality Disorder, or Avoidant Personality Disorder."

American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 84 (4th ed. 2000).

     The DSM-IV indicates that "this category includes 'atypical
autism.'" Id. The most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders, the DSM-V, notes that
"[i]ndividuals with a well-established DSM-IV diagnosis of . . .
pervasive developmental disorder not otherwise specified should
be given the diagnosis of autism spectrum disorder." American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 51 (5th ed. 2013).
                                                                   12


considered whether to take the knife with him or to leave it,

and that, previously, he had controlled his anger toward the

victim.

    3.    Discussion.    In this direct appeal, the defendant

raises two claims.   First, he challenges the finding that he was

competent to stand trial.    He focuses particularly on the third

competency hearing, and contends that it was error for the judge

to find him competent given that both the prosecution and

defense experts testified that he was not competent.     Second,

the defendant challenges the imposition of a mandatory sentence

of life imprisonment without the possibility of parole on a

developmentally disabled person; he argues that such a sentence

is a violation of the Eighth and Fourteenth Amendments to the

United States Constitution and art. 26 of the Massachusetts

Declaration of Rights.

    a.    Finding of competency.    The defendant specifically

challenges the finding of competency after the third hearing.

To review adequately the appropriateness of the finding of

competency to stand trial at the third hearing, it is necessary

to consider the psychiatric evaluations, the previous hearings,

and testimony prior to the judge's decision, as well as the two

competency hearings that took place after the third hearing.

    i.    Initial evaluations and proceedings.    Following his

arraignment, the defendant was ordered to be examined for
                                                                    13


competency pursuant to G. L. c. 123, § 15 (a).    In anticipation

of the competency hearings, the defendant met with multiple

clinicians, who also reviewed his medical and educational

history.    Notably, the defendant contracted spinal meningitis

when he was six months old; he was hospitalized for several

weeks, first in a "stupor" and later in a coma.   The illness

resulted in permanent, organic brain injury.   In addition, he

has suffered from a seizure disorder since he was a very young

child.    While the defendant has tested as being in the

borderline to low-average range on intelligence quotient (IQ)

tests, he has demonstrated significant impairment in language

processing and verbal communication and understanding from the

age of two years old.   He has had difficulty in interacting with

people, was bullied as a child because of his lack of social

skills and inability to communicate, and exhibited outbursts and

uncontrollable behavior as a child.   The defendant initially was

diagnosed with attention deficit disorder and oppositional

defiant disorder, and was treated with medication for

hyperactivity.   The defendant attended special education classes

throughout his school career, but was able to graduate from high

school.

    The general consensus of all the experts who testified at

the competency hearings, as well as many of the clinicians who

examined him as a child and as a teenager, was that the
                                                                  14


defendant suffers from what is now known as "pervasive

developmental disorder not otherwise specified."

    Ebert evaluated the defendant in January, 2007, at the

request of the defendant's attorney; Ebert's October, 2007,

report was considered at all the pretrial competency hearings.

Ebert also referred the defendant to Dr. Nancy Hebben for a

neuropsychological evaluation; Hebben conducted an evaluation of

the defendant in May, 2007.   Ebert testified at the second,

third, and fourth competency hearings, and at trial, on behalf

of the defendant.   Dr. Karin Towers and Dr. Sara Beszterczey

performed evaluations as ordered by the court; their reports

were also reviewed in conjunction with each of the competency

hearings.

    Hebben administered a series of tests during the

neuropsychological evaluation, which she described in her

report.   The defendant tested "low normal" or "borderline" in

many areas of cognitive functioning, but demonstrated a

significant deficit in verbal comprehension ability.

Considering all of the results in concert, she concluded that

the defendant's most appropriate diagnosis was pervasive

developmental disorder not otherwise specified, given his

impairments in verbal comprehension and social interaction.

Ebert had reached the same diagnosis.   He also determined that

the defendant suffered from deficits in receptive and expressive
                                                                    15


language, poor social skills, and rigidity in his behavior and

interests.   Ebert concluded that, because of these impairments

and the defendant's inability rationally to understand the

proceedings against him and to assist his attorney, the

defendant was not competent to stand trial.   While the defendant

could explain theoretically some of the roles of the

participants at a trial, he had difficulty in attempting to

apply those general concepts to his own situation, suggesting,

for example, that if he apologized for his behavior he could go

home.

    At the first competency hearing, in December, 2007, a court

clinician, Dr. Barbara McElroy, testified, based on a brief

interview with the defendant and the reports by Ebert and

Hebben, that the defendant had a factual and rational

understanding of the proceedings against him and therefore was

competent to stand trial.   McElroy indicated that she had two

main concerns:   the defendant was not aware of the specific

charges he was facing, and did not seem to understand the

concept of plea bargains.   McElroy concluded, however, that her

concerns were minor overall, and that they could be addressed

with continued education of the defendant by his attorney.     To

support this finding, she noted that the defendant had a better

understanding when she met with him than he did when he
                                                                     16


initially was evaluated by Ebert in January, 2007.     The judge

found the defendant competent.

    The case was assigned for trial in January, 2009.       At the

end of December, 2008, the defendant requested another

competency examination.   After an evaluation, a licensed

psychologist recommended further evaluation, and the defendant

was committed to Bridgewater for observation, pursuant to G. L.

c. 123, § 15 (b).   In January, 2009, the Department of Mental

Health moved to extend the commitment, and a different Superior

Court judge allowed the motion.   In February, 2009, Towers

conducted an evaluation of the defendant as ordered by the court

In February, 2009, Towers issued a report in which she noted

that the defendant possessed a superficial understanding of

court proceedings, but that it was unclear whether he truly

understood.   A second competency hearing was scheduled.

    At the second hearing, in March, 2009, Towers and Ebert

both testified that the defendant had a basic factual

understanding, but that they were concerned about his ability to

make decisions rationally regarding his case.   At times, the

defendant would answer their questions without fully

understanding what was being asked.   Towers opined that the

defendant might be able to overcome his deficits through

continued education.   Ebert disagreed, testifying that, although

the defendant could repeat information given to him, his
                                                                    17


processing of the information and his beliefs would not

necessarily change in response to new information.    As an

example, Ebert referred to the defendant's belief that he would

be able to go home if he apologized to the judge.    The judge

noted the difference in the experts' opinions as to possible

future competency, but concluded based on the consensus of

Towers and Ebert that the defendant was at that time not

competent to stand trial.

    ii.    Determination of competency at the third hearing.       The

third competency hearing took place over the course of three

days in January and February, 2010.    In October, 2009,

Beszterczey performed an evaluation of the defendant as ordered

by the court.    She and Ebert testified at the hearing, along

with three of the defendant's former coworkers and the

defendant's former job coach.    The lay witnesses testified that,

other than his decision to put pots and pans in the dishwasher,

the defendant was able to perform his job well, and that they

occasionally would have casual conversations with him.     Ebert

again opined that the defendant was not competent to stand

trial.    Beszterczey commented that she believed the defendant

might not be cooperating fully, interfering with her ability to

complete a full competency interview, but she did not think that

any potential malingering necessarily meant that the defendant

was competent.   She concluded that the defendant was presenting
                                                                  18


with significant deficits in abilities associated with

competency to stand trial, but that it was possible he could

become competent with further education.

    In a nine-page memorandum and order, a judge who had not

previously been involved in the case ruled that the defendant

was competent to stand trial.   The judge pointed to the

defendant's low-average IQ score; his "satisfactory three[-]year

job history, where he impressed his [coworkers] by his diligence

and essential normality"; the experts' testimony that the

defendant's diagnosis had not changed since the time of the

killing; and the comments in Beszterczey's evaluation about

potential malingering.

    iii.   Final pretrial competency hearing.   Approximately six

months later, during a hearing before a different judge, defense

counsel requested another competency hearing.   The defendant was

examined for competency for a fourth time at the end of August,

2010.   Dr. Leah Logan, a court-based clinical psychologist,

testified after reviewing the defendant's records and meeting

with him for approximately one hour.   Logan concluded that,

while the defendant had needed some questions explained again in

simpler terms, he did not have significant deficits, and there

was no evidence that his condition had deteriorated since the

previous hearing.   She suggested that any deficits in

understanding the defendant did have could be overcome through
                                                                  19


communication with his attorney, repetition and further

explanation, and sufficient time for him to process and

understand questions he might be asked on cross-examination.

The judge determined that there had been no material change

since the previous hearing, and therefore that the defendant was

still competent to stand trial.   He found that the defendant's

acknowledged mental impairments did not affect his competency,

and that any potential issues could be addressed through

preparation prior to trial.

    iv.   Midtrial competency hearing.   On the third day of

trial, after the audio-video recording of the defendant's

interrogation was played for the jury, a court officer reported

to the judge that, during the lunch break, the defendant had

begun apparently interacting with an invisible dog.   The judge

became concerned that the defendant might be decompensating, and

decided to bring in the court clinician to examine the

defendant, and to review whatever records the clinician felt

necessary, in order to determine whether the defendant remained

competent.   On inquiry by the judge, the defendant's attorney

observed that the defendant seemed to "decompensate" more in

times of stress, and had been manifesting small signs of stress,

such as writing notes to himself and repeating words, while

sitting at counsel table during and after the playing of the

recording of the interview.
                                                                    20


    The defendant was examined briefly by Logan.      She testified

that she thought the defendant wanted the judge and the

attorneys to believe that he was seeing a dog, but that she

thought he was not actually having a visual hallucination.    She

concluded that the defendant was simply experiencing stress, and

provided some recommendations for measures that the defendant

might use to handle the trial environment.   The judge concluded,

with an oral explanation on the record, that the Commonwealth

had fulfilled its burden of proving competency by a

preponderance of the evidence.   In reaching that finding, he

noted that Logan was a clinical psychologist with forensic

experience who was aware of the defendant's history.    The judge

additionally relied on his own observations of the defendant

over the course of the trial, as well as during the competency

hearing, and the reports and findings from the previous

competency hearings.

    v.   Whether the Commonwealth established the defendant's

competency to stand trial.   The defendant appeals from the

finding of competency at the third hearing; he contends that the

judge abused his discretion by disregarding the experts'

consensus that the defendant was not at that time competent to

stand trial.   The defendant additionally contends that the judge

inappropriately relied on evidence from lay witnesses, who could

testify to the defendant's behavior only at the time of the
                                                                    21


incident and not at the time of the competency hearing, and that

the judge used an improper balancing test by considering the

public interest in the prosecution of those who commit crimes to

be of equal significance to the due process concern of

competency to stand trial.

     "It has long been accepted that a person whose mental

condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult

with counsel, and to assist in preparing his defense may not be

subjected to a trial."    Commonwealth v. Crowley, 393 Mass. 393,

398 (1984), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975).

In the Commonwealth, G. L. c. 123, § 15, allows the examination

of a defendant whose competency is called into question.4    If a

trial judge doubts whether a defendant is competent to stand

trial, he or she must, on his or her own initiative, conduct a



     4
         General Laws c. 123, § 15 (a), provides, in relevant part:

          "Whenever a court of competent jurisdiction doubts
     whether a defendant in a criminal case is competent to
     stand trial or is criminally responsible by reason of
     mental illness or mental defect, it may at any stage of the
     proceedings after the return of an indictment or the
     issuance of a criminal complaint against the defendant,
     order an examination of such defendant to be conducted by
     one or more qualified physicians or one or more qualified
     psychologists. . . . When an examination is ordered, the
     court shall instruct the examining physician or
     psychologist in the law for determining mental competence
     to stand trial and criminal responsibility."
                                                                    22


full hearing.5   See Commonwealth v. Nickerson, 388 Mass. 246, 250

(1983); Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 272-273

(2012).    At a competency hearing, the judge should determine


     5
         General Laws c. 123, § 15 (b), (c), provide, in relevant
part:

          "(b) After the examination described in paragraph (a),
     the court may order that the person be hospitalized at a
     facility or, if such person is a male and appears to
     require strict security, at the Bridgewater state hospital,
     for a period not to exceed twenty days for observation and
     further examination, if the court has reason to believe
     that such observation and further examination are necessary
     in order to determine whether mental illness or mental
     defect have so affected a person that he is not competent
     to stand trial or not criminally responsible for the crime
     or crimes with which he has been charged. . . . If, before
     the expiration of such twenty day period, an examining
     qualified physician or an examining qualified psychologist
     believes that observation for more than twenty days is
     necessary, he shall so notify the court and shall request
     in writing an extension of the twenty day period,
     specifying the reason or reasons for which such further
     observation is necessary. Upon the receipt of such
     request, the court may extend said observation period, but
     in no event shall the period exceed forty days from the
     date of the initial court order of hospitalization;
     provided, however, if the person requests continued care
     and treatment during the pendency of the criminal
     proceedings against him and the superintendent or medical
     director agrees to provide such care and treatment, the
     court may order the further hospitalization of such person
     at the facility or the Bridgewater state hospital.

          "(c) At the conclusion of the examination or the
     observation period, the examining physician or psychologist
     shall forthwith give to the court written signed reports of
     their findings, including the clinical findings bearing on
     the issue of competence to stand trial or criminal
     responsibility. Such reports shall also contain an
     opinion, supported by clinical findings, as to whether the
     defendant is in need of treatment and care offered by the
     [Department of Mental Health]."
                                                                    23


whether the defendant has "sufficient present ability to consult

with his lawyer with a reasonable degree of rational

understanding and . . . a rational as well as factual

understanding of the proceedings against him."6    Commonwealth v.

Vailes, 360 Mass. 522, 524 (1971), quoting Dusky v. United

States, 362 U.S. 402, 402 (1960).    The Commonwealth has the

burden to prove competency by a preponderance of the evidence.

Crowley, 393 Mass. at 400-401.    A judge's competency

determination is reviewed for abuse of discretion.    See

Commonwealth v. Hung Tan Vo, 427 Mass. 464, 468-469 (1998).

     In reaching such a determination, judges may consider their

own "observations of the defendant's demeanor and behavior

. . . , reports of psychiatric examinations of the defendant,

statements to the judge about the defendant's conduct and mental

condition, and the testimony of expert witnesses."       Commonwealth

v. Hill, 375 Mass. 50, 54-55 (1978).    Observations made closest


     6
         General Laws c. 123, § 15 (d), provides, in relevant part:

          "If on the basis of such reports the court is
     satisfied that the defendant is competent to stand trial,
     the case shall continue according to the usual course of
     criminal proceedings; otherwise the court shall hold a
     hearing on whether the defendant is competent to stand
     trial; provided that at any time before trial any party to
     the case may request a hearing on whether the defendant is
     competent to stand trial. A finding of incompetency shall
     require a preponderance of the evidence. If the defendant
     is found incompetent to stand trial, trial of the case
     shall be stayed until such time as the defendant becomes
     competent to stand trial, unless the case is dismissed."
                                                                    24


to the time of trial are the most appropriate in determining

competency.    See Commonwealth v. Companonio, 445 Mass. 39, 52

(2005) ("The time frame for determining a defendant's competency

to stand trial is 'the condition of the defendant at the time of

trial'" [citation omitted]).

    While it may be useful for a judge to hear opinions from

medical experts, the determination is ultimately a legal, not a

medical, judgment.     See Kansas v. Hendricks, 521 U.S. 346, 359

(1997) (noting that legal definition of "competency" need not

mirror its medical definition).    "The law should not, and does

not, give the opinions of experts on either side of . . . [an]

issue the benefit of conclusiveness."     Commonwealth v. DiMinico,

408 Mass. 230, 235 (1990), quoting Commonwealth v. Lamb, 372

Mass. 17, 24 (1977).    Cf. Commonwealth v. Kappler, 416 Mass.

574, 579 (1993) (fact finders are not required to accept

"uncontroverted testimony of experts"); Commonwealth v. Shelley,

381 Mass. 340, 347 (1980) (fact finder is "not obliged to

believe the testimony of any of the expert witnesses").

    The judge who conducted the third competency hearing had

the authority to exercise his discretion and choose not to

credit the experts' conclusions that the defendant was not

competent.    He used the correct standard to determine

competency, appropriately placed the burden on the Commonwealth

to prove competency by a preponderance of the evidence, and
                                                                     25


wrote a thorough memorandum explaining the reasons for his

conclusion.    Moreover, after that hearing, at subsequent

hearings, two other judges found the defendant competent to

stand trial.   Because competency may be fluid and should be

determined as close to trial as possible, it is most significant

that the defendant was found competent in a hearing during the

trial.    In sum, we discern no error in the judge's determination

at the third competency hearing.

     b.   Mandatory imposition of life sentence without

possibility of parole on a developmentally disabled defendant.

The defendant argues also that the mandatory imposition of a

sentence of life imprisonment without the possibility of parole

on a defendant who is developmentally disabled constitutes cruel

and unusual punishment under the Eighth and Fourteenth

Amendments and cruel or unusual punishment under art. 26.      The

defendant asks that we extend the United States Supreme Court's

holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002), that

imposition of the death penalty on a person with an intellectual

disability violates the United States Constitution,7 to

imposition of a mandatory sentence of life in prison without the

     7
       Atkins v. Virginia, 536 U.S. 304 (2002), uses the language
"mentally retarded." That term subsequently has been replaced
by the term "intellectually disabled." See Hall v. Florida, 134
S. Ct. 1986, 1990 (2014); Commonwealth v. St. Louis, 473 Mass.
350, 357 (2015); Pub. L. 111–256, 111th Cong., 124 Stat. 2643
(2010) (Rosa's Law).
                                                               26


possibility of parole on defendants with developmental

disabilities.8


     8
       General Laws c. 123B, § 1, distinguishes between
intellectual and developmental disabilities as follows:

          "[A] [p]erson with a developmental disability [is] (1)
     an individual [five] years of age or older with a severe,
     chronic disability that: (i) is attributable to a mental
     or physical impairment resulting from intellectual
     disability, autism, [S]mith-[M]agenis syndrome or Prader-
     Willi syndrome; (ii) is manifested before the individual
     attains age [twenty-two]; (iii) is likely to continue
     indefinitely; (iv) results in substantial functional
     limitations in [three] or more of the following areas of
     major life activity: (1) self-care; (2) receptive and
     expressive language; (3) learning; (4) mobility; (5) self-
     direction; (6) capacity for independent living; and (7)
     economic self-sufficiency; and (v) reflects the
     individual's need for a combination and sequence of
     special, interdisciplinary or generic services, supports or
     other assistance that is of a lifelong or extended duration
     and is individually planned and coordinated; or (2) an
     individual under the age of [five] who has a substantial
     developmental delay or specific congenital or acquired
     condition with a high probability that the condition will
     result in a developmental disability if services are not
     provided. . . ."

          "[A] [p]erson with an intellectual disability [is] a
     person who has an intellectual disability, characterized by
     significant limitations in both intellectual functioning
     and adaptive behavior as expressed in conceptual, social
     and practical adaptive skills and beginning before age 18,
     and consistent with the most recent definition provided by
     the American Association on Intellectual and Developmental
     Disabilities; provided, that in applying this definition
     the following shall be considered: (i) limitations in
     present functioning within the context of community
     environments typical of the individual's age, peers and
     culture; (ii) cultural and linguistic diversity and
     differences in communication, sensory, motor and behavioral
     factors; (iii) limitations often coexist with strengths
     within an individual; (iv) an important purpose of
     describing limitations is to develop a profile of needed
                                                                  27


    In support of this argument, the defendant relies on cases

from the United States Supreme Court holding that imposition of

the death penalty on juveniles is unconstitutional, Roper v.

Simmons, 543 U.S. 551, 578 (2005); that a mandatory sentence of

life without the possibility of parole for nonhomicide offenses

committed by juveniles violates the Federal Constitution, Graham

v. Florida, 560 U.S. 48, 75 (2010); and that a mandatory

sentence of life in prison without the possibility of parole for

juveniles who commit murder is unconstitutional, Miller v.

Alabama, 567 U.S. 460, 470 (2012).   We have extended the Court's

holding in Miller, supra, in deciding that even the

discretionary imposition of a sentence of life without the

possibility of parole on juveniles is in violation of art. 26.

See Diatchenko v. District Attorney for the Suffolk Dist., 466

Mass. 655, 674 (2013), S.C., 471 Mass. 12 (2015).

    The Commonwealth contends that the defendant's argument

would require significant extrapolation from existing precedent,

given that the defendant is not a juvenile and is not subject to

the death penalty; there is no precedent in this court or the

United States Supreme Court concerning prison sentences for

developmentally disabled individuals.   Furthermore, the



    supports; and (v) with appropriate personalized supports
    over a sustained period, the life functioning of a person
    with an intellectual disability will generally
    improve . . . ."
                                                                   28


Commonwealth argues, adults with intellectual or developmental

disabilities may not have the same prospects for rehabilitation

as do juveniles, whose brains have not yet fully matured.    The

Commonwealth maintains that much of the reasoning underlying the

United States Supreme Court's and this court's jurisprudence on

sentences for juveniles does not apply in this case because,

unlike juveniles, who act impulsively and are unduly influenced

by others due to their lack of maturity, the defendant has an

immutable condition, did not act impulsively, and was not unduly

influenced by others.

    The Eighth Amendment and art. 26 "draw [their] meaning from

the evolving standards of decency that mark the progress of a

maturing society."   Atkins, 536 U.S. at 311-312, quoting Trop v.

Dulles, 356 U.S. 86, 101 (1958).   See Diatchenko, supra at 669;

Libby v. Commissioner of Correction, 385 Mass. 421, 435 (1982)

("Article 26, like the Eighth Amendment, bars punishments which

are 'unacceptable under contemporary moral standards'" [citation

omitted]).   In deciding whether a punishment is cruel and

unusual, courts look to "'objective indicia of society's

standards' . . . to determine whether there is a national

consensus against the sentencing practice at issue."   Graham,

560 U.S. at 61, quoting Roper v. Simmons, 543 U.S. at 563.     See

Good v. Commissioner of Correction, 417 Mass. 329, 335 (1994)

("In divining contemporary standards of decency, we may look to
                                                                  29


State statutes and regulations, which reflect the public

attitude as to what those standards are").    Courts also

"determine in the exercise of [their] own independent judgment

whether the punishment in question violates" contemporary moral

standards to the extent that it is a constitutional violation.

See Graham, supra.

    "[T]he clearest and most reliable objective evidence of

contemporary values is the legislation enacted by the country's

legislatures" (quotations and citation omitted).    Atkins, 536

U.S. at 312.   Courts that have addressed this issue to date have

declined to extend Atkins, supra, and Miller, supra, to disallow

mandatory sentences of life without parole for people with

intellectual or developmental disabilities, largely in

unpublished or unreported opinions.   See State v. Little, 200

So. 3d 400, 405 (La. Ct. App. 2016) (rejecting downward

departure from mandatory sentence of life without parole for

defendant with developmental disability).    See also Pifer, Is

Life the Same as Death?:    Implications of Graham v. Florida,

Roper v. Simmons, and Atkins v. Virginia on Life Without Parole

Sentences for Juvenile and Mentally Retarded Offenders, 43 Loy.

L.A. L. Rev. 1495 (2010).

    This court has "the inherent authority to interpret [S]tate

constitutional provisions to accord greater protection to

individual rights than do similar provisions of the United
                                                                     30


States Constitution" (quotations and citation omitted).

Diatchenko, 466 Mass. at 668.     We did so in Diatchenko, supra at

669, where we held that "the imposition of a sentence of life in

prison without the possibility of parole for the commission of

murder in the first degree by a juvenile under the age of

eighteen is disproportionate not with respect to the offense

itself, but with regard to the particular offender."     In that

case, we considered scientific evidence on adolescent brain

development and how it may affect a juvenile's personality and

behavior.    Id. at 669-671.

    Similarly, in Atkins, 536 U.S. at 318, the United States

Supreme Court determined that intellectually disabled

individuals "have diminished capacities to understand and

process information, to communicate, to abstract from mistakes

and learn from experience, to engage in logical reasoning, to

control impulses, and to understand the reactions of others,"

leading them to be less culpable than other offenders.     The

Court therefore focused on two reasons categorically to exclude

individuals with intellectual disabilities from execution.        Id.

at 318.     First, neither justification for the death penalty,

retribution or deterrence, applies to intellectually disabled

defendants.    Id. at 318-319.   Because intellectually disabled

individuals are less culpable, their actions do not merit that

level of retribution, and their impairments make it less likely
                                                                     31


that they can be deterred by the possibility of the death

penalty.   Id. at 319-320.   Second, intellectually disabled

individuals may receive the death penalty more frequently than

they should, based on the facts of their cases, because of the

increased possibility of false confessions and the lesser

ability of intellectually disabled defendants to make a

persuasive showing of mitigation.    Id. at 320-321.   These

concerns are less extreme, however, when an individual is facing

a prison sentence, even when it is life without parole, than

when an individual faces the death penalty.

    At this time, we decline to extend Atkins, supra, and

Miller, supra, either to eliminate sentences of life in prison

without the possibility of parole for people with developmental

disabilities or to require that such sentences be discretionary

rather than mandatory.    Whether it is cruel and unusual under

the Eighth and Fourteenth Amendments or cruel or unusual under

art. 26 to impose a mandatory sentence of life without parole on

a person with an intellectual disability is a difficult question

that is not before us here, where the defendant has been

diagnosed with a developmental disability.

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

asks that we exercise our extraordinary power pursuant to G. L.

c. 278, § 33E, to order a new trial or reduce the verdict to

murder in the second degree.   After carefully reviewing the
                                                              32


record pursuant to our duty under G. L. c. 278, § 33E, we

decline to set aside the verdict or to reduce the degree of

guilt.

                                   Judgment affirmed.
