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SJC-11996

                  COMMONWEALTH   vs.   RICHARD LAWSON.



            Suffolk.    March 7, 2016. - October 28, 2016.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.1



Insanity. Mental Health. Evidence, Sanity, Inference,
     Presumptions and burden of proof, Argument by prosecutor.
     Practice, Criminal, Presumptions and burden of proof,
     Required finding, Argument by prosecutor.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on March 12, 2014.

     The case was heard by Michael J. Coyne, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Christopher DeMayo for the defendant.
     John P. Zanini, Assistant District Attorney, for the
Commonwealth.




     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                     2


    GANTS, C.J.    The defendant, after being told by Boston

police officers that he had an outstanding warrant, resisted

arrest and assaulted the officers.   At a jury-waived trial in

the Boston Municipal Court, the defendant offered a defense of

lack of criminal responsibility, and called a forensic

psychologist who described the defendant's lengthy mental health

history and opined that the defendant was not criminally

responsible at the time of the offense.   The Commonwealth did

not present expert evidence on the issue of criminal

responsibility in rebuttal but rather relied on the

circumstances surrounding the offense and cross-examination of

the defendant's expert to establish criminal responsibility.

The judge denied the defendant's motion for required findings of

not guilty by reason of lack of criminal responsibility and

found the defendant guilty on all charges.

    On appeal, the defendant contends that the judge must have

relied on the so-called "presumption of sanity" because, without

this presumption, the evidence did not support a finding of

criminal responsibility beyond a reasonable doubt.     We conclude

that the "presumption of sanity" is not truly a presumption but

rather an inference that the defendant is probably criminally

responsible because most people are criminally responsible for

their acts.   Where a defendant proffers a defense of lack of

criminal responsibility and there is some evidence that supports
                                                                     3


it, this inference, standing alone, cannot support a finding

that a defendant is criminally responsible beyond a reasonable

doubt.   Although the Commonwealth may not rely on "the

presumption of sanity" to establish criminal responsibility, the

Commonwealth need not offer expert testimony in every case and

may rely instead on the circumstances of the offense and all

that the defendant did and said before, during, and after the

offense to prove the defendant's criminal responsibility.

Applying the proper test, we hold that the evidence here was

sufficient to allow a reasonable finder of fact to conclude that

the defendant was criminally responsible at the time of the

offenses and, therefore, affirm the convictions.

    Background.    We recite the facts that could have been found

by the judge from the evidence at trial.    On March 11, 2014,

Boston police Officers Paul Hayward and John Mullen were on

routine patrol in full uniform in downtown Boston when Officer

Hayward spotted the defendant, whom the officer knew to have

outstanding warrants.    The officers got out of their vehicle and

approached the defendant, who was walking, talking, and laughing

with two other men.     As the officers approached, the defendant's

eyes widened, and he looked over his shoulder.     When Officer

Hayward blocked the defendant's path and told the defendant that

the officer needed to speak with him, the defendant asked the

officer to light his cigarette.    The officer declined, told the
                                                                       4


defendant that he had an outstanding warrant, and asked for

identification.   The defendant stepped back and reached his hand

down towards his pants pocket.    Officer Hayward put his hand on

the defendant's hand to prevent the defendant from reaching into

the pocket.   The defendant pushed Officer Hayward away.     Officer

Hayward then "took [the defendant] to the ground," and a

struggle ensued during which both officers attempted to restrain

the defendant and apply handcuffs.   During the struggle, Officer

Mullen inadvertently placed both cuffs on the same hand of the

defendant.    The defendant kicked Officer Mullen in the head

several times and flailed his handcuffed hand.    Eventually, they

were able to restrain the defendant.    Officer Hayward described

the defendant as being coherent but "absolutely manic" during

the struggle.

    The defendant was arrested and taken to the police station,

where he struggled with several other officers.    Later that day,

the defendant was taken to the Massachusetts General Hospital

for a mental status evaluation.    At the hospital, he was

described as paranoid, disheveled, and having "flight of ideas."

He was so agitated that he was given emergency antipsychotic

medication.

    After his arrest, the defendant appeared in the Quincy

Division of the District Court Department on an unrelated

matter.   A judge of that court ordered the defendant to be
                                                                   5


evaluated for his competency to stand trial, and the defendant

was sent to Bridgewater State Hospital (Bridgewater) for that

evaluation.

    At trial, in support of his defense of lack of criminal

responsibility, the defendant called a forensic psychologist at

Bridgewater to testify regarding the defendant's mental health

history and her opinion as to his criminal responsibility on the

day in question.   The doctor reported that the defendant has an

"extensive" mental health history, which has involved ten

admissions to Bridgewater, the first in 2000.    Some of those

admissions were the result of civil commitments; others resulted

from referrals from correctional institutions.    He was civilly

committed at Bridgewater at the time of trial.    The defendant

has received mental health diagnoses of a psychotic disorder not

otherwise specified, bipolar disorder, manic episodes with

psychotic features, a mood disorder not otherwise specified, and

schizoaffective disorder.   His current diagnosis is

schizoaffective disorder, bipolar type.    In the past, he has

been prescribed a combination of antipsychotic and mood-

stabilizing medications.    The defendant also has a history of

substance abuse.

    A month before the incident, the defendant had been in

custody at the Nashua Street jail, where he was taking

medications prescribed to manage his mental health symptoms.
                                                                    6


But on February 21, 2014, the defendant was transferred to the

Norfolk County Correctional Center, where his antipsychotic and

mood-stabilizing medications were discontinued.   The mood-

stabilizing medication was later prescribed, but the defendant

did not take it.   The defendant was then transferred to the

Middlesex County house of correction, where he was not

prescribed any medication, and from there he apparently was

released from custody.   Consequently, there was no record

indicating that the defendant had taken any medication from

February 21 until the incident on March 11.

     The doctor testified that when the defendant discontinues

medications, he decompensates quickly, and he would likely

become agitated, aggressive, impulsive, paranoid, and

delusional.   He also would likely hear voices, exhibit poor

insight, and exercise poor judgment.

     The doctor also described what the defendant had told her

about the incident.   He said that he was walking down the street

when someone wearing a yellow suit with a reflective emblem

approached him and asked, "What the fuck is your name?"2     He

thought the person could have been a street cleaner or a

security guard but did not think that the person was a police



     2
       The defendant recalled only one person approaching him; he
did not recall a second person being involved in the
altercation.
                                                                   7


officer.   He thought that the person was trying to torment him

and was going to take him back to jail.3

     The doctor opined that the defendant was likely manifesting

symptoms of schizoaffective disorder on the day of the incident,

including paranoid delusions.   She also opined that his actions

were driven by a distorted sense of reality caused by the

symptoms of his mental illness and that he could not conform his

conduct to the requirements of the law on the day of the

offense.

     On cross-examination, the doctor stated that her

conversations with the defendant occurred after she provided him

with a Lamb warning, see Commonwealth v. Lamb, 365 Mass. 265,

270 (1974), informing him that his statements would not be

confidential and could be used in court.4   She testified that she


     3
       The defendant's statements to the forensic psychologist
were hearsay and therefore admissible only for the limited
purpose of assessing the credibility of the doctor's opinion
regarding the defendant's criminal responsibility; they were not
admissible for the truth of the matters asserted. See
Commonwealth v. Brown, 449 Mass. 747, 768-769 (2007). See
generally Mass. G. Evid. § 801(d)(2) (2016) (party's out-of-
court statement is hearsay unless offered in evidence by
opposing party). However, neither party sought to limit the
admissibility of these statements, and the judge did not declare
that he would do so. Where otherwise inadmissible hearsay is
admitted without objection or request for a limiting
instruction, it may be considered by the finder of fact for all
purposes. See Commonwealth v. Washington, 449 Mass. 476, 487
(2007).
     4
       In Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), we
held that communications between an individual and a mental
                                                                    8


first encountered the defendant three weeks after his arrest;

she did not examine the defendant on the day of the offense.

The doctor reviewed the defendant's records from the

Massachusetts General Hospital regarding his examination there

on March 11 and 12, but did not review any subsequent medical

records before March 31, when the defendant was sent to

Bridgewater.   She acknowledged the defendant's history of

substance abuse and testified that he admitted to using cocaine

on the day of the incident.   The doctor concluded that the

defendant was not malingering, but she initially did not rule

out that possibility.    She also testified that the defendant has

been noncompliant with taking his medication in the past and has

been violent while hospitalized at Bridgewater even when he was

taking his medication.

    The prosecution did not offer any expert testimony in

rebuttal.   At the close of all the evidence, the defendant moved

for required findings of not guilty by reason of lack of

criminal responsibility, arguing that the evidence was

insufficient as a matter of law to prove beyond a reasonable

doubt that the defendant was criminally responsible at the time




health professional made during a court-ordered examination are
privileged pursuant to G. L. c. 233, § 20B, unless the
individual is informed that the communications would not be
privileged.
                                                                   9


of the offenses.5    The judge denied the motion and found the

defendant guilty on all counts:   two counts of assault and

battery on a public employee, in violation of G. L. c. 265,

§ 13D; one count of assault and battery by means of a dangerous

weapon (shod foot), in violation of G. L. c. 265, § 15A; one

count of assault by means of a dangerous weapon (handcuffs), in

violation of G. L. c. 265, § 15B;6 and one count of resisting

arrest, in violation of G. L. c. 268, § 32B.    The defendant

appealed, and we allowed his motion for direct appellate review.

     Discussion.    The defendant argues that the judge erred in

denying his motion for required findings of not guilty by reason

of lack of criminal responsibility.    He also contends that the

prosecutor made improper comments to the judge in arguing

against that motion.

     1.   Criminal responsibility.   Where a defendant asserts a

defense of lack of criminal responsibility and there is evidence

at trial that, viewed in the light most favorable to the

     5
       Although counsel moved for required findings of not
guilty, and did not specify that she was moving for required
findings of not guilty by reason of lack of criminal
responsibility, it is clear from the evidence at trial and the
content of her argument that her motion sought the latter
finding.
     6
       The complaint charged the defendant with assault and
battery with the handcuffs, but after the prosecution rested,
the judge ordered the complaint amended to allege the lesser
included offense of assault with the handcuffs because the
evidence showed that the defendant "flailed" the handcuffs but
never struck anyone with them.
                                                                   10


defendant, would permit a reasonable finder of fact to have a

reasonable doubt whether the defendant was criminally

responsible at the time of the offense, the Commonwealth bears

the burden of proving beyond a reasonable doubt that the

defendant was criminally responsible.   Commonwealth v. Keita,

429 Mass. 843, 849-850 (1999).   "In this process, we require the

Commonwealth to prove negatives beyond a reasonable doubt:     that

the defendant did not have a mental disease or defect at the

time of the crime and, if that is not disproved beyond a

reasonable doubt, that no mental disease or defect caused the

defendant to lack substantial capacity either to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law."    Id., citing Commonwealth v. McHoul, 352

Mass. 544, 546-547 (1967).

    The defendant contends that, where the Commonwealth offered

no expert evidence that the defendant was criminally responsible

and where there was nothing about the circumstances of the

commission of the crimes or the defendant's conduct after their

commission that would suggest that he was criminally

responsible, it must be inferred that the judge denied the

motion for required findings of not guilty based solely on the

"presumption of sanity," even though the judge made no reference

to such a presumption.   The defendant further claims that the

inference arising from this "presumption" alone cannot support a
                                                                    11


finding beyond a reasonable doubt that the defendant was

criminally responsible.

    The Commonwealth contends that a judge may not allow a

motion for a required finding of not guilty based on the

Commonwealth's failure to prove criminal responsibility because

criminal responsibility is not an "element" of any of the

offenses charged.   We agree that criminal responsibility is not

an "element" of any crime.    Commonwealth v. Kostka, 370 Mass.

516, 532 (1976).    If it were, the United States Supreme Court

would not have upheld the constitutionality of Federal and State

laws that place the burden on a defendant to prove that he or

she was not criminally responsible at the time of the offense,

because the Supreme Court has declared that due process requires

that the prosecution bear the burden of proving every element of

a crime.   Id. at 531-532.   See In re Winship, 397 U.S. 358, 364

(1970).    See also Leland v. Oregon, 343 U.S. 790, 798-799 (1952)

(due process does not mandate that prosecution bear burden of

proof of criminal responsibility).    However, even though

criminal responsibility is not an "element" of a crime, once the

defense of lack of criminal responsibility is proffered and some

evidence is offered in support, a jury must be instructed that

they must find the defendant not guilty by reason of lack of

criminal responsibility if the Commonwealth has failed to meet

its burden of proving criminal responsibility.    See Commonwealth
                                                                     12


v. Goudreau, 422 Mass. 731, 735-737 (1996); id. at 737-739

(Appendix).   See also Model Jury Instructions on Homicide 1-2

(2013).   Regardless of whether criminal responsibility is an

"element" of a crime or a required "fact" to be proved, a

conviction may not stand where no rational finder of fact could

find the defendant criminally responsible.   See Keita, 429 Mass.

at 844 ("if the evidence did not permit a finding of criminal

responsibility, [the defendant's] conviction would create a

substantial risk of a miscarriage of justice").   Therefore, a

required finding of not guilty by reason of lack of criminal

responsibility may rest on the failure of proof of criminal

responsibility.   The absence of self-defense also is not an

element of any offense, but where self-defense is claimed, we

have considered whether the evidence of its absence is

sufficient to support the denial of a motion for a required

finding of not guilty.   See Commonwealth v. McAfee, 430 Mass.

483, 495-496 (1999); Koonce v. Commonwealth, 412 Mass. 71, 73-74

(1992), S.C., 418 Mass. 367 (1994).

    The Commonwealth also contends that, if criminal

responsibility is a suitable ground for a defendant to move for

a required finding of not guilty by reason of lack of criminal

responsibility, the inference arising from the "presumption of

sanity" alone is sufficient to defeat such a motion.     We agree

that, under current case law, the Commonwealth is correct.      In
                                                                   13


Commonwealth v. Smith, 357 Mass. 168, 178-180 (1970), S.C., 427

Mass. 245 (1998), we declared:

    "[A] court cannot direct a jury to return a verdict of not
    guilty by reason of insanity even though the only evidence
    on the issue is that the defendant was insane at the time
    of the alleged crime, and the evidence is uncontroverted.
    [One] reason, as stated in Commonwealth v. Clark, 292 Mass.
    409, 415 [1935], is that 'although the burden of proof is
    on the Commonwealth to prove the defendant mentally
    responsible for crime . . . the fact that a great majority
    of men are sane, and the probability that any particular
    man is sane, may be deemed by a jury to outweigh, in
    evidential value, testimony that he is insane.' . . . It
    is for the jury to decide in each case whether they draw
    that inference. . . . If they draw that inference, it is
    for them to decide what weight they will give to it in the
    light of all of the evidence introduced on the issue. They
    may deem it to outweigh, in evidential value, psychiatric
    or other evidence that the defendant is insane. These are
    decisions to be made by the jury, and the court cannot
    direct the jury how they shall decide thereon."

See Keita, 429 Mass. at 847.     We now revisit the doctrine

arising from that case law.

    A presumption in the classic sense is a rule of law where

proof of fact A is sufficient to satisfy a party's burden to

prove fact B, leaving the opposing party with the burden of

production or persuasion to prove the nonexistence of fact B.

2 McCormick on Evidence § 342, at 675-677 (K.S. Broun ed., 7th

ed. 2013).   In criminal cases, presumptions have been considered

to be either mandatory or permissive:     mandatory presumptions

require the finder of fact to "find the presumed fact upon proof

of the basic fact, 'at least unless the defendant has come

forward with some evidence to rebut the presumed connection
                                                                     14


between the two facts,'" whereas permissive presumptions

"allow[], but do[] not require, the trier of fact to infer the

presumed fact from proof of the basic facts."       Id. at § 346, at

716, quoting County Court of Ulster County, N.Y. v. Allen, 442

U.S. 140, 157 (1979).       We have recognized that what has been

called the "presumption of sanity" is "merely an expression we

have used to describe both 'the fact that a great majority of

men are sane,' . . . and 'the probability that any particular

man is sane,' . . . , from which the jury may conclude that the

defendant is sane" (citations omitted).       Kostka, 370 Mass. at

530.       The "presumption of sanity" is thus not a presumption

under any meaning of the word.       It is not premised on the

admission in evidence of any basic fact to prove a presumed

fact, but rather relies on a commonsense understanding regarding

the sanity of the majority of the populace that need not be

admitted in evidence.       It is more accurately characterized as an

inference; characterizing it as a presumption is a recipe for

confusion.7


       7
       We have declared that the "presumption of sanity" has a
procedural characteristic in that it relieves the Commonwealth
of the burden of proving criminal responsibility unless and
until the defendant proffers the lack of criminal responsibility
as a defense and some evidence is admitted in support of that
defense. Commonwealth v. Kostka, 370 Mass. 516, 530 (1976).
But this suggests that criminal responsibility is an element of
an offense, which it is not, and that the presumption satisfies
the prosecution's burden of proving that element where no
evidence to the contrary is admitted. Lack of criminal
                                                                  15


    The inference that a defendant is probably sane because

most people are sane is not strong enough alone to permit a

rational finder of fact to conclude that a defendant is

criminally responsible beyond a reasonable doubt.   Although it

is probable that an individual selected randomly would be

criminally responsible for his or her acts, that same

probability would not attach to the tiny subset of the

population who are criminal defendants with a long history of

mental illness who proffer a defense of lack of criminal

responsibility.   As Justice O'Connor wrote in a dissent in

Commonwealth v. Kappler, 416 Mass. 574, 599-600 (1993)

(O'Connor, J., dissenting):

    "The fact that a great majority of people are sane says
    little, if anything, about whether a particular defendant
    was sane when he or she engaged in a type of conduct in
    which the great majority of people do not engage. The fact
    that a great majority of people are sane says absolutely
    nothing about whether the defendant in this case, . . . who
    had a long history of 'mental illness and auditory
    hallucinations,' . . . was sane on the morning that,
    staring straight ahead, he drove his automobile through a
    red traffic light on the Alewife Brook Parkway and then
    onto an adjacent footpath where he intentionally struck two
    people he had no reasonable or understandable motive to
    harm, and drove away" (citation omitted).




responsibility is a defense, like self-defense or defense of
another, and, where the defense is not raised, the Commonwealth
has no burden to rebut it. See id. at 532. In this procedural
sense, a "presumption of sanity" is as nonsensical as a
presumption that a person does not kill in self-defense or in
defense of another.
                                                                  16


See Commonwealth v. Ricard, 355 Mass. 509, 515 (1969) ("The

probability that any particular man is sane may be of slight if

any weight in the face of unanimous psychiatric opinion to the

contrary, where it is plainly apparent from the evidence that

the act committed is not one that a sane person would have

committed, there being no circumstances [anger, revenge,

rejection, jealousy, hatred, insult, intoxication, or the like]

to account for the murderous act by a sane person").

    To permit an inference based on the probability that a

person in the general population is criminally responsible,

standing alone, to support a finding beyond a reasonable doubt

of criminal responsibility also diminishes the standard of proof

beyond a reasonable doubt, especially where there is strong

evidence of the defendant's mental health history and bizarre

behavior.   See Commonwealth v. McLaughlin, 431 Mass. 506, 523

(2000) (Spina, J., concurring) (noting "the obvious analytic

problem of reconciling the reasonable doubt standard with a

'presumption' that permits jurors to 'infer' a particular

defendant's sanity from general probabilities"); Commonwealth v.

Mutina, 366 Mass. 810, 815 n.2 (1975) ("it may be questionable

whether the 'beyond a reasonable doubt' standard and the

'presumption of sanity' can logically coexist in a case where

there has been extensive evidence of insanity with no medical

evidence to the contrary").
                                                                   17


     We therefore conclude that the inference that the defendant

is criminally responsible because the great majority of persons

are criminally responsible is not sufficient alone to warrant a

rational finder of fact to conclude beyond a reasonable doubt

that a defendant is criminally responsible.8   But this does not

mean that the Commonwealth must offer expert evidence to meet

its burden of proving criminal responsibility in every case

where the issue is raised.   See Keita, 429 Mass. at 846 ("The

Commonwealth . . . may prove sanity without presenting expert

testimony").   See also Kostka, 370 Mass. at 535-536.   The

Commonwealth may prove criminal responsibility through the

inferences arising from the circumstances of the offense,

including evidence that the defendant planned the offense, acted

     8
       We also recognize that we earlier declared that "[a] jury
instruction concerning the presumption of sanity should be given
in every case in which the question of the defendant's criminal
responsibility is raised." Commonwealth v. Keita, 429 Mass.
843, 846 (1999). The District Court followed this guidance by
including in its model jury instruction 9.200 the sentence, "In
considering whether or not the defendant was sane, if you feel
it appropriate you may take into account that the great majority
of people are sane, and that there is a resulting likelihood
that any particular person is sane." See Criminal Model Jury
Instructions for Use in the District Court (1999). An earlier
version of the Model Jury Instructions on Homicide contained a
substantially identical instruction. See Model Jury
Instructions on Homicide 51 (1999). We now conclude that, given
the meager weight of this inference and the risk of juror
confusion regarding the burden of proof, judges should not
instruct juries regarding this inference. We note that the
current Model Jury Instructions on Homicide make no reference to
this inference in the instructions regarding criminal
responsibility. See Model Jury Instructions on Homicide 1-12
(2013).
                                                                  18


on a rational motive, made rational decisions in committing the

offense and in avoiding capture, and attempted to conceal the

offense or his or her role in the offense.    See Commonwealth v.

Cullen, 395 Mass. 225, 229 (1985) ("the judge was entitled to

infer sanity from the facts underlying the crime"); Ricard, 355

Mass. at 515 (absence of motive for killing supports claim of

lack of criminal responsibility).   The Commonwealth also may

prove criminal responsibility through admissible evidence of the

defendant's words and conduct before, during, and after the

offense, including evidence of malingering.   See Cullen, supra

at 229-230; Commonwealth v. Lunde, 390 Mass. 42, 47-49 (1983).

    In deciding a motion for a required finding of not guilty

by reason of lack of criminal responsibility, the judge must

examine the evidence in the light most favorable to the

Commonwealth and determine whether "the evidence and the

inferences that reasonably could be drawn from it were 'of

sufficient force'" to permit a rational finder of fact to

conclude that the defendant was criminally responsible beyond a

reasonable doubt.   See Commonwealth v. Scott, 472 Mass. 815, 820

(2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 676–677

(1979).   A motion for a required finding of not guilty may be

brought at the close of the Commonwealth's case and again at the

close of all the evidence, see Commonwealth v. Sheline, 391

Mass. 279, 283 (1984), but we conclude that a motion for a
                                                                  19


required finding of not guilty by reason of lack of criminal

responsibility may be brought only at the close of all the

evidence.   The reason for the difference is that the

Commonwealth need prove criminal responsibility beyond a

reasonable doubt only after there is evidence presented of lack

of criminal responsibility that is sufficient to warrant a

reasonable doubt, see Commonwealth v. Berry, 457 Mass. 602, 612

& n.5 (2010), S.C., 466 Mass. 763 (2014), quoting Commonwealth

v. Mills, 400 Mass. 626, 627 (1987), and such evidence is often

presented only during the defendant's case.   By limiting such

motions for a required finding of not guilty by reason of lack

of criminal responsibility to the close of all the evidence, we

ensure that the Commonwealth has a full opportunity to offer

evidence in rebuttal of any such defense claim.

    In deciding such a motion at the close of all the evidence,

a judge must view the evidence in the light most favorable to

the Commonwealth and must disregard contrary evidence presented

by the defendant, including the testimony of a defense expert,

unless the contrary evidence demonstrates that the

Commonwealth's evidence, or any inference drawn from such

evidence, is "conclusively incorrect."   See Commonwealth v.

O'Laughlin, 446 Mass. 188, 204 (2006), quoting Commonwealth v.

Pike, 430 Mass. 317, 323 (1999).   See also O'Laughlin, supra

("the fact that the defendant has presented evidence that he did
                                                                  20


not [commit the crime] does not affect the sufficiency of the

evidence unless the contrary evidence is so overwhelming that no

rational jury could conclude that the defendant was guilty");

Kater v. Commonwealth, 421 Mass. 17, 20, S.C., 421 Mass. 1008

(1995), and 432 Mass. 404 (2000).

    It will be the rare case where the totality of the evidence

regarding the defendant's conduct and the circumstances

surrounding the offense will not be sufficient to defeat a

defendant's motion for a required finding of not guilty by

reason of lack of criminal responsibility.    Where, however, this

evidence provides only weak support for a finding of criminal

responsibility, the Commonwealth proceeds at its peril if it

chooses to offer no expert testimony to rebut a defense expert's

opinion of lack of criminal responsibility.   Cf. Kostka, 370

Mass. at 540 (Hennessey, C.J., dissenting in part) ("the

Commonwealth runs the very real risk of reversal and the

granting of a new trial if it chooses to rely on the presumption

and the circumstantial evidence of sanity . . . , rather than to

introduce medical evidence of sanity").

    Applying the legal standard to the facts of this case, we

conclude that this is not one of those rare cases, and that the

evidence was sufficient as a matter of law to support a finding

that the defendant was criminally responsible beyond a

reasonable doubt.   Viewed in the light most favorable to the
                                                                  21


Commonwealth, the evidence would allow a reasonable fact finder

to infer that the defendant (1) told the doctor that he

struggled with the officer because he feared he would be taken

back to jail and therefore understood that the man was a police

officer, with the power to arrest him; (2) attempted to divert

the officers' attention by asking one of the officers to light

his cigarette, because he feared that the officers were going to

arrest him on an outstanding warrant and became violent once he

realized that his ruse had failed; (3) fought the officers

because he wanted to escape rather than be arrested and return

to jail; and (4) was fabricating his claims that the person he

assaulted was wearing a yellow suit with a reflective emblem and

that he did not believe the person to be a police officer.

    Although the testimony and opinion of the doctor

"contradicted, and tended to undermine, the potency of the

Commonwealth's case, it falls well short of demonstrating that

the Commonwealth's evidence was 'conclusively incorrect.'"

Pike, 430 Mass. at 323, quoting Kater, 421 Mass. at 20.    See

Kater, supra ("Deterioration would occur not because the

defendant contradicted the Commonwealth's evidence . . . , but

because evidence for the Commonwealth necessary to warrant

submission of the case to the jury is later shown to be

incredible or conclusively incorrect" [citation omitted]).
                                                                   22


    2.    Argument by prosecutor.   The defendant also argues that

the prosecutor made improper assertions to the judge in arguing

against the defendant's motion for required findings of not

guilty.   Specifically, the defendant claims that the

prosecutor's argument that the defendant had the capacity to

understand his actions at the time of the offenses and that he

deliberately chose not to take medications were not supported by

the evidence adduced at trial.   As to the argument that the

defendant had the substantial capacity to understand the legal

and moral significance of his actions on the day of the

offenses, our conclusion that the evidence was sufficient to

support a finding of criminal responsibility also means that the

prosecutor's argument was a "fair inference[] that might be

drawn from the evidence."   See Commonwealth v. Ridge, 455 Mass.

307, 330 (2009), quoting Commonwealth v. Murchison, 418 Mass.

58, 59–60 (1994).

    As to the argument that the defendant was deliberately

refusing to take medication, the defendant cannot establish that

he was prejudiced by any misstatement because, shortly after the

prosecutor made that statement, defense counsel brought to the

judge's attention the fact that the defendant was not prescribed

medication at the Middlesex County house of correction before

the incident.   Thus, it is unlikely that any misstatement
                                                                  23


affected the trial judge's findings.   See Commonwealth v.

Beaudry, 445 Mass. 577, 584-585 (2005).

    Conclusion.   The order denying the defendant's motion for

required findings of not guilty by reason of lack of criminal

responsibility is affirmed, and the defendant's convictions are

affirmed.

                                   So ordered.
