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SJC-08921

                COMMONWEALTH   vs.   DEMOND CHATMAN.



       Suffolk.      December 11, 2015. - March 16, 2016.

   Present:   Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.


Homicide. Practice, Criminal, New trial, Competency to stand
     trial, Capital case. Evidence, Competency. Due Process of
     Law, Competency to stand trial.



     Indictment found and returned in the Superior Court
Department on June 5, 2000.

     After review by this court, 466 Mass. 327 (2013), a motion
for a new trial was heard by Barbara J. Rouse, J.


     Edward L. Hayden for the defendant.
     Cailin M. Campbell, Assistant District Attorney (Mark T.
Lee, Assistant District Attorney, with her) for the
Commonwealth.


    CORDY, J.   On February 10, 2000, police responded to a

telephone call made by the defendant, Demond Chatman, reporting

that his mother, the victim, had been shot.    The defendant

directed officers to the home of the victim's aunt, where the
                                                                    2


defendant was living.     The police found the victim's body in the

aunt's bedroom.

     On January 24, 2002, a jury returned a guilty verdict

against the defendant on the charge of murder in the first

degree.   The defendant appealed, and, in May, 2008, during the

pendency of that appeal, the defendant filed a motion for a new

trial on the ground that he had not been competent to stand

trial.    The motion judge, who was also the trial judge, denied

the motion in October, 2011, after a nonevidentiary hearing.

The defendant appealed.

     In September, 2013, we reversed the denial of the motion

for a new trial and remanded the case for an evidentiary hearing

consistent with a newly established burden of proof on

defendants who, postverdict, seek a new trial on the basis of

incompetency when the issue was not raised or considered at the

time of, or prior to, trial.    See Commonwealth v. Chatman, 466

Mass. 327, 335-336, 339 (2013).    In November, 2014, after four

days of evidentiary hearings, the motion judge again denied the

defendant's motion.

     Now before us for the second time, the defendant combines

his direct appeal from his conviction with his challenge to the

denial of his motion for a new trial.1    He also requests relief


     1
       The defendant's appeal, filed on December 10, 2014, was
not timely, as it came more than thirty days after the November
                                                                      3


pursuant to our authority under G. L. c. 278, § 33E.     As we

explain below, our review of the entire record discloses no

basis on which to grant relief.    We therefore affirm the

defendant's conviction and the denial of his motion for a new

trial.

    1.   Background.   a.   The trial.   We summarize the essential

facts presented at trial, most of which are set forth in our

decision in Chatman, 466 Mass. at 328-330.     The defendant had a

hostile relationship with his mother, the victim.    On February

10, 2000, at 2:30 P.M., the defendant telephoned 911 to report

that his mother had been shot.    Earlier that day, between 11

A.M. and noon, the defendant had told the aunt that he was going

to "work out" at Franklin Park.     He also had asked her where she

kept the mop and bucket, which he wanted to use to clean his

room on his return.

    The Commonwealth presented a circumstantial case against

the defendant at trial.     A pathologist testified that, based on

the rigidity of the victim's body at the time it was found,

death occurred between 8:30 A.M. and 12:30 P.M.     There was

evidence that the body had been moved to the aunt's bedroom,

where the police first viewed it, including deoxyribonucleic



5, 2014, order denying the motion. See Mass. R. A. P. 4 (b), as
amended, 431 Mass. 1601 (2000). However, we will consider the
merits of the appeal pursuant to our authority under G. L.
c. 278, § 33E.
                                                                    4


acid (DNA) testing that showed bloodstains belonging to the

victim in the hallway, the bathroom, and the kitchen; in the

defendant's bedroom, the defendant had left a bloody

fingerprint.    Further DNA testing indicated that blood found on

the defendant's clothing and sneakers matched that of the

victim.   Bloody footprints were found in the bathroom, and the

evidence indicated that washcloths had been used to soak up some

of the blood.

     The defendant sought to rebut the evidence offered by the

Commonwealth, and unsuccessfully presented an alibi defense

tending to show that he was at Franklin Park at the time of the

victim's death.

     b.   The defendant's competency at trial.   The issue of

competency to stand trial was first raised six years after the

trial in the defendant's May, 2008, motion for a new trial.

Chatman, 466 Mass. at 327-328, 335-336.

     At the evidentiary hearing in 2014, the defendant called

ten witnesses in support of his position:    Ray Walden, Dr. Mark

Hanson,2 and Patricia Hilliard,3 who treated the defendant during



     2
       In 1991, Dr. Mark Hanson diagnosed the defendant with a
paranoid disorder. The disorder manifested itself in
misperceived threats everywhere around the defendant, including
among those people closest to him. Hanson reported that the
defendant was pleasant and polite. Hanson did not offer an
opinion as to the defendant's competency at the time of trial.
                                                                   5


his early teens and into his high school years; trial counsel,

John Bonistalli; Sharon Church, who was co-counsel at the trial;

and Doctors Marion Smith, Joseph Grillo,4 Charles Drebing, Robert

H. Joss, and Naomi Leavitt, mental health professionals who were

responsible for either treating or diagnosing the defendant

after trial.5

     Trial counsel Bonistalli testified that he began

representing the defendant in 2000, and that he settled on an

alibi defense based on his meetings with the defendant and his

review of the police records.   The defendant insisted that he

did not commit the crime, so Bonistalli's reasonable doubt

     3
       Starting in 1992 and lasting until 1999-2000, Patricia
Hilliard met with the defendant most days after school as part
of the Career and Life United in Boston. While the defendant
never told Hilliard about his diagnosed mental illness, she
perceived the mental health issues with which the defendant was
afflicted. Hilliard described her relationship with the
defendant as very warm. They communicated about his academic
and career goals, in which she testified he was very much
invested. Hilliard did not offer an opinion as to the
defendant's competency at the time of trial.
     4
       Dr. Joseph Grillo, a clinical psychologist, met with the
defendant in February or March, 2002, while he was in prison.
The defendant reported auditory hallucinations, depression, and
anxiety. Dr. Grillo noted that the defendant was having trouble
getting used to the fact that he might be in jail for the rest
of his life. Dr. Grillo did not offer an opinion as to the
defendant's competency at the time of trial.
     5
       The parties stipulated as to the testimony of certain
individuals associated with the defendant who offered views of
his mental well-being. Having reviewed those stipulations, we
conclude that the information universally does not pertain to
the trial time period, and is therefore not relevant to our
analysis.
                                                                    6


defense relied on the defendant's statements and his assistance

in reviewing the facts to establish an alibi.   The defendant did

not report any of his mental health history to Bonistalli, and

Bonistalli did not notice anything to suggest that the defendant

was impaired by some mental illness.   Bonistalli testified that

he had the impression that he was communicating with the

defendant, and that the defendant understood what Bonistalli was

talking about and was aware of the charges pending against him

and the significance of the trial.   Bonistalli did not recall

any significant participation from the defendant during the

trial itself.

     Co-counsel Church's testimony related to about a two-week

period, as she joined the defense team just a week before trial.

Church testified that, in conversations with Bonistalli, the

defendant insisted he did not commit the crime, but was instead

at Franklin Park.   The defendant also went on "tangents."

During trial, the defendant sat silently and listened.   Church

concluded that the defendant did not actively assist in the

preparation of the case, but did not offer an opinion as to the

defendant's competency to do so.6




     6
       The motion judge concluded that Sharon Church's testimony
was "of little value." The defendant argues this was an abuse
of discretion. We discern no error, given Church's minimal
involvement with the defendant.
                                                                    7


      Also admitted in evidence were reports written by licensed

medical health counsellors Darren Sandler, who, on January 25

and 26, the two days following the defendant's conviction,

interviewed the defendant at Massachusetts Correctional

Institution (M.C.I.), Concord; and Carrie Holowecki, who

evaluated the defendant at M.C.I., Souza-Baranowski on January

30.   Sandler indicated that the defendant presented as "calm,"

"cooperative," and "euthymic," while Holowecki reported that,

though "nervous," the defendant was "alert," "oriented," and

"logical," and had "good eye contact."   Sandler reported that

the defendant had many legal questions regarding his appeal and

was in "shock" over his life sentence, remarking that it was

"unbelievable."   Neither noted any concern over any mental

health issues until February 13, 2002, when Holowecki, in her

second evaluation of the defendant, recorded that the defendant

was experiencing "some paranoia" but remained "alert,"

"oriented," and "cooperative."

      Dr. Smith, a psychiatrist, testified that she evaluated the

defendant on February 20, 2002.   Smith eventually diagnosed the

defendant with schizoaffective disorder, and she was concerned

that the symptoms with which the defendant presented existed

prior to his incarceration.   Smith did not offer an opinion as

to the defendant's competency at the time of trial.
                                                                     8


     The defendant hired Dr. Joss, a forensic psychologist, in

connection with the motion for a new trial.    Joss testified that

he met with the defendant, in connection with his initial

evaluation, on three occasions, in March and December, 2005, and

February, 2006, and interviewed the defendant by telephone in

January, 2006.    He also reviewed records of the case dating back

to the 1970s.    Aside from the defendant, Joss conducted two

other telephone interviews:    first with Ray Walden, an

independent clinical social worker who had diagnosed the

defendant with paranoid personality disorder at the age of

twelve or thirteen;7 and second with Dr. Prudence Baxter, a

forensic psychiatrist with whom Bonistalli had spoken briefly

about the possibility of a criminal responsibility defense prior

to trial.8   In addition, Joss consulted with Dr. Drebing, who, at

Joss's request, had conducted a neuropsychological evaluation of

the defendant in 2005 and had diagnosed him with a "psychotic

spectrum disorder, such as possibly a delusional disorder,




     7
       Ray Walden testified that the diagnosed paranoia did not
prevent him from communicating with the defendant. Walden did
not offer an opinion as to the defendant's competency at the
time of trial.
     8
       John Bonistalli, after speaking with Baxter, concluded
that such a defense was not tenable because, among other things,
the defendant insisted he had not committed the crime.
                                                                    9


schizoaffective disorder, or a psychosis not otherwise

specifi[ed]."9

     Dr. Joss, who had submitted an affidavit in 2008 based on

the foregoing evidence, further testified that his opinion at

the time of the affidavit and at the time of the hearing, was

that the defendant "lacked competence to stand trial" at the

time of trial and had problems "in his ability to rationally

understand the proceedings and . . . [to] rationally . . .

assist counsel."   He also admitted that, in reaching this

conclusion, he had not spoken to Bonistalli or Church.   Joss

eventually spoke to Bonistalli for fifteen minutes on the

telephone on March 31, 2014, the day before testifying at the

evidentiary hearing.    Joss was the only mental health expert to

offer an opinion regarding whether the defendant was competent

at the relevant time.

     The period between the May, 2008, filing of the motion for

a new trial and October, 2011, when the motion judge first

denied the motion without a hearing, is noteworthy in that the

defendant was evaluated twice, pursuant to court orders, for

competency to participate in the motion hearing.   Dr. Leavitt

testified that she conducted both evaluations, the first of


     9
       Dr. Drebing also testified that the defendant's
intelligence quotient (IQ) "falls in the low average to
borderline retarded range." Drebing did not offer an opinion as
to the defendant's competency at the time of trial.
                                                                    10


which was prompted by and occurred after the defendant had an

outburst in court.   Both evaluations focused specifically on

competency as to the motion (and not the trial) period.

Leavitt, in her initial evaluation, which was conducted to

determine whether the defendant was competent to recommence the

proceedings on the first motion for a new trial, presented an

equivocal opinion as to the defendant's competency:   the

defendant had an adequate understanding of the proceedings and

ability to make reasoned decisions; however, his ability to work

meaningfully with counsel was compromised due to his lack of

focus and social impediments.   Specifically, the defendant did

not trust appellate counsel.    Therefore, Leavitt concluded, the

defendant was competent to participate in the motion hearing

only so long as he did not have to testify or appear in court.

    Because the first evaluation did not result in a firm

opinion as to the defendant's competency, Leavitt conducted a

second evaluation in December, 2010, after the defendant had

begun taking medication.   In that evaluation, Leavitt opined

that the defendant was competent to participate in the motion

hearing.   The defendant's first motion for a new trial was

denied, and we reversed for an evidentiary hearing.    Chatman,

466 Mass. at 339.

    In denying the defendant's motion for a new trial on

remand, the judge discredited Dr. Joss's opinion at the
                                                                   11


evidentiary hearing as having no factual underpinnings.

Although the judge acknowledged that the defendant suffered from

a mental illness, which she concluded "waxed and waned at

various times throughout his life," she determined that "[a]

defendant may have a mental illness or condition[ and] still be

competent to stand trial."

    The defendant claims it was an abuse of discretion to deny

the motion for a new trial and to discredit Joss's testimony.

We disagree.

    2.   Discussion.   The only argument the defendant raises in

this combined appeal from his conviction and from the denial of

his motion for a new trial is that the motion for a new trial

was wrongly denied.

    "The trial judge . . . may grant a new trial at any time if

it appears that justice may not have been done."   Mass. R. Crim.

P. 30(b), as appearing in 435 Mass. 1501 (2001).   The burden

rests on the moving party to prove the facts on which he or she

relies in support of the motion.   See Chatman, 466 Mass. at 333.

The judge may rely on her knowledge of the trial in reaching a

conclusion regarding the motion for a new trial.   Commonwealth

v. Grace, 370 Mass. 746, 752-753 (1976).

    "When this court reviews a defendant's appeal from the

denial of a motion for a new trial in conjunction with his

direct appeal from an underlying conviction of murder . . ., we
                                                                     12


review both under G. L. c. 278, § 33E" (citation omitted).

Commonwealth v. Jackson, 471 Mass. 262, 266 (2015).     That is to

say, "we review the denial of that motion to determine if the

judge committed an abuse of discretion or other error of law

and, if so, whether such error created a substantial likelihood

of a miscarriage of justice."     Chatman, 466 Mass. at 333.    An

abuse of discretion exists when the motion judge made "a clear

error of judgment in weighing the factors relevant to the

decision, . . . such that the decision falls outside the range

of reasonable alternatives" (citation and quotations omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).     Our

review "extends special deference to the action of a motion

judge who was also the trial judge."     Commonwealth v. Waters,

410 Mass. 224, 231 (1991), quoting Commonwealth v. Grace, 397

Mass. 303, 307 (1986).

    a.    Competency.    Under both the Fourteenth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights, "[i]t has long been accepted that a

person whose mental condition is such that he [or she] lacks the

capacity to understand the nature and object of the proceedings

against him [or her], to consult with counsel, and to assist in

preparing his [or her] defense may not be subjected to a trial"

(citation omitted).     Commonwealth v. Brown, 449 Mass. 747, 759

(2007).   See Medina v. California, 505 U.S. 437, 439 (1992) ("It
                                                                  13


is well established that the Due Process Clause of the

Fourteenth Amendment prohibits the criminal prosecution of a

defendant who is not competent to stand trial").

    With the present case, we have our first opportunity to

review a motion judge's interpretation of the Chatman test.

Therein, we articulated a new framework appropriate for

evaluating a defendant's competency postverdict where the issue

had not been raised at trial.    Chatman, supra at 335-336.   Like

the traditional competency test, the hallmark of a postverdict

competency inquiry is the defendant's "functional abilities,"

Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004), as opposed

to "the presence or absence of any particular psychiatric

diagnosis."   Id.   To determine if a criminal defendant is

competent, we look to (1) whether the defendant has "sufficient

present ability to consult with his [or her counsel] with a

reasonable degree of rational understanding," and (2) whether he

or she has "a rational as well as factual understanding of the

proceedings" (citation omitted).    Commonwealth v. Bynum Harris,

468 Mass. 429, 443 (2014).

    The newly articulated test differs from the traditional

competency proceeding not in substance but in burden of proof.

If the issue is raised at trial, the Commonwealth would bear the

burden of establishing competence by a preponderance of the

evidence.   See Commonwealth v. Hilton, 450 Mass. 173, 179
                                                                   14


(2007).   The postverdict test, on the other hand, requires that

the defendant establish "by a preponderance of the evidence that

the Commonwealth would not have prevailed had the issue been

raised at trial," Chatman, 466 Mass. at 336, meaning that the

defendant bears the burden of establishing that, had the issue

been raised before or during trial, the Commonwealth could not

have proved either the first or the second prong of the

competency test.   See id.   See also Bynum Harris, supra at 443.

The defendant, therefore, need not make a showing that he was

incompetent; instead, the defendant may satisfy his or her

burden by showing "that the weight of the evidence of competence

and the weight of the evidence of incompetence are in

equipoise."   Chatman, supra at 336, n.7.

    Because a postverdict motion requires a retrospective

determination of the defendant's competency, "the weighing

process must necessarily place greater emphasis on evidence

derived from knowledge contemporaneous with the trial."    United

States v. Makris, 535 F.2d 899, 907 (5th Cir. 1976), cert.

denied, 430 U.S. 954 (1977).   For that reason, when the

postverdict motion is heard by the same judge as presided over

the trial, the "judge's determination of competency is entitled

to substantial deference 'because the judge had the opportunity

to . . . evaluate the defendant personally.'"   Brown, 449 Mass.

at 759, quoting Commonwealth v. Prater, 420 Mass. 569, 574
                                                                    15


(1995).   The presence or absence of a mental illness is

informative on the question of competency, but not dispositive.

See Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).

    i.    Competency -- first prong.   In determining whether the

defendant had a present ability to consult with his lawyer with

a degree of rational understanding, we look to whether the

defendant has the capacity to communicate and cooperate

effectively.   See Commonwealth v. Crowley, 393 Mass. 393, 399

(1984).   Specifically, we consider whether a "defendant's mental

. . . condition . . . prevented counsel from developing a

defense [and] . . . whether the defendant understood [counsel's]

explanations of that defense or [counsel's] assessment of the

risks of trial."   Goodreau, 442 Mass. at 353.

    In addition to testimony at the evidentiary hearing, the

record is replete with evidence regarding the undisputed

proposition that the defendant has, since childhood, suffered

from a mental illness.   The testimony, affidavits, assessments,

and evaluations paint a picture of an individual whose mental

issues have affected his ability to socialize and acclimate to

his community.

    However, while the defendant's mental illness undisputedly

has existed since his youth, the symptoms he shows and his

interactions with people have varied, or, as the motion judge

put it, "waxed and waned."   At times it is clear to those around
                                                                    16


him that the defendant is suffering from a mental illness, while

at other times he presents as calm, engaged, and communicative.

Moreover, there is no evidence tending to equate the defendant's

mental illness with an inability to communicate.   In fact, the

testimony indicates the opposite:   doctors and mental health

professionals alike have indicated that, whether or not the

defendant was on medication at the time, and whether or not the

defendant disclosed his history of mental illness, he was able

to communicate and exhibited an understanding of his condition.

In any event, competency and the defendant's ability to

communicate and cooperate is a time period-specific inquiry, and

our analysis must start with what little evidence we have about

the defendant's mental state around the trial period.

       We first consider the testimony of trial counsel, as it

"may . . . provide relevant evidence as to the defendant's

ability to understand the nature of the case against him and his

ability to assist in the defense, as well as how the defendant

helped shape the defense, if at all."    Chatman, 466 Mass. at

339.    Because of the time-determinative nature of our inquiry,

trial counsel's testimony is critical in either substantiating

or contradicting a postverdict competency challenge.

       Bonistalli testified that he had met with the defendant on

several occasions and had spoken with him about the police

reports, about what occurred on the day when the defendant's
                                                                17


mother was killed, and about the factual pieces required to

proffer an alibi defense.10   He saw no indications that the

defendant's condition resulted in an inability to communicate or

cooperate with him as trial counsel.

     The defendant presents Dr. Joss's testimony to establish

that the defendant could not communicate with Bonistalli

rationally.   Joss pointed to several of the defendant's

statements (made years after the trial period) to establish that

the defendant did not trust Bonistalli.   For instance, the

defendant indicated he believed Bonistalli may have been working

with the prosecutor, and therefore could not be trusted.

     This testimony presents several problems.   First, the only

time-relevant statements tending to show that the defendant's

paranoia caused him not to trust his trial attorney are those of

the defendant.   In the past, we have indicated that a motion

judge is entitled, in the competency context, to discredit a




     10
       During his testimony, it became apparent that
Bonistalli's recollection of his representation of the defendant
was exhausted as to several important issues. For instance, he
did not recall whether he had spoken to the defendant about a
possible criminal responsibility defense, or the extent to which
they discussed the forensic evidence against the defendant.
This reflects another problem with Dr. Joss's decision not to
speak to Bonistalli until 2014; had he considered evidence of
trial counsel's representation of the defendant when he began
his evaluations, it is possible we would have had a more robust
record as to the defendant's participation before and during
trial.
                                                                  18


defendant's own self-serving statements.     See Goodreau, 442

Mass. at 351.

    Second, and more importantly, other parts of the record

belie the defendant's assertions, and therefore Dr. Joss's

testimony.    Dr. Leavitt included in her report that the

defendant did not have trust issues with his trial attorney, and

that his trial attorney gave him "the information straight up."

Joss even noted in his evaluation the defendant's statement that

"[he] trusted [Bonistalli] to do his job."

    Third, the purported link between the defendant's illness

and his inability to communicate with trial counsel is

contradicted by the findings of mental health experts before and

immediately after trial.   Both Walden and Hilliard, who met with

the defendant in his youth, reported that the defendant's mental

illness had not impeded their communication or the defendant's

comprehension of their interactions.    Reports written by

licensed medical health counselors at M.C.I., Concord and

M.C.I., Souza-Baranowski days and weeks after the defendant's

arrest indicated that the defendant was able to understood and

discuss the ramifications of the guilty verdict against him.

    Fourth, Bonistalli's testimony and the judge's viewing of

the defendant's behavior at trial contradict the defendant's

statements.   See Commonwealth v. DeMinico, 408 Mass. 230, 236

(1990), quoting Commonwealth v. Hill, 375 Mass. 50, 58 (1978)
                                                                   19


("defendant's demeanor at trial and response to questioning by

the judge . . . [are] relevant to a decision on the merits of

the competency issue").   Because the trial judge never raised

the issue of competency, we can infer that the defendant's

behavior during trial was not so outside the ordinary as to

raise a doubt about his competency.11

     The defendant contends that a symptom of his mental illness

was that the illness operated to conceal itself from Bonistalli

at trial, which alone indicates a lack of competency.      That is,

the argument goes, that it would have been irrational to conceal

a history of mental health issues from counsel when facing

charges of murder in the first degree; therefore, the defendant

must not rationally have chosen to conceal his mental health

history but instead did so because of his mental illness.

     This argument finds no support in the record.   The

defendant has, at various times, either disclosed his mental

health history -- or chosen not to disclose it -- to multiple

individuals, both those whom he purportedly trusted and those he

had just met.   For instance, the defendant never told Hilliard

about his prior mental health issues, but disclosed them to Dr.




     11
       If there is a sufficient reason to doubt the defendant's
competency, the judge must raise it sua sponte and hold a
hearing. See Commonwealth v. Hill, 375 Mass. 50, 54 (1978),
quoting Commonwealth v. Vailes, 360 Mass. 522, 524 (1971).
                                                                  20


Leavitt.12   Bonistalli was never made aware of the defendant's

diagnoses or treatment, but the defendant related them to

appellate counsel.   We therefore cannot infer from the record

that the decision not to disclose a history of mental illness to

his trial counsel was made due to a symptom of such illness as

opposed to a rational decision by the defendant.   Moreover, the

fact that a defendant may not advance the most helpful defense

does not necessarily equate with incompetence to stand trial.

See Commonwealth v. Blackstone, 19 Mass. App. Ct. 209, 211

(1985) ("defendant's refusal to admit to his own mental illness

and to employ it in his defense is not necessarily a

manifestation of the mental illness itself.   The world is full

of people who do not own up to their limitations, often with

remarkable success").

     Even if the motion judge were to have credited Joss's

testimony that the defendant had a mental illness that was in

full effect during the trial period, this alone would not be

sufficient to persuade us that the defendant has met his burden.

One can both have a mental disease or deficiency and still be

competent to stand trial; the two are not mutually exclusive.

See Robbins, 431 Mass. at 448 ("The defendant's argument

confuses the presence of mental illness with lack of competence

     12
       The defendant also told Sandler, Holowecki, and Dr. Smith
that he had been prescribed an antipsychotic medication as a
child.
                                                                      21


to stand trial").   The same is true about a defendant with a low

intelligence quotient.   See Prater, 420 Mass. at 574-575.       We

agree with the motion judge that the evidence tends to show that

the defendant cooperated and communicated with his attorney,

highlighted by the fact that, according to Bonistalli,

testifying as to his contemporaneous interactions with the

defendant, the defendant "insisted" that he did not kill the

victim and that Bonistalli pursue an alibi defense.     It was

therefore not an abuse of discretion for the judge to conclude

that the defendant did not meet his burden on the first prong of

the competency test.

    ii.   Competency -- second prong.     We are likewise

unpersuaded by the defendant's assertion that he did not have a

rational understanding of the proceedings against him.      This

second prong considers whether the defendant understood the

crime of which he or she "was accused, who the important people

[were] in the court room and what their roles [were], [and] what

[the consequences would be] if he [or she] [was] found guilty."

Bynum Harris, 468 Mass. at 443, quoting Vuthy Seng v.

Commonwealth, 445 Mass. 536, 546 (2005), S.C., 456 Mass. 490

(2010).   The defendant would not sufficiently understand the

proceedings "if his mental condition preclude[d] him from

perceiving accurately, interpreting, and/or responding

appropriately to the world around him."     Lafferty v. Cook, 949
                                                                   22


F.2d 1546, 1551 (10th Cir. 1991).   The test is flexible enough

to accommodate a defendant with a mental illness, as it "is

satisfied upon a showing that the defendant possesse[d] at least

a 'modicum' of rational understanding."    Doe, Sex Offender

Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.

App. Ct. 610, 613, n.4 (2012), quoting Blackstone, 19 Mass. App.

Ct. at 211.

    The only evidence tending to establish the defendant's

level of understanding of the proceedings at trial, aside from

Bonistalli's testimony, comes from Dr. Joss's interviews that

occurred three and four years after the defendant's conviction.

Joss put a great emphasis on the defendant's purported

misunderstanding of the key players.   For instance, the

defendant thought Bonistalli had a "cop look," and may therefore

have been working with the prosecutor.    The defendant reported

that he believed that Bonistalli, who is white, would have an

advantage at trial over the prosecutor, who was Asian.     The

defendant told Joss that the judge was always on the

prosecutor's side, and that the judge "was making sad faces."

The defendant also indicated that the prosecutor had used his

peremptory strikes to take homosexuals and white women off the

jury.

    However, although purportedly concluding that the

defendant's illness precluded his having a rational
                                                                     23


understanding of the proceedings, Joss's testimony supports the

opposite conclusion -- that, in fact, the defendant did have a

rational understanding of the crime for which he was on trial,

the important people involved in his prosecution and defense, as

well as the consequences of a verdict against him.     Joss

admitted on cross-examination that the defendant could follow

what was going on at the trial in 2002:    he was aware that he

was on trial for murder; understood his attorney to be working

on his behalf; appreciated that the prosecutor was working

against him; knew it was the judge's role to be fair; and

recognized that the jury would reach the final verdict.       And,

looking back on the trial, the defendant knew that there had

been witnesses who testified against him and that he had been

found guilty.   As to the comments about the ethnicities of

Bonistalli and the prosecutor, Joss testified that such

statements were "consistent with [the defendant's] history of

racism," but not irrational.    In sum, Joss's testimony regarding

his findings presents a defendant who may have misconceived

portions of the proceedings due to preexisting prejudicial

stereotypes, but not one who could not rationally understand

those proceedings.

    Joss's testimony on cross-examination also undermined many

of his findings.     Dr. Joss either admitted that he had no basis

to corroborate or substantiate many of the defendant's
                                                                   24


purportedly irrational claims because he did not conduct

independent research, or conceded that the statements could

indeed have been rational.   For instance, Joss's credibility as

to the rationality of the defendant's statements is dubious in

that he could not comment on the prosecution's use of peremptory

strikes during jury selection because he had not spoken to

anyone present; he was unable to determine whether there was any

basis for the defendant's statement that Bonistalli had a "cop

look" because Joss had only spoken to Bonistalli on the

telephone and had never met him; and Joss admitted that he has,

in the past, told defense attorneys that they should not speak

to the prosecutor in front of the defendant if the defendant has

shown signs of paranoia, indicating that it is not unusual for a

defendant to worry about his attorney working with the

prosecution.   Taken together, these admissions indicate that the

defendant did indeed have some underlying misperceptions about

people based on their appearances, but that those misconceptions

alone were not enough to show that his rational understanding of

the proceedings was compromised.   It is more important in

establishing a "modicum" of rational understanding that the

defendant understands the role and function of the key players

and court mechanisms than it is that he put aside any lingering

bigotry.
                                                                   25


    We infer no support for Dr. Joss's opinion about the

defendant's competency at the time of trial from Dr. Leavitt's

first evaluation of the defendant for the motion for a new trial

proceeding.   We acknowledged in Chatman that Leavitt "made a

diagnosis of long-standing mental illness virtually identical to

that of Joss."   Chatman, 466 Mass. at 339.   However, we note a

distinct difference between Leavitt's findings and those of Joss

that affect our analysis of the defendant's competence at the

time of trial:   Leavitt was reviewing the defendant's competency

for a motion for a new trial hearing, and her findings were

therefore related to appellate counsel, as opposed to trial

counsel.   In reaching her conclusion that the defendant could

not contribute to his defense, Leavitt noted that the defendant

had difficulties believing his appellate attorney.   Leavitt also

included in her evaluation that the defendant did not report any

trust difficulties with his trial attorney, and that his trial

attorney gave him "the information straight up."   We cannot

conclude from this evaluation that the defendant's issues with

appellate counsel reflect similar problems during the course of

trial with trial counsel, or whether any later mental issues

could be due to the fact that, according to the defendant, his

"world came to an end" when he was sentenced.

    The defendant seems to argue that the Commonwealth's

failure to proffer evidence at the motion for a new trial
                                                                  26


indicates that its position is tenuous.   To be clear, the

Commonwealth bears no burden to establish that the defendant was

competent at the time of trial, and may rest on impeachment of

the defendant's arguments if it so chooses.   However, should the

Commonwealth eschew the opportunity to present argument or offer

the opinion of an expert, it does so at its own peril.

    We discern no error in the motion judge's conclusion that

the defendant did not meet his burden, or in her decision to

discredit Dr. Joss's opinion.   As noted, Joss, prior to reaching

his conclusion that the defendant was incompetent during the

critical time period leading up to and encompassing trial, did

not meet or consult with Bonistalli or Church.   See Goodreau,

442 Mass. at 354 ("When weighing the adequacy of the materials

submitted in support of a motion for a new trial, the judge may

take into account the suspicious failure to provide pertinent

information from an expected and available source").     It was not

unreasonable for the motion judge to conclude that, while Joss

is no doubt qualified to opine regarding the defendant's mental

illness and about his competence at the time of his interviews,

it was problematic that he reached the conclusion that the

defendant was unable meaningfully to consult with his attorney

or rationally to understand the proceedings at trial without

speaking to the only people who could offer insight into that

time period, aside from the defendant.
                                                                    27


    Because we agree that the defendant did not establish by a

preponderance of the evidence that the Commonwealth would not

have been able to meet its burden at a competency proceeding had

the issue been raised prior to or at trial, we affirm the denial

of the defendant's motion for a new trial.    As this was the only

issue raised by the defendant in his appeal from his convictions

and from the denial of his motion for a new trial, we will

proceed to our G. L. c. 278, § 33E, review.

    b.    Review under G. L. c. 278, § 33E.   We have conducted a

thorough review of the record, in accordance with G. L. c. 278,

§ 33E, and have determined that no basis exists which would

require us to remand the case, order a new trial, or to set

aside or reduce the jury's verdict of murder in the first

degree.   We therefore decline to exercise our authority.    The

judgment and the order denying the motion for a new trial are

affirmed.

                                    So ordered.
