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SJC-11569

                COMMONWEALTH   vs.   CRAIG MULGRAVE.



            Essex.     March 6, 2015. - July 13, 2015.

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


Homicide. Evidence, Spontaneous utterance, Expert opinion,
     Impeachment of credibility, Cumulative evidence, Relevancy
     and materiality. Witness, Expert, Impeachment. Mental
     Impairment. Practice, Criminal, Capital case, Instructions
     to jury.



     Indictment found and returned in the Superior Court
Department on April 2, 2010.

    The case was tried before David A. Lowy, J.


     Robert S. Sinsheimer (Lisa Parlagreco with him) for the
defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


    HINES, J.   In March, 2012, a Superior Court jury convicted

the defendant, Craig Mulgrave, of murder in the first degree on

the theory of extreme atrocity or cruelty in the stabbing death
                                                                     2


of his wife, Christina Mulgrave.1    On appeal the defendant

asserts that the judge erred in certain evidentiary rulings that

violated his right to due process under the United States

Constitution and the Massachusetts Declaration of Rights:

(1) admitting in evidence as an excited utterance a cellular

telephone text message sent by the victim; (2) granting the

Commonwealth leave to present general evidence that the

defendant made statements, which previously were suppressed, to

impeach proffered evidence that he was noncommunicative; and (3)

excluding the proffered testimony of a defense expert witness.

The defendant also argues error in the jury instructions on

diminished capacity.    We discern no error in the judge's

evidentiary rulings or instructions to the jury.     We decline to

exercise our authority pursuant to G. L. c. 278, § 33E, and

affirm the defendant's convictions.

     1.   Background.   a.   The Commonwealth's case.   The jury

could have found the following facts.     The defendant and the

victim were married in Jamaica in July, 2008.     The two had met

while the victim was on vacation in Jamaica, where the defendant

had lived.   In October, 2009, the defendant obtained a visa and

moved to Las Vegas, Nevada, to join the victim.     The couple

     1
       The Commonwealth also had proceeded under a theory of
deliberate premeditation, but the jury did not find the
defendant guilty under that theory.
                                                                      3


moved to Haverhill one or two months later, where they would be

closer to the victim's two children and her sister.

    The victim's sister and son testified that the defendant

was depressed and frustrated that he was unable to find

employment.   In February, 2010, the victim told her sister that

there were problems in the marriage and that she had asked the

defendant to go back to Jamaica, but he would not leave.       Two

letters were read in evidence, one from the victim to the

defendant and the other his response.    The victim's letter

expressed her difficulties with the marriage and asked the

defendant either to make the marriage work or to separate.      The

defendant responded by also expressing his unhappiness in the

marriage and telling her he felt "unhappy, depressed, without a

job, unemployed, dependent on [her] for everything."   The

defendant expressed his love for her and said that he wanted to

"make this right."

    On February 7, 2010, the day of the National Football

League's Super Bowl, the couple hosted the victim's family for

dinner at their apartment.    The victim's son, Evan McCain,

testified that the defendant left the house during the party and

went out walking "all day."   The next evening, the victim came

home to find the defendant unconscious and lying on the floor

with a string tied into a noose around his neck, a knife tucked

into the waistband of his pants, and a bottle of alcohol nearby.
                                                                        4


The victim, a nurse, took a photograph of the defendant but did

not call for medical care.   She sent Evan a text message, which

prompted him to come over about ten minutes later.   The victim

and Evan stood over the defendant talking for about ten minutes,

during which time the defendant never responded or acknowledged

their presence.   Evan testified that the defendant "drank a

bunch of liquor" that evening.   He left the defendant a

handwritten note expressing his disapproval.

    The following day, on February 9, the victim had an

interview at Lowell General Hospital and, thereafter, went to

her sister's house.   During this visit, the victim told her

sister about the incident the prior evening.   The sister asked

the victim to stay at the sister's home that evening.      The

victim, however, "was adamant about going home to handle her

business" and left at about 1 P.M. for the forty-minute drive to

her home.   Two hours later, at 3:03 P.M., the victim sent a text

message to Evan stating, "He is threatening to kill me I am

scared he said if I pick up the phone he will kill me."      Six

minutes after that, at 3:09 P.M., she telephoned 911 and

frantically reported that her husband was stabbing her.

    A sergeant with the Haverhill police department arrived at

the couple's apartment within two minutes of the 911 call.         As

the sergeant entered the walkway to the apartment building, he

heard a female screaming from one of the upstairs apartments.
                                                                    5


He ran up the stairs and entered the apartment on the left side

of the hallway.   A few seconds later, a man came out of the

apartment on the right side of the hallway.    The sergeant asked

him if he heard anything, and the man, later identified as the

defendant, responded, "It's in here.   I just killed my wife."

    The defendant was standing at the door to the apartment he

shared with the victim; he was covered in blood and holding a

knife.   The defendant complied with the sergeant's requests to

drop the knife and get down on the floor.     After the defendant

was handcuffed, the sergeant asked him, "Where is she?," and he

motioned toward the office in the front of the apartment.

    Inside the office, the victim was lying on her left side on

the floor in a pool of blood.   Emergency medical technicians

(EMTs) arrived and found the victim with a weak pulse and barely

breathing.   The first attempt to ventilate the victim was

unsuccessful because air from a breathing tube placed through

the victim's mouth escaped from a stab wound in her neck.      A

second tube was inserted directly into the stab wound and down

into the lungs.   As the EMTs continued to render aid to the

victim, they transported her to Merrimack Hospital, where she

was pronounced dead shortly after arrival.

    An autopsy revealed twelve stab wounds, twelve incise

wounds, and miscellaneous blunt force injuries.     Of the stab

wounds, nine were to her torso, one to her left arm, one to her
                                                                    6


right arm, and one to her right shin.    Three of the stab wounds

penetrated her lungs, two penetrated her liver, and a stab wound

in her neck penetrated her trachea.     The medical examiner who

performed the autopsy testified that the specific cause of death

was blood loss and puncture injuries to the lung and trachea,

which inhibited the body's ability to oxygenate.     The crime

scene analyst who inspected the apartment testified that the

location of the blood inside the office demonstrated that the

victim was upright when some of the stab wounds were inflicted

and was lying down or very low to the ground when other stab

wounds were inflicted.   The knife that the defendant was holding

when the sergeant arrived had the victim's blood on it and the

defendant's fingerprint on the handle.

    The defendant was arrested at the scene and taken to the

Haverhill police station.   He was wearing the same clothes as

during the incident the prior evening and the string was still

tied around his neck as a noose.   The patrolman who transported

the defendant testified that the defendant had no alcohol odor,

no difficulty walking, and no difficulty getting into or out of

the cruiser.   A bottle of rum, approximately two-thirds full,

and several prescription medication bottles containing pills

were seized from the apartment after the stabbing.

    b.   The defendant's case.   The defendant conceded guilt as

to murder in the second degree but argued that depression
                                                                    7


rendered him incapable of the elevated mental state required for

murder in the first degree.   He introduced the testimony of

three mental health experts and his cousin.   The experts all had

experience working with depression and explained the various

stressors that could worsen depression symptoms.    Specifically,

the experts noted that unemployment, cultural transition, and

breakdown of a marriage can intensify depression.   The

defendant's cousin testified that she talked to him about once a

week while he was in Las Vegas, but hardly at all once he was in

Massachusetts.   She stated that it was a big opportunity for the

defendant to go to the United States and that he would have

looked like a failure if he had returned to Jamaica.

    The defendant's first expert, Ronald P. Winfield, a

psychiatrist, did not interview the defendant but explained that

depression is an imbalance in brain chemicals that can cause

unusual brain function, especially when triggered by stressors.

Two additional experts interviewed the defendant multiple times

and diagnosed him with a major depressive disorder at the time

of the stabbing.   Both experts, Robert H. Joss, a forensic

psychologist, and Elizabeth Davis, a psychiatrist, opined that

the defendant lacked the capacity to deliberately premeditate or

to act with extreme atrocity or cruelty because of his

depression.
                                                                    8


     Doctors Joss and Davis reviewed the defendant's medical

records from before the stabbing, which showed that the

defendant was diagnosed on December 22, 2009, with depression

with anxiety, and was prescribed Celexa, an antidepressant.      The

record of the appointment references tearfulness, suicidal

ideation, and anxiety on the part of the defendant.   Based on

the number of pills remaining in the Celexa bottle found in the

apartment, the defendant was not taking this medication as

directed, rendering the drug ineffective in ameliorating his

symptoms.   During his interviews of the defendant, Dr. Joss

observed that the defendant appeared depressed, weary, and

without much energy.   Doctor Joss opined that the defendant was

not faking depression because his prearrest medical records were

consistent with his symptoms after the stabbing.

     Doctors Joss and Davis testified that they would have

considered immediate psychiatric hospitalization of the

defendant if they had found him in the state he was in the

evening before the stabbing.   The defendant told the experts

that, on the night before the stabbing, he consumed an excessive

amount of alcohol and ingested pills.2   Doctor Davis opined that

the defendant's actions on the night before the stabbing


     2
       These statements were not admitted for their truth but
only as information on which the experts based their opinions.
                                                                       9


indicated that he was in the "throes of making a suicide

attempt."

    c.      The Commonwealth's expert.   In rebuttal, the

Commonwealth called Martin Kelly, a psychiatrist who evaluated

the defendant and reviewed medical records, including the

reports from Drs. Joss and Davis.     Doctor Kelly opined that the

defendant did not suffer from any mental defect or disease at

the time of the stabbing; instead, he had situational or

reactive depression.    He described situational or reactive

depression as a psychological condition, not a mental disease.

He further explained that this condition is time limited and

occurs after some sort of loss, such as a breakup of a

relationship, unemployment, or cultural adjustment.

    d.      Excluded evidence.   Prior to trial, a motion judge

granted the defendant's motion to suppress statements made to

police shortly after booking.     The motion judge concluded that

the statements were made in violation of the Fifth Amendment to

the United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.     At trial, however, the defendant sought

to introduce evidence, through cross-examination of a police

officer, that he was silent and noncommunicative during booking

as a factor demonstrating diminished capacity.      The Commonwealth

argued that such testimony would open the door to allow the

suppressed statements to be admitted.     The trial judge noted
                                                                    10


that the purpose of the rebuttal would be to show the

defendant's capacity to answer questions, not the content or

truth of the statements, and indicated that he would be

inclined, if the defendant elicited such testimony, to allow the

Commonwealth to introduce evidence about the number of questions

asked and the defendant's manner and demeanor in answering the

questions.   The fact that the statements were made, but not the

content of the statements, would be admitted.   The defendant

declined to introduce the evidence in light of that ruling.

    The defendant also sought to introduce the testimony of a

fourth medical expert, William Alan Stuart, an emergency

medicine physician.   The defendant intended to have Dr. Stuart

testify to the effects of combining Celexa and alcohol and that

the defendant's actions the night before the stabbing

constituted a suicide attempt.   Further, this proposed testimony

would have included the witness's opinion that he too would have

commenced an involuntary commitment if he had been aware of the

events occurring the evening before the stabbing.

    After conducting a voir dire, the judge denied the

defendant's request to introduce testimony from this expert.

The judge excluded the testimony on the following grounds:    (1)

the proposed testimony was cumulative, as Dr. Davis already had

opined that the defendant made a suicide attempt; (2) the

proposed testimony had only limited relevancy, because the jury
                                                                      11


could infer that the defendant was suicidal without expert

testimony; (3) the jury likely would be confused as to the

relevant time frame (the night before the stabbing or the day of

the stabbing) in which to consider the defendant's mental state;

and (4) the testimony, to the extent that it focused on what

Evan and the victim should or should not have done on finding

the defendant on the evening before the stabbing, would cause

undue prejudice.

    2.    Discussion.   a.   Evidentiary issues.   i.   Text message.

The defendant argues that the judge erred in admitting the

content of the text message sent by the victim to her son

approximately six minutes before she telephoned 911.      The judge

reasoned that the written statement, although hearsay, was

admissible under the spontaneous utterance exception to the

hearsay rule.   Mass. G. Evid. § 803(2) (2015).     The defendant

objected to the admission of the text message, so we review for

prejudicial error.   Commonwealth v. Sleeper, 435 Mass. 581, 590

(2002).

    Under our rules, admissibility under the spontaneous

utterance exception requires that (1) "there is an occurrence or

event 'sufficiently startling to render inoperative the normal

reflective thought processes of the observer'"; and (2) the

statement was "a spontaneous reaction to the occurrence or event

and not the result of reflective thought."     Commonwealth v.
                                                                    12


Irene, 462 Mass. 600, 606-607, cert. denied, 133 S. Ct. 487

(2012), quoting Commonwealth v. Santiago, 437 Mass. 620, 623

(2002).   The defendant argues that the text message sent by the

victim fails to meet either requirement for admissibility.3    We

disagree and conclude that the judge committed no error in

admitting the victim's cellular telephone text message in

evidence.

     While Massachusetts appellate courts have yet to approve

admission of text messages or any other writing under the

spontaneous utterance exception to the hearsay rule, this

exception does not categorically exclude written statements from

its scope.   We have acknowledged that a written statement may be

considered a spontaneous utterance if it satisfies a heightened

indicia of reliability.   See Commonwealth v. DiMonte, 427 Mass.

233, 237-240 (1998).   There we explained that "[b]ecause a

writing is more suspect as a spontaneous exclamation than is an

oral statement, the circumstances of the writing would have to

include indicia of reliability even more persuasive than those

required for an oral statement before we could conclude that the

     3
       The defendant also argues that the message was not
sufficiently authenticated as being sent by the victim. In the
circumstances of this case, where the defendant did not contest
the authenticity of the text message during the trial, the
authenticity requirement was satisfied by Evan's testimony and
his cellular telephone records showing a message originating
from the victim at 3:03 P.M.
                                                                  13


writing qualified as a spontaneous exclamation."   Id. at 239.

The heightened indicia of reliability requirement, however, does

not impose an additional test in the spontaneous utterance

analysis.   Rather, it is intended only to ensure that a writing,

which generally is a product of reflection, meets the

spontaneity requirement.   Thus, although we examine a writing

more closely on the element of spontaneity, the analysis is the

same as for an oral statement.

     The first requirement, that there be an exciting event

giving rise to the exception, is clearly satisfied by the

statement itself, the 911 telephone call, and the victim's

condition approximately ten minutes later.4   See Commonwealth v.

Nunes, 430 Mass. 1, 4 (1999), citing Commonwealth v. Whelton,

428 Mass. 24, 27 (1998) ("The statement itself may be taken as

proof of the exciting event").   The victim stated in her text

message, "He is threatening to kill me I am scared he said if I

pick up the phone he will kill me."   Although the record


     4
       The defendant acknowledges that the content of the text
message statement itself satisfies this requirement, but
asserts, without citation to any cases, that the confrontation
clause of the Sixth Amendment to the United States Constitution
requires that there be additional evidence of the event besides
the statement. Regardless of whether the defendant's argument
has any basis in law, the occurrence of an exciting event having
very recently occurred was confirmed by the condition of the
victim and apartment when the police arrived minutes later. See
Commonwealth v. Whelton, 428 Mass. 24, 26-27 (1998).
                                                                  14


contains no further information about the events occurring at

that moment, it is established that six minutes later the victim

frantically telephoned 911 to report that her husband was

stabbing her and, only a few minutes after that, she was found

barely breathing and lying in a pool of blood.

    In determining the second element of spontaneity, we

consider the circumstances of the statement, including the

temporal relation between the event and the statement, and the

tone and manner of the declarant.    Commonwealth v. Simon, 456

Mass. 280, 296, cert. denied, 562 U.S. 874 (2010); Santiago, 437

Mass. at 623, 625; DiMonte, 427 Mass. at 239.    Because the

statement at issue here is a writing, we also consider whether

and to what extent the requisite spontaneity is compromised by

this method of communication.

    Here, the circumstances of the statement, although in the

form of a cellular telephone text message, are entirely

consistent with spontaneity.    As described above, the victim

telephoned 911 to report that the defendant was stabbing her six

minutes after the text message to her son reporting that the

defendant was "threatening to kill" her.    This sequence of

events closely resembles a scenario mentioned in DiMonte, 427

Mass. at 239, where we observed that a writing may be admissible

"when a victim is held hostage and is unable to communicate in
                                                                  15


any way other than writing or when a person's vocalization is

impaired" (footnote omitted).

     The circumstances under which the text message was sent

adequately compensate for the limitations inherent in a writing

and meet the spontaneity test.   Cellular telephone text messages

are a unique form of written communications in that they allow

for instant communication in much the same way as oral

communications.   The cellular technology that allows for the

sending and receiving of a text message instantly, often as a

substitute for oral expression, diminishes the concern about

spontaneity that might arise with other more deliberative modes

of written communication.   Further, the growth of cellular

telephones has made text messaging and other types of written

electronic statements ubiquitous forms of rapid communication.5

For a person proficient in the use of the cellular telephone

technology, sending a text message may involve no more effort

     5
       In Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md.
2007), a judge of the United States District Court for the
District of Maryland reviewed case law interpreting evidentiary
rules for application to electronic communications. The judge
concluded that electronically stored communications may be
admissible under the Federal rule governing spontaneous
utterances, Fed. R. Evid. § 803(2), noting the "prevalence of
electronic communication devices, and the fact that many are
portable and small, means that people always seem to have their
laptops, [personal digital assistants], and [cellular
telephones] with them, and available for use to send [electronic
mail messages] or text messages describing events as they are
happening." Id. at 569.
                                                                   16


than verbalizing a thought, feeling, or emotion in response to

an event.   A cellular telephone user may choose between verbal

and written communication without sacrificing immediacy in the

communication of the message.6   This opportunity for instant

communication by way of cellular telephone technology elevates

text messages, at least on the spontaneity scale, beyond the

level of an ordinary writing.    See DiMonte, 427 Mass. at 239.

Thus, we conclude that the spontaneity requirement is not

undermined in this case by the fact that the statement is a

writing in the form of a cellular telephone text message.

     Although the temporal relation requires no definite and

fixed limit of time for spontaneity, "the further the statement

from the event, the more difficult it becomes to determine

whether the statement is the result of reflection, influenced by

other factors."   DiMonte, 427 Mass. at 239, citing Commonwealth

v. McLaughlin, 364 Mass. 211, 223 (1973).   The rationale behind

the temporal relation is that statements made before the

     6
       More text messages are sent and received by cellular
telephone users than voice minutes are expended. According to a
Nielsen study conducted in 2012, ninety-four per cent of United
States consumers age sixteen years and older use a cellular
telephone, and the average United States cellular contract user
sent or received 764.2 text messages and used 644.1 voice
minutes per month. See The Nielsen Company, The Mobile
Consumer: A Global Snapshot 7, 19 (Feb. 2013), available at
http://www.nielsen.com/content/dam/corporate/uk/en/documents/Mob
ile-Consumer-Report-2013.pdf [http://perma.cc/VYX5-WCL8], citing
Nielsen Consumer Value Metrics (2012).
                                                                    17


declarant has time to "contrive and misrepresent" would be

admitted, while others made after the "exciting influence [has

lost] its sway" would be inadmissible.    McLaughlin, supra,

quoting 6 J. Wigmore, Evidence § 1750 (3d ed. 1940).    In this

case, the statement occurred within a reasonable temporal

proximity to the exciting event because the victim's subsequent

911 telephone call and death shortly thereafter demonstrate that

the event was in progress when she sent the text message.

    Likewise, the tone and manner of the declarant, as

evidenced by the writing itself, supports a determination that

this statement was spontaneous, and thus reliable.     See Simon,

456 Mass. at 296.    The message was one sentence without any

punctuation.   The message related only to the circumstances of

the threat to the victim's safety and her reaction (fear) to

that threat.   In contrast, the facsimile transmission in

DiMonte, 427 Mass. at 234 n.4, which we said was not

spontaneous, was much longer and related to arrangements for an

upcoming concert at which the victim was to sing in addition to

the prior assault.

    For all the reasons explained above, we are persuaded that

the circumstances of the statement, the tone and manner of the

statement and its timing, establish the second requirement of

the spontaneous utterance exception to the hearsay rule.     The

judge's decision to admit the statement was sound.
                                                                    18


     Last, statements admissible as spontaneous utterances must

also satisfy the confrontation clause of the Sixth Amendment to

the United States Constitution.    See Irene, 462 Mass. at 609.

"The confrontation clause bars the admission of testimonial out-

of-court statements by a witness who does not appear at trial

unless the witness is unavailable to testify and the defendant

had an earlier opportunity for cross-examination."    Id. at 617,

citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

"Whether a particular statement is 'testimonial' lies at the

core of this analysis."    Irene, supra, citing Davis v.

Washington, 547 U.S. 813, 823-824 (2006).    The defendant asserts

that the statement was testimonial in fact because the victim

did not ask for help or describe an earlier event and that she

instead intended to establish the identity of her potential

perpetrator.    We disagree with the defendant's characterization

of the statement.

     "A statement is testimonial in fact if 'a reasonable person

in the declarant's position would anticipate the statement's

being used against the accused in investigating and prosecuting

the crime.'"7   Simon, 456 Mass. at 297, quoting Commonwealth v.


     7
       Whether a statement is testimonial in fact is the second
step in determining whether a statement was testimonial.
Commonwealth v. Simon, 456 Mass. 280, 297, cert. denied, 562
U.S. 874 (2010). The statement was not testimonial per se,
which is the subject of the inquiry in the first step, because
                                                                  19


Gonsalves, 445 Mass. 1, 12-13 (2005), cert. denied, 548 U.S. 926

(2006). Although the victim did not explicitly ask for help, she

wrote, "He is threatening to kill me I am scared he said if I

pick up the phone he will kill me."   Further, she did not name

the defendant, a fact likely to be communicated by a declarant

attempting to establish her perpetrator's identity.   Rather, the

statement is more properly characterized as one made in the

context of an ongoing emergency for which the victim sought

assistance.   Thus, the judge did not err in admitting the text

message.

    ii.    Availability of suppressed statement for impeachment.

The defendant argues that the judge erred in ruling that the

Commonwealth would be permitted to rebut evidence of the

defendant's mental capacity insofar as it rested on the claim

that he was noncommunicative during booking and during his

receipt of Miranda and telephone rights.   Although the judge

explicitly ordered that the content of the statements would not

be admitted, he ruled that the Commonwealth would be allowed to

ask certain questions, such as, "Were there other questions

asked . . . [h]ow many other questions were asked . . . what was

his manner and demeanor in answering those questions and what

were the general areas of conversation."   The defendant argues


the statement was not made in a "formal or solemnized form" or
"in response to law enforcement interrogation." Id.
                                                                    20


that this ruling was error for two reasons:    (1) the statements

were involuntary and thus inadmissible for any reason; and (2)

even if the statements were allowed to impeach the defendant's

testimony, they could not be used to impeach his experts'

testimony.

     Both of these arguments are unavailing.    The trial judge,

after reviewing the transcript from the hearing on the motion to

suppress and the video recording of the interrogation, concluded

that the defendant's statements were voluntary because the

defendant did not appear to be under the influence of drugs or

alcohol, reported that he physically felt good, was tuned into

subtleties, and responded to the police officer directly on the

issues.8   The judge's conclusion is well supported by the record.

See Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001).

Accordingly, the rule cited by the defendant, that "any criminal

trial use against a defendant of his involuntary statement is a

denial of due process of law," is not applicable here (emphasis

in original).   Commonwealth v. Durand, 457 Mass. 574, 591-592

(2010), quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978).

     The defendant's argument fails for the additional reason

that the judge precluded the admission of the content of the


     8
       The motion judge, suppressing the statements on other
grounds, did not decide the issue of voluntariness.
                                                                  21


statements.   The judge ruled that only evidence of the

defendant's ability to communicate would be admitted and only

for the purpose of impeaching the defendant's claim that he was

noncommunicative in the aftermath of the killing.   Evidence of

the defendant's ability to answer questions, offered only to

rebut evidence of the defendant's noncommunicability, is not

barred by the Fifth or Fourteenth Amendment to the United States

Constitution, or by art. 12.9

     The defendant next argues that this ability to communicate,

as established by the existence of (the subsequently suppressed)

statements to the police, was not admissible to impeach his

expert witnesses even if such statements would have been

admissible against him.   The defendant's argument stems from the

limitations on the impeachment exception to the exclusionary

rule as set forth in James v. Illinois, 493 U.S. 307, 320

(1990).   The exclusionary rule bars the prosecution's use of

statements, even if voluntary, that were obtained in violation

of Miranda v. Arizona, 384 U.S. 436, 444 (1966), unless an

exception applies.   James, supra at 312, citing Harris v. New

York, 401 U.S. 222, 225 (1971), and Oregon v. Hass, 420 U.S.

     9
       The defendant's silence in response to Miranda warnings
and booking questions, sought at trial to demonstrate mental
impairment, was considered by the motion judge as evidence that
the defendant invoked his right to remain silent and was
accordingly used to support suppression.
                                                                    22


714, 722 (1975).   Under the impeachment exception, "prosecutors

[may] introduce illegally[10] obtained evidence for the limited

purpose of impeaching the credibility of the defendant's own

testimony."   James, supra at 312.   In James, the United States

Supreme Court declined to extend the impeachment exception to

allow impeachment of "all defense witnesses" because doing so

"would not further the truth-seeking value with equal force but

would appreciably undermine the deterrent effect of the

exclusionary rule."   Id. at 320.    We have yet to interpret the

meaning of "all defense witnesses," and we decline to do so now.

Suffice it to say, evidence that the defendant answered a number

of questions, without relating the content of the statements,

that is offered for the purpose of showing communicability is

not an impermissible use of illegally obtained statements and,

therefore, does not offend the rule in James.

     iii.   Exclusion of expert witness testimony.    The defendant

argues that the judge violated his right to present a defense

and call witnesses under the Sixth Amendment and under art. 12

by excluding the testimony of Dr. Stuart, whose testimony would

review the effects of combining Celexa and alcohol and was

     10
       The statements suppressed in James v. Illinois, 493 U.S.
307, 313 (1990), were obtained in violation of the Fourth
Amendment to the United States Constitution, not the Fifth
Amendment to the United States Constitution as applicable in
this case.
                                                                   23


proffered to show that the defendant's conduct the night before

the stabbing was a legitimate suicide attempt.   The judge

excluded the testimony as cumulative, of limited relevancy, and

unduly prejudicial, and because it could confuse the jury as to

the relevant time frame in which to consider the defendant's

mental state.   "[A] trial judge has the discretion to control

the scope of the examination of witnesses . . . and can exclude

witnesses whose testimony is cumulative, repetitive, or

confusing."   Commonwealth v. Boyarsky, 452 Mass. 700, 711

(2008), quoting Commonwealth v. Carroll, 439 Mass. 547, 552-553

(2003).   "In addition, questions of relevancy 'are entrusted to

the trial judge's discretion and will not be disturbed except

for palpable error.'"   Commonwealth v. Wilson, 427 Mass. 336,

349 (1998), quoting Commonwealth v. Azar, 32 Mass. App. Ct. 290,

300 (1992).

     Although Dr. Stuart was to be the only expert testifying

about the effects of Celexa and alcohol in combination, there

was no evidence about the quantity of alcohol or drugs ingested

at or near the time of the stabbing.11   While the expert intended


     11
       A defense expert witness testified that the defendant
told him he consumed an excessive amount of alcohol and took
pills on the evening before the stabbing, but these statements
were not admitted for their truth. The jury also heard evidence
that a bottle of rum two-thirds full and several prescription
bottles of pills were located in the apartment after the
stabbing.
                                                                     24


to testify about the drug and alcohol combination to demonstrate

that the defendant actually attempted suicide and not to show

that the combination directly affected his state of mind the day

of the stabbing, another expert had already testified that the

defendant's actions were a suicide attempt.    The judge did not

abuse his discretion in excluding Dr. Stuart's testimony.

     b.   Diminished capacity instruction.    The defendant argues

that the judge committed reversible error by failing to instruct

the jury that they could consider evidence of diminished

capacity as it related to the defendant's ability to act with

extreme atrocity or cruelty, as required by Commonwealth v.

Rutkowski, 459 Mass. 794, 798 (2011).   Instead of giving the

form of instruction approved in Commonwealth v. Gould, 380 Mass.

672, 686 n.16 (1980), as proposed by defense counsel, the judge

gave the model jury instruction.   See Model Jury Instructions on

Homicide 61-62 (1999).   The defendant's argument is unavailing

because the judge instructed the jury in accordance with

Rutkowski, supra.12   A judge is not required to give the precise



     12
       The relevant portion of the jury instructions are as
follows:

     "More particularly, you may consider any credible evidence
     of the defendant’s mental impairment, and/or the use of
     drugs, in determining whether the defendant deliberately
     premeditated the killing of the deceased, that is whether
     the defendant thought before he acted, and whether the
                                                                    25


instruction proposed by the defendant or as set forth in Gould.

See Commonwealth v. Szlachta, 463 Mass. 37, 48-49 (2012), citing

Commonwealth v. Sanders, 451 Mass. 290, 300 (2008), and

Commonwealth v. Oliveira, 445 Mass. 837, 848 (2006).    There was

no error.

    c.   Review under G. L. c. 278, § 33E.   We have reviewed the

entire record and see no reason to exercise our power under

G. L. c. 278, § 33E, to reduce the degree of guilt as requested

by the defendant or to grant other relief.

                                   Judgment affirmed.




    defendant reached the decision to kill after reflection, at
    least for a short period of time, and whether the defendant
    acted in a cruel or atrocious manner, in causing the death
    of the deceased" (emphases added).
