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SJC-11687

                COMMONWEALTH   vs.   DESHAWN CHAPPELL.



     Suffolk.       September 11, 2015. - November 23, 2015.

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


Homicide. Deoxyribonucleic Acid. Constitutional Law,
     Confrontation of witnesses, Fair trial. Evidence, Expert
     opinion, Consciousness of guilt, State of mind, Insanity.
     Witness, Expert. Insanity. Mental Health. Practice,
     Criminal, Capital case, State of mind, Confrontation of
     witnesses, Instructions to jury.



     Indictment found and returned in the Superior Court
Department on March 24, 2011.

    The case was tried before by Jeffrey A. Locke, J.


     Stephen Neyman for the defendant.
     Matthew T. Sears, Assistant District Attorney (Edmund J.
Zabin, Assistant District Attorney, with him) for the
Commonwealth.


    BOTSFORD, J.    On January 20, 2011, Stephanie Moulton, a

residential counsellor at a mental health facility in Revere,

was killed while she was at work.     The defendant, a resident of

the facility, was charged with her murder.     Principally at issue
                                                                     2

at the defendant's subsequent jury trial was his mental state at

the time of the killing; the defendant presented a defense of

lack of criminal responsibility.    On October 28, 2013, the jury

found the defendant guilty of murder in the first degree on the

theory of deliberate premeditation.

    In his appeal from the conviction, the defendant argues

that the trial judge erred by (1) permitting the Commonwealth to

present evidence concerning deoxyribonucleic acid (DNA) testing

through an expert witness who had not performed the DNA testing

herself; (2) impermissibly limiting the direct examination of

the defendant's primary mental health expert witness; (3)

providing the jury with an inadequate instruction regarding the

consequences of a verdict of not guilty by reason of lack of

criminal responsibility; and (4) failing to limit the jury's

consideration of evidence of consciousness of guilt solely to

the issue of the defendant's mental state at the time the crime

was committed.   He also requests relief under G. L. c. 278,

§ 33E.   We affirm the defendant's conviction, and after a

thorough review of the record, we decline to grant relief

pursuant to G. L. c. 278, § 33E.

    1.   Background.1   a.   The offense.   We summarize the facts

the jury could have found.    Prior to January, 2011, the



    1
       We summarize here the evidence presented at trial
concerning the killing of the victim and the defendant's
                                                                   3

defendant was a resident of Perkins House, a moderate-intensity,

residential mental health facility in the Charlestown section of

Boston.2   Following an altercation between the defendant and

another resident at that facility, the defendant was transferred

temporarily to a respite program and, on January 3, 2011, he

moved to Seagull House, a low-intensity group home in Revere for

adults with mental illness.3   Seagull House staff helped

residents to obtain basic social skills and skills required for

residents eventually to be able to live on their own.   Seagull

House was a "closed house," meaning that, between the hours of

9 A.M. and 3 P.M., residents were not allowed to stay inside the

facility but were expected to go to jobs or attend mental health

group programs in the community.

     On January 20, 2011, despite the closed house policy, the

defendant remained at Seagull House past 9 A.M. because he was

scheduled to have a meeting at 1 P.M. with his "team," a group

that included the victim and her supervisor, Colette



criminal responsibility, reserving discussion of other evidence
to our consideration of the legal issues raised.
     2
       Perkins House is a residential mental health facility
operated by the North Suffolk Mental Health Association (North
Suffolk), a nonprofit organization which contracts with the
Department of Mental Health to provide mental health services to
clients of the department.
     3
       Seagull House is another residential mental health
facility operated by North Suffolk.
                                                                   4

Deneumostier.4   Deneumostier arrived at Seagull House at

approximately 8:30 A.M. on January 20, but left shortly

thereafter to perform work-related errands.   The victim also

arrived around the same time or a little later.   When the

Seagull House staff member who had been in charge of the

facility the previous night left sometime after 9 A.M., the

victim and the defendant were the only two people remaining.     At

approximately 10 A.M., Deneumostier spoke to the victim by

telephone; at no point during that conversation did the victim

report any concerns about the defendant's mental status.

Deneumostier tried to contact the victim by telephone again

several times before she (Deneumostier) returned to Seagull

House at 11:30 A.M., but the calls went unanswered.

     When Deneumostier arrived at the facility, she heard the

fire alarm sounding, saw smoke, and telephoned the Revere fire

department or 911.   When fire fighters and police officers

responded, they found no one inside the building, but they did

observe a stove with two jets left on the high setting, one of

which had smoke emanating from it; burnt paper on the kitchen


     4
       According to Colette Deneumostier, team meetings were
typically set up shortly after a resident moved into Seagull
House and began participating in its program. The purpose of
the January 20, 2011, meeting of the defendant's team was to
make sure the staff and he were "on the same page" and to
address "some concerns with [the defendant] cooking at night,
not doing his chore[s] all the time, [and] taking other people's
food. And . . . to talk about his goals that were being set
up."
                                                                     5

floor; and charred debris in one of the bedrooms, including a

gray, left boot.    In addition, there was a large amount of blood

on the floor in the hallway, which appeared to be a drag mark

that continued down the hallway and outside to the parking lot,

where a spot of blood and a blood-soaked paper towel were found.

Under the bed in the defendant's bedroom police found a crumpled

note that stated:

     "Babycake, what ups? I still want to kick with you when I
     get something house next year. Are you down with that?
     How the kids? WB if you can. Can you go somewhere, kick
     with me, movies, out to eat?"

Below that writing was a message in the victim's handwriting

that read:   "Not just because I work here, but for many reasons,

this is inappropriate."    Police also recovered from an office

located in the lower portion of the building a green notebook

that contained the victim's handwriting; at the time it was

recovered, the notebook was opened to a page referencing the

defendant.

     At approximately 12:30 P.M. the same day, the victim's body

was found in the parking lot of St. George's Greek Orthodox

Church (St. George's) in Lynn.5   The victim's pants and underwear

were pulled down, and she was wearing one gray boot on her right

foot that matched the left boot recovered from Seagull House;


     5
       The defendant had lived for a short period of time in 2005
or 2006 in Lynn near to St. George's Greek Orthodox Church (St.
George's), at a time when his then girl friend lived within
walking distance of the church.
                                                                   6

her left foot was bare other than a white sock.   The victim's

body was covered with a bed sheet that came from the defendant's

bedroom at Seagull House.   The victim had sustained sharp force

injuries to her neck and blunt impact injuries to her head,

torso, and upper extremities, but the cause of death was blood

loss attributable to a long slash wound to the neck, which

severed the sternocleidomastoid muscle, the jugular veins, and

the carotid arteries.

     Video surveillance from St. George's dated January 20,

2011, showed a vehicle, identified as belonging to the victim,

enter the St. George's parking lot at approximately 11:32 A.M.,

drive to the area where the victim was later found, and leave

the parking lot at approximately 11:34 A.M.   The video recording

also showed that, while the vehicle was parked, an individual

stepped out of the driver's side, made a path around the rear of

the vehicle to the passenger's side, returned to the driver's

side, proceeded once more to the passenger's side, and

eventually drove away.6

     Around 1 P.M. on January 20, 2011, the defendant visited a

cousin in the Dorchester section of Boston and asked her for

some money and a place to stay for a couple of days; he was


     6
       A resident of a building near to St. George's testified
that at approximately 10 A.M. on January 20, 2011, she saw a man
who fit the defendant's description in the parking lot. The
witness saw the man bending over, but a snow bank blocked her
view of the man's lower body.
                                                                    7

unsuccessful in securing either one.   During the visit, the

defendant's cousin saw a brown stain on the defendant's pants

and a brownish or red stain on the defendant's sweatshirt, and

she noticed that he kept his hands covered with his sleeves.

When the defendant left the house, he was seen standing in front

of the victim's vehicle, which he later abandoned.   After

leaving his cousin's house, the defendant went to a clothing

store where he stole a white hooded sweatshirt and a hat, and

then traveled by train to Braintree and inquired about an

extended-stay room at a hotel.   He then telephoned his

grandmother, who lived in the Roxbury section of Boston, and

asked if he could come to her house, insisting that he did not

kill the victim and that his previous girl friend did,7 and later

traveled by public transportation to the building where his

grandmother lived.

     Police officers were waiting for the defendant in the lobby

of his grandmother's building, his grandmother having informed

the police of his impending arrival.   Following some resistance,

the defendant was arrested and taken into custody.   Police

officers handcuffed the defendant and placed him in a chair in

the lobby.   While the defendant was seated, and as a police


     7
       Prior to the defendant's telephone call, his grandmother
had seen the television news regarding the killing of the victim
in Revere. When she spoke to the defendant during his call, she
told him that she heard that the television news coverage about
the killing in Revere involved him.
                                                                   8

officer was administering Miranda warnings to him, the defendant

blurted out, "The Chinese kid did it."   The defendant did not

otherwise exhibit bizarre or psychotic behavior or appear or

sound delusional during the time he was in the lobby.

    The defendant was transported to a Boston police station

and then to the police station in Revere.   During the trip to

Revere, the defendant was quiet and calm, but crying, and when

asked if he was all right, he said that people had been chasing

him all day with guns and that he was worried for his family.

He was asked if he knew why he was in police custody, and he

responded that it was "because of what happened at the house."

Testing of a sample of blood located on fingernail scrapings

taken from the defendant's right hand revealed that the sample

contained a mixture of DNA from at least two individuals.    The

major profile identified matched the defendant, and the victim

was included as a potential contributor to the minor profile.

    b.   The defendant's mental state and criminal

responsibility.   The defendant was thirty at the time of trial

in October, 2013.   According to his mother and grandmother,

while in high school, the defendant had regularly attended

school and church, was outgoing and well-dressed, played sports,

and worked at a part-time job.   He graduated from high school

around 2002 and worked as a sales person at a clothing store and

then as a bar back at a convention center in Boston.    Around
                                                                    9

2004, his mother noticed that he no longer cared about his

appearance and that he had become withdrawn.    The defendant

began to have trouble sleeping and would call his mother

regularly in the middle of the night, asking why he was hearing

voices in his head.    He also stopped attending weekly family

dinners at his grandmother's house.

     The defendant was first hospitalized in 2006, after he

informed his mother that he wanted to go to the hospital because

he felt that he might hurt someone.    His mother took him to the

emergency department of Massachusetts General Hospital (MGH),8

and personnel at MGH kept the defendant for observation for two

to three weeks.    When he was discharged, he went to live with

his grandmother.    He was prescribed medication, which he

eventually stopped taking because the side effects caused him

difficulties with swallowing and speaking, and also caused

involuntary tremors.    Only months after the first instance, the

defendant was again hospitalized at MGH.    Around 2006, he was

diagnosed with schizophrenia9 and, in that year, became a client

of the Department of Mental Health (department).    In 2006 and

2007, the defendant was hospitalized briefly at Whidden Memorial


     8
       The defendant's mother was employed by Massachusetts
General Hospital as an operations associate.
     9
       Schizophrenia is a mental illness that is long-standing in
duration, and symptoms of the illness include disorganized
thoughts and perception, delusions, and auditory and visual
hallucinations.
                                                                      10

Hospital.      From 2006 to 2009, the defendant lived primarily with

his grandmother.      According to his grandmother, the defendant's

mental health condition deteriorated during that period, even

though he resumed taking medication.      For example, the defendant

was hearing voices and he tried to get the voices out of his

head by eating large amounts of food and by trying to burn them

out.    At one point, he also became too frightened to leave the

house.      In 2009, the defendant was hospitalized at MGH for a

third time, after which he went to Bridgewater State Hospital

(Bridgewater) for three weeks.      Around 2009, the defendant was

placed at Perkins House, and in late 2009, he was hospitalized

at Arbor Hospital.      The defendant was hospitalized for

psychiatric reasons on at least five occasions between 2006 and

the day the victim was killed in January, 2011; the final

hospitalization ended in December, 2009.

       David Thomson, a program coordinator employed by North

Suffolk Mental Health Association (North Suffolk), first met the

defendant when he was a resident of Perkins House.      Thomson made

referrals of the defendant to the Boston Emergency Services Team

(BEST)10 in October, 2009, and in July and September, 2010,

because the defendant appeared disorganized and was

decompensating on these dates.      The defendant's medical record


       10
       The Boston Emergency Services Team (BEST) is a team of
mental health clinicians who respond to emergency calls to
perform crisis evaluations.
                                                                  11

at North Suffolk indicated that on the date of the July, 2010,

BEST referral, he had an increase in hallucinations, felt

paranoid, believed that members of the staff were listening to

his conversations, and made verbal outbursts regarding the

taking of his powers.   That record also reflected that the

defendant had a history of traumatic brain injuries, lead

poisoning, and substance abuse.

    Michael Swinchoski, a licensed mental health counsellor

employed by North Suffolk, first met the defendant in 2007.

Swinchoski believed the defendant suffered from disorganized

schizophrenia, and that he responded to an inner stimulus

unprompted by any external circumstances.    In December, 2010,

and January, 2011, Swinchoski was working with the defendant in

an attempt to allow him to live in his own apartment, which

Swinchoski thought would help reduce the defendant's level of

stress and, thus, ameliorate his symptoms.    On January 19, 2011,

one day before the killing, Dr. Daniel Debowey, a psychiatrist

employed part-time by North Suffolk, met with the defendant for

the first time; Debowey was going to become the defendant's new

psychopharmacological treater.    During the meeting, the

defendant was wearing socks on his hands, which Debowey noted

because he knew that the defendant had been diagnosed with

schizophrenia or schizoaffective disorder and, at times, bizarre

elements of clothing can be a sign of relapse.    However, the
                                                                  12

defendant did not report any auditory hallucinations, nor did he

appear to be responding to internal stimuli, and Debowey was not

left with the impression that the defendant posed an acute risk

to himself or others.

    On January 21, 2011, one day after the victim was killed,

Dr. Naomi Leavitt, a forensic psychologist employed by the

department, conducted a court-ordered competency evaluation of

the defendant.   In Leavitt's opinion, the defendant failed to

understand her explanation of the fact that what he said to her

would not be confidential, and made statements not reflective of

reality including that he did not have a mother, that he had

only finished the first grade, that he had never been in a

psychiatric hospital or been diagnosed with a mental illness,

that there were "rascals" out to hurt him, and that he would

wake up in the morning with bruises on his body.   During the

evaluation, the defendant became increasingly agitated.     Leavitt

questioned the defendant's competence to stand trial and

recommended that he be further evaluated at Bridgewater.     A few

weeks thereafter, Dr. Charles Carroll, the director of forensic

services and psychology at Bridgewater, performed two

assessments of the defendant's competence to stand trial and his

need for further hospitalization.   Carroll diagnosed the
                                                                   13

defendant with schizophrenia, undifferentiated type.11   Carroll

opined that the defendant was not competent to stand trial due

to thought disorganization related to his mental illness and

that the defendant required further hospitalization.

     The defendant's primary mental health expert at trial was

Dr. David Werner, a psychologist.   Werner met with the defendant

on three occasions and reviewed the multiple medical and

psychiatric records of the defendant, including records of all

the defendant's hospitalizations, and police reports; he also

interviewed family members.   Based on his personal meetings and

review of the data, Werner diagnosed the defendant with paranoid

schizophrenia.   Werner opined that the defendant suffered from

hallucinations and delusions that made him unable to distinguish

between voices in his head and memories of a person's voice, and

that the defendant had been decompensating since July, 2010.

The defendant told Werner that on January 20, 2011, he (the

defendant) heard a voice telling him to kill the victim and

therefore he choked her, and when he thought that she was still

alive, he obtained a knife and inflicted the wounds that caused

her death.   Werner ultimately concluded that the defendant was

not criminally responsible for his acts on January 20, 2011,

because he could not conform his conduct to the law at that


     11
       Undifferentiated type means that the affected person
presents with symptoms of various other subtypes of
schizophrenia.
                                                                  14

time.   In Werner's view, the defendant's attempts to conceal the

crime after the fact were consistent with the conclusion that

the defendant could not conform his conduct to the law because

those attempts were so completely disorganized and ineffective.

    The Commonwealth's expert witness, Dr. Martin Kelly, a

psychiatrist, conducted a criminal responsibility examination of

the defendant and opined that, at the time of the killing, the

defendant did not suffer from a mental disease or illness that

interfered with his ability to appreciate the wrongfulness of

his conduct or conform his conduct to the law.   According to

Kelly, when a person actually experiences auditory

hallucinations, the hallucinations are part of a larger,

consistent, delusional system or "back story."   Kelly opined

that, although the defendant claimed to experience auditory

hallucinations that caused him to kill the victim, the

hallucinations were not part of a larger delusional system and

were probably made up.   Kelly's opinion was also based on his

view that the defendant's self-interested acts to try to cover

up the crime and his participation in it demonstrated that the

defendant had the capacity to appreciate the wrongfulness of his

conduct.   Finally, in reviewing the records and notes prepared

by the North Suffolk mental health staff and clinicians who had

seen and interacted with the defendant from July, 2010, to
                                                                   15

January, 2011, Kelly observed no decompensation by the

defendant.

     Discussion.   1.   Substitute DNA expert.   On appeal, the

defendant argues that his constitutional right of confrontation

guaranteed by the Federal and State Constitutions was violated

when the Commonwealth's DNA expert, Lynn Schneeweis, was

permitted to testify about the results of DNA testing performed

by another analyst, Sarah Hughes, who was no longer employed by

the State police crime laboratory (crime lab) at the time of

trial and was not available to testify.12   The argument fails.

     Schneeweis held a master's degree in forensic science, was

a trained DNA analyst, and also was the section manager for

forensic biology at the crime lab, overseeing six or seven of

the crime lab's units, including the criminalistics and crime

scene units and the DNA unit.    Within the DNA unit, she

supervised approximately twenty-five to thirty DNA analysts.

Schneeweis described in her testimony the process by which the

crime lab conducts DNA analysis, including the specific

protocols used.    Although Schneeweis did not perform the

preliminary analysis of the DNA evidence in this case, she was

the "technical reviewer" and "second reader" of the DNA analysis

performed by Hughes.    A technical reviewer "is responsible for


     12
       Immediately before trial, the Commonwealth filed a motion
in limine to permit Lynn Schneeweis to testify, rather than
Sarah Hughes, who was in England. The judge allowed the motion.
                                                                  16

. . . going through the file and making sure that everything was

done in accordance with policy and procedure, and that the

conclusions that the analyst[] draws are supported by the data

that was generated during the analysis procedure," and

Schneeweis performed this work in the present case.   As the

second reader, Schneeweis independently read all the raw data

and the reports produced by Hughes, made interpretations, and

ensured that there was agreement between her findings and those

of Hughes.   After explaining in some detail the specific work

that she herself had performed, Schneeweis testified to her

opinions or conclusions13 concerning the DNA that had been

collected.   In particular, as stated earlier, she opined that

that the major profile identified in the DNA sample taken from

the fingernail scrapings of the defendant's right hand matched

the defendant, and the victim was included as a contributor to

the minor profile of the DNA mixture contained in this sample.14


     13
       With few exceptions, in his direct examination of
Schneeweis, the prosecutor asked the witness for her
"conclusions" rather than "opinions," but in the context it is
clear that the prosecutor was using the two words
interchangeably.
     14
       The fingernail scrapings were the only deoxyribonucleic
acid (DNA) sample that included the defendant and the victim as
possible contributors. There was no male DNA detected on swabs
and scrapings collected from the victim's underpants, and
therefore, testing of that DNA sample was ended. In addition,
samples from reddish-brown stains on the defendant's sweatshirt
and from the victim's hands were submitted for DNA analysis and
the defendant was excluded from both as a potential contributor.
                                                                  17

In addition, based again on her own independent work, she

testified to her opinion that the probability of a random,

unrelated individual contributing to the DNA mixture of the

minor profile was approximately one out of 494,400 of African-

Americans, one out of 242,800 of Caucasians, one out of 314,400

of Hispanics, and one out of 3,204,000 of Asians.

     At trial, the defendant objected at the outset of

Schneeweis's testimony generally on confrontation and chain of

custody grounds;15 with respect to confrontation, he argued that

Schneeweis could not testify to any opinions or conclusions

regarding the DNA evidence because she did not personally

conduct the laboratory examination and analysis of that

evidence.   The trial judge overruled the objection.   The parties

appear to disagree about whether the defendant's confrontation

argument on appeal is the same or different from his trial

objection -- an issue that bears on the standard of review to be

applied -- but we need not resolve the point, because the judge

committed no error in permitting Schneeweis to testify or with

respect to any of the particulars of her testimony.

     With regard to a defendant's right of confrontation, as the

defendant recognizes, we have permitted experts to rely on and

testify to their own opinions based on "the results of tests,


     15
       The defendant does not raise any argument concerning
chain of custody on appeal, and in any event, our review reveals
no error.
                                                                   18

experiments, or observations conducted by another" since

Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532

(1986), decided nearly thirty years ago.   See Commonwealth v.

Barbosa, 457 Mass. 773, 784-785, 790 (2010), cert. denied, 131

S. Ct. 2441 (2011).    Cf. Commonwealth v. Nardi, 452 Mass. 379,

383, 389-391 (2008) (opinions of substitute medical examiner

based on autopsy report and photographs relating to autopsy that

he did not perform).   The critical issue with respect to an

expert, including in particular a DNA analyst, is whether the

defendant is able to cross-examine the expert in a meaningful

way regarding possible flaws relating to the underlying data

that forms the basis of his or her opinion.   See Barbosa, supra

at 790-791.   Compare Commonwealth v. Greineder, 464 Mass. 580,

594-599, cert. denied, 134 S. Ct. 166 (2013) (defendant had

meaningful opportunity to cross-examine Commonwealth's expert

about reliability of data), with Commonwealth v. Tassone, 468

Mass. 391, 399, 401-402 (2014) (defendant could not meaningfully

cross-examine Commonwealth's expert witness where DNA was

analyzed at different laboratory in different State from where

expert worked).16


     16
       We have recognized that for DNA evidence in particular,
"the testing techniques are so reliable and the science so sound
that fraud and errors in labeling or handling may be the only
reasons why an opinion is flawed" (emphasis in original).
Commonwealth v. Barbosa, 457 Mass. 773, 790 (2010), cert.
denied, 131 S. Ct. 2441 (2011). See Commonwealth v. Tassone,
468 Mass. 391, 400 (2014).
                                                                   19

     Similar to the defendant in Barbosa, 457 Mass. at 791, and

particularly like the defendant in Greineder, 464 Mass. at 597-

598, the defendant here certainly was able to cross-examine the

Commonwealth's expert Schneeweis meaningfully about the

reliability of the underlying DNA testing procedures and data,

given that Schneeweis was the crime lab's section manager for

forensic biology and supervisor of the crime lab's DNA analysts

(including Hughes) and had been directly involved in this case

as the second reader and technical reviewer; in those capacities

she had reviewed both the raw DNA data produced by the crime

lab's analytic instruments and the DNA samples themselves.   The

defendant does not claim otherwise, but asserts, based on one

statement made by Schneeweis during her direct examination,17

that all Schneeweis did was to parrot and repeat for the jury

Hughes's conclusions.

     The defendant is correct that under Massachusetts law, an

expert witness is not permitted to testify on direct examination

to facts or data that another, nontestifying expert has

generated, or to the nontestifying expert's own opinion, even

though this information may be an important part of the basis of

the testifying expert's opinion.   See, e.g., Greineder, supra at

592, 601-602.   See also Barbosa, 457 Mass. at 785; Nardi, 452

     17
       Schneeweis testified that, as part of her review of
Hughes's work in this case, she, Schneeweis, determined whether
"the conclusions that were generated by [Hughes were] supported
by the data generated during the analysis procedures."
                                                                    20

Mass. at 390-391; Mass G. Evid. § 703 (2015).   But we see no

indication in Schneeweis's testimony, including the portion of

her testimony to which the defendant points (see note 17,

supra), that Schneeweis at any time described any part of

Hughes's DNA analysis or of Hughes's testing results, opinions,

or conclusions.   Rather, Schneeweis described the analytic

process that Hughes, as an analyst in the crime lab, would have

followed, and Schneeweis's own opinions that she had formed

independently and directly from the case review and analysis she

herself had performed.   Schneeweis's testimony was admissible in

all respects, and the judge did not err in admitting it.

     2.   Limited direct examination of defendant's primary

mental health expert.    At trial, the defendant's counsel argued

that the defendant' mental health experts, and in particular Dr.

Werner, were permitted under our case law to testify on direct

examination about the contents of the defendant's medical

records, including medical diagnoses and opinions about the

defendant's mental state that the expert had read and may have

relied on in forming the expert's own opinion, even though the

records themselves were not in evidence and the defense did not

wish to introduce them in evidence.18   The trial judge


     18
       In support of this argument, the defendant cited to the
trial judge a number of decisions of this court, including
Commonwealth v. Greineder, 464 Mass. 580, cert. denied, 134 S.
Ct. 166 (2013); Commonwealth v. Nardi, 452 Mass. 379 (2008);
Commonwealth v. Markvart, 437 Mass. 331 (2002); Commonwealth v.
                                                                  21

disagreed,19 but pointed out that if the defense introduced the

defendant's medical records in evidence as an exhibit, Werner

(and any other expert) would then be entitled to testify

concerning any opinions or other information contained in them.

The defendant's counsel chose not to introduce the medical

records, in part because of the voluminous quantity and the

difficulty he perceived in the jury's attempting to wade through

them.

     On appeal, the defendant repeats the claim that it was

error to preclude Werner from testifying, during his direct

examination, to opinions about the defendant's mental illness

and mental status more generally that were contained in his

medical records.   He does not focus his argument on the right of

confrontation guaranteed by the Sixth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights, but contends that this limitation violated his

separate right to present a defense that is protected by these

same constitutional guarantees.   We disagree.



Waite, 422 Mass. 792 (1996); and Department of Youth Servs. v. A
Juvenile, 398 Mass. 516 (1986).
     19
       The judge explained: "I think Greineder makes clear that
the basis for one's opinion is properly the subject of cross-
examination, but is not generally admissible as part of direct
examination. . . . And if the Commonwealth does cross-examine
him on any basis for opinion[,] that then permits you on
redirect to explore whatever the sources of information that he
used were."
                                                                    22

     In Department of Youth Servs. v. A Juvenile, 398 Mass. at

531, we ruled for the first time that an expert may "base an

opinion on facts or data not in evidence if the facts or data

are independently admissible and are a permissible basis for an

expert to consider in formulating an opinion."    However, that

case also makes clear that although an expert may rely on facts

or data that have not been admitted but would be admissible in

evidence, the expert may not testify to the substance or

contents of that information on direct examination.     Id.   See

Tassone, 468 Mass. at 399 ("Our evidentiary rules permit the

facts or data underlying the opinion to be elicited only by the

defendant on cross-examination and, where this door has been

opened by the defendant, by the prosecution on redirect

examination").20   The defendant points out that our cases

discussing this rule have done so in the context of a

Commonwealth expert witness, where it is the Commonwealth that

is precluded from asking the expert on direct examination to

testify to the content of data or even opinions generated or

held by others, and the cases have emphasized that the rationale

for the rule is to protect defendants from the admission of

hearsay evidence by the Commonwealth.   See, e.g., Greineder, 464

Mass. at 592-594; Barbosa, 457 Mass. at 785.     The defendant

     20
       Several cases following Department of Youth Servs. v. A
Juvenile, 398 Mass. at 531, have reaffirmed this limitation.
See, e.g., Greineder, 464 Mass. at 583-584; Markvart, 437 Mass.
at 337-338.
                                                                   23

contends that, where the defendant who seeks to ask his or her

own expert witness about the bases for the expert's opinion, the

interests are different, and the defendant's ability to present

a defense is materially impaired if the expert is not permitted

to explain those bases by pointing to admissible, but not

admitted, evidence that the expert has reviewed and relied on.

    The limitation just discussed on the direct examination

testimony of an expert witness is a common-law evidentiary rule

that operates in both civil and criminal cases and applies to

both sides.   See Department of Youth Servs. v. A Juvenile, 398

Mass. at 531-532; Mass. G. Evid. § 703.   See also Vassallo v.

Baxter Health Care, 428 Mass. 1, 15-16 (1998); Commonwealth v.

Waite, 422 Mass. 792, 803 (1996).   "A defendant's right to

present a full defense . . . is not without limits," United

States v. Bifield, 702 F.2d 342, 350 (2d Cir.), cert. denied,

461 U.S. 931 (1983), and as a general rule, "does not entitle

him to place before the jury evidence normally inadmissible"

(quotation omitted).   United States v. Yousef, 327 F.3d 56, 128

(2d Cir.), cert. denied, 540 U.S. 933 (2003).   See United States

v. Anderson, 872 F.2d 1508, 1519 (11th Cir.), cert. denied, 493

U.S. 1004 (1989).   There is no reason to apply an exception to

our evidentiary rule in this case, particularly because, as the

judge stated to the defendant's trial counsel, he would have

been able to elicit from the defense expert on direct
                                                                     24

examination the opinions and other information from the

defendant's medical records in which he was interested by first

introducing those medical records in evidence.    See Mass. G.

Evid. § 703.    That counsel did not wish to follow this path for

strategic reasons does not transform the generally applicable

evidentiary requirement into an unconstitutional burden placed

on the defendant.21

     3.    Mutina instruction.   At trial, the defendant asked for

a jury instruction about the consequences of a verdict of not

guilty by reason of lack of criminal responsibility (Mutina

instruction).    See Commonwealth v. Mutina, 366 Mass. 810, 823 &

n.12 (1975).    The defendant's request, however, was that the

judge modify the Mutina instruction that is part of the Model

Jury Instructions on Homicide (2013) in several respects; most

substantively, he sought the addition of language that would

inform the jury that if the defendant were still suffering from

a mental illness and still dangerous, "[t]here is no limit to

additional commitments [following the initial commitment of six

months] and the defendant could be committed for the rest of his

life."22   The judge did not adopt the defendant's proposed


     21
       Furthermore, the record shows that the defendant's expert
was permitted, on direct and cross-examination, to testify at
length to specific aspects of the defendant's medical and
treatment records.
     22
       The instruction proposed by the defendant's trial counsel
also would have added to the model instruction a statement that
                                                                   25

instruction, but gave the model Mutina instruction.   See Model

Jury Instructions on Homicide, supra at 11-12.

    On appeal, the defendant argues that the judge's Mutina

instruction created a substantial likelihood of a miscarriage of

justice.   He claims that by including references to the number

of days the defendant might be committed for observation and

also referencing the initial six-month commitment without a

mention of the possibility that the defendant could remain

committed for the rest of his life, the instruction was unfairly

one-sided, underestimated the likely period of commitment the

defendant would face, and was likely to distract the jury from

their essential fact-finding role.   The information about the

consequences of a verdict of not guilty by reason of lack of

criminal responsibility included in the judge's Mutina

instruction, however, was accurate; the judge did not err in

giving it in response to the defendant's request for a Mutina

charge.    See Commonwealth v. Johnston, 467 Mass. 674, 702-703

(2014).    Nonetheless, the core of the defendant's criticism --

that the model Mutina instruction underestimates the potential,

and in the defendant's view, likely, length of confinement of a

defendant found not criminally responsible -- is one that has


if the jury found the defendant guilty of murder in the first or
second degree, he would be sentenced to State prison, not a
mental health facility. The defendant does not press the point
on appeal, and we find no persuasive reason to add this
language.
                                                                  26

been raised as a matter of concern over the years, see, e.g.,

Johnston, 467 Mass. at 701-702; Commonwealth v. Callahan, 380

Mass. 821, 826-827 (1980), S.C., 386 Mass. 784 (1982), and S.C.,

401 Mass. 627 (1988); Commonwealth v. Loring, 14 Mass. App. Ct.

655, 659-660 (1982), and warrants our consideration.

     In the Mutina case itself, this court did not prescribe or

even suggest any specific form of instruction.   Moreover, the

court has made clear that a Mutina instruction need not mention

the specific time periods for observation or commitment that are

included in the civil commitment statutes.23   See Callahan, supra

at 827-828.   A Mutina instruction is designed to avoid

unnecessary speculation by the jury and ensure that they

comprehend the possible consequences of a verdict of not guilty

by reason of lack of criminal responsibility -- and in

particular, to understand "what protection they and their fellow

citizens will have if they conscientiously apply the law to the

evidence and arrive at a verdict of not guilty by reason of

[lack of criminal responsibility] -- a verdict which necessarily

requires the chilling determination that the defendant is an

insane killer not legally responsible for his acts."      See

Mutina, 366 Mass. at 821-822.   On reflection, we think an

instruction that omits references to specific time frames for

observation and mentions the potential for successive commitment

     23
       See G. L. c. 123, §§ 7, 8, 15 (b), 15 (e), 15 (f), 16, 18
(a), and 18 (c).
                                                                    27

orders that could span the duration of the defendant's life in a

context that accurately reflects the law governing such

commitments may better accomplish these purposes.    Accordingly,

we propose a provisional instruction along the lines set forth

in an Appendix to this opinion.24

     4.   Instruction on consciousness of guilt.    The defendant

requested that the trial judge omit a jury instruction on

consciousness of guilt because the defense "pretty much

stipulated that [the defendant] committed the homicide" and was

"not contesting it."   The judge denied the request, reasoning

that there was no actual stipulation that the defendant had

committed the homicide, and therefore the burden remained on the

Commonwealth to prove beyond a reasonable doubt that the

defendant did so, and a consciousness of guilt instruction was

therefore pertinent and appropriate.

     On appeal, the defendant's argument is more nuanced.    He

does not contend that a consciousness of guilt instruction

should have been omitted in its entirety but rather that the

judge, in exercising discretion to give such an instruction,


     24
       With the assistance of a committee of trial court judges,
this court currently is reviewing the Model Jury Instructions on
Homicide that were published in 2013. The proposed instruction
set out in the Appendix is a possible form of a revised Mutina
instruction, but we invite the committee to review and, if
appropriate, propose revisions to this proposed instruction.
For the present, upon request by a defendant, a judge should
give the provisional Mutina instruction set forth in the
Appendix.
                                                                     28

committed reversible error in not limiting the jury's

consideration of consciousness of guilt evidence to the issue of

the defendant's mental state at the time of the crime, i.e., his

criminal responsibility or lack thereof.   We do not agree.     As

the trial judge noted, although the defendant did not contest

that he had killed the victim, the Commonwealth was still

required to prove beyond a reasonable doubt that he did so and

the evidence of consciousness of guilt was relevant to this

question.   See Commonwealth v. Lowe, 391 Mass. 97, 108 n.6,

cert. denied, 469 U.S. 840 (1984) (evidence of consciousness of

guilt is relevant to whether homicide occurred).   Cf.

Commonwealth v. Denis, 442 Mass. 617, 624 (2004) (no error for

judge to give identification instruction, although

identification not contested; necessary for Commonwealth to

prove beyond reasonable doubt identification of defendant as

person who committed crime, notwithstanding concessions by

defense at trial).   Moreover, as the defendant's argument on

appeal recognizes, actions taken by the defendant following the

killing of the victim that reasonably could be interpreted to

reflect consciousness of guilt25 were relevant to an assessment

of the defendant's mental state and whether he was criminally

     25
       Such acts included, for example, setting a fire in
Seagull House, arguably seeking to burn evidence of or even burn
down the locus of the killing; wrapping and discarding the
victim's body in a church parking lot removed from the scene of
the killing; stealing and changing into different clothes; and
trying to secure a place to stay with relatives and out of view.
                                                                    29

responsible.   Accordingly, an instruction on consciousness of

guilt was entirely proper in the circumstances of this case.

See Commonwealth v. Cardarelli, 433 Mass. 427, 437 (2001).

    5.   Relief under G. L. c. 278, § 33E.    The defendant argues

that, based on the extensive evidence of his mental illness

presented at trial, this court should exercise its power of

review under G. L. c. 278, § 33E, to reduce the degree of guilt

or order a new trial.    We recognize that the defendant presented

substantial evidence that he lacked criminal responsibility at

the time he killed the victim.   However, the Commonwealth

presented substantial evidence to the contrary.   The jury were

entitled to reject the testimony and opinions of the defendant's

witnesses and instead credit the contrary evidence, including

the opinion of the Commonwealth's expert, and to conclude that

the defendant was criminally responsible.    "Tragic as this case

is, it is a case where the question of criminal responsibility

was truly for the jury, and justice does not require that their

verdict be disturbed."    Johnston, 467 Mass. at 706.   In the

circumstances of this case, based on our careful review of the

trial record, we decline to reduce the degree of guilt, order a

new trial, or grant other relief under G. L. c. 278, § 33E.

                                     Judgment affirmed.
                            Appendix.


                 PROVISIONAL MUTINA INSTRUCTION1

     Consequences of Verdict of Not Guilty by Reason of Lack of
Criminal Responsibility. As I have previously instructed, your
decision should be based solely on the evidence and the law of
this case, without regard to the possible consequences of the
verdict[s]. You may not consider sentencing or punishment in
reaching your verdict[s]. However, I am going to tell you what
happens to a defendant if he [or she] is found not guilty by
reason of lack of criminal responsibility.

     First, the court may order the defendant to be hospitalized
at a mental health facility for a period of observation and
examination. During this observation period or in any event
within sixty days after a verdict of not guilty by reason of
lack of criminal responsibility, the district attorney or other
appropriate authorities may petition the court to commit the
defendant to a mental health facility or to Bridgewater State
Hospital. If the court concludes that the defendant is mentally
ill and that his [or her] discharge would create a substantial
likelihood of serious harm to himself [or herself] or others,
then the court will grant the petition and commit the defendant
to a proper mental facility or to Bridgewater State Hospital,
initially for a period of six months. At the end of the six
months and every year thereafter, the court reviews the order of
commitment. If the defendant is still suffering from a mental
disease or defect and is still dangerous, then the court will
order the defendant to continue to be committed to the mental
facility or to Bridgewater State Hospital. There is no limit to
the number of such renewed orders of commitments as long as the
defendant continues to be mentally ill and dangerous; if these
conditions do continue, the defendant may remain committed for
the duration of his [or her] life.

     If at some point the defendant is no longer mentally ill
and dangerous, the court will order him [or her] discharged from
the mental health facility or from Bridgewater State Hospital
after a hearing. The district attorney must be notified of any
hearing concerning whether the person may be released, and the
district attorney may be heard at any such hearing. However,
the final decision on whether to recommit or release the
defendant is always made by the court.

     1
       See Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12
(1975).
                                                                 2


     This is what happens if you find the defendant not guilty
by reason of lack of criminal responsibility.
