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SJC-13158

COMMONWEALTH vs. JOSEPH W. BEATTY.

Norfolk. March 10, 2023. - May 25, 2023.

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

Homicide. Criminal Responsibility. Practice, Criminal, Capital 

case, Competency to stand trial, Instructions to jury.

Indictments found and returned in the Superior Court 

Department on October 1, 2009.

The cases were tried before Thomas A. Connors, J.

Theodore F. Riordan (Deborah Bates Riordan also present) 

for the defendant.

Pamela Alford, Assistant District Attorney, for the 

Commonwealth.

WENDLANDT, J. The defendant, Joseph W. Beatty, was 

convicted of one count of murder in the first degree on the

theories of deliberate premeditation, extreme atrocity or

cruelty, and felony-murder in connection with the 2009 killing 

of his girlfriend, Mary Beaton (victim), in her Quincy 
2

apartment.1 The defendant admitted to killing the victim, whom 

he strangled and, later, asphyxiated with a pillow; however, he 

contended that, due to his mental condition at the time of the 

murder, he lacked criminal responsibility for her death.

On his direct appeal, the defendant maintains that the 

trial judge abused his discretion in finding the defendant 

competent to stand trial over defense counsel's objections, and 

that the jury instructions concerning the consequences of a 

verdict of not guilty due to lack of criminal responsibility, 

while conforming to the then-applicable model jury instructions, 

were prejudicial. He also asks the court to exercise its 

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

guilt or order a new trial.

Having carefully reviewed the defendant's claims of error, 

as well as the entire record, we affirm the conviction and 

discern no reason to grant relief under G. L. c. 278, § 33E.

1. Background. The following facts are supported by the 

evidence presented at trial.

a. The Commonwealth's case. On August 29, 2009, around 

1:13 P.M., the defendant, his brother, two sisters, and niece 

entered the emergency room at Boston Medical Center. The 

defendant was wearing a "raggedy" yellow T-shirt, which was 

1 He also was convicted of one count of aggravated rape in 

violation of G. L. c. 265, § 22 (a).
3

covered in blood. He had blood around his neck and wrist, and 

cuts to his wrist and hands.

At the hospital, the group approached uniformed Boston 

police Officer Daniel Quintiliani. The defendant's brother told 

Quintiliani that he needed to speak with the officer because the 

defendant "did a bad thing." Quintiliani asked the defendant

what he had done. The defendant replied, "I strangled a girl in 

her apartment." The defendant provided Quintiliani with the 

victim's name and her address in Quincy. Upon request for 

identification, the defendant produced his own driver's license 

and an identification card in the victim's name. Quintiliani 

radioed dispatch to request a well-being check on the victim. 

The defendant appeared calm, and Quintiliani had no difficulty 

speaking with him. The defendant's brother removed a knife from 

the defendant's pocket and gave it to Quintiliani.

Thereafter, the defendant entered the hospital's triage

unit. When a nurse asked him why he was there, the defendant 

answered that he had strangled his friend after an argument over 

finances. The defendant denied experiencing visual or auditory 

hallucinations and noted that he was a kidney transplant 

recipient. He also reported that he had experienced suicidal 

ideation.

Quintiliani's partner, Boston police Officer Daniel 

Korenetsky, who had arrived at the triage area, provided Miranda 
4

warnings to the defendant;2 the defendant indicated that he 

understood and proceeded to ask Korenetsky whether police had 

found the victim. Korenetsky answered in the negative, to which 

the defendant replied, "[T]hey're going to have to kick the door 

in." A short time later, Quintiliani learned that Quincy police 

had found the deceased victim's body in her apartment.

At 1:29 P.M., shortly after Korenetsky had provided the 

defendant with Miranda warnings, Boston police Detectives Joseph 

Leeman and Daniel MacDonald arrived at the triage area. The

detectives identified themselves and asked the defendant what 

had happened. The defendant told them that, between 5 P.M. and

5:30 P.M. the prior day, he "just snapped" and choked his 

girlfriend at her apartment. At that point, Leeman and 

MacDonald stopped the conversation, provided Miranda warnings to 

the defendant, and handcuffed him. The defendant said that he 

understood his rights and wanted to speak to the officers; 

MacDonald left to get a tape recorder. By 1:43 P.M., Boston 

police Detective Daniel Keeler arrived at the hospital; he also 

recited the Miranda warnings to the defendant. Five minutes 

later, MacDonald returned from the police station with a tape 

recorder.

2 When his brother offered to get the defendant a lawyer, 

the defendant replied, "What do I need a lawyer for, to get 

eighty years instead of a hundred years?"
5

The defendant told the officers that on the day of the 

killing, he went to the victim's apartment, where they drank a 

couple of beers, shared a valium pill, and argued about money. 

In particular, the victim was disappointed that they could not 

afford a trip to Las Vegas; she informed the defendant that she 

needed $500 for rent and proposed a less expensive trip to New 

York. At that point, the defendant "just snapped." He grabbed 

the victim's throat and began to strangle her; when she fell to 

the floor, the defendant "had sex" with the victim and carried 

her into the bedroom. The defendant saw white foam coming from

the victim's lips, after which he covered her face with a pillow

until she stopped breathing. The defendant placed a cross on 

the victim, placed crucifixes on both sides of her body, put her 

underwear on her, and covered her with a blanket. Before 

leaving the apartment, the defendant took knives to "take care 

of himself."

The defendant visibly was upset as he spoke; he added that 

"my brain was just doing what it was doing; I had no control 

over it." In response to a question by police that he had to be 

angry, the defendant stated: "[Y]eah, I know but I don't know 

what made me angry. . . . I've never had that anger in my 

life." After a psychiatric resident evaluated the defendant and 

determined that he did not require inpatient care, the defendant 

was released to police custody.
6

i. Defendant's activities before and after killing. A few 

days before the killing, between August 26 and August 28, 2009, 

the defendant was at Foxwoods Casino with one of his sisters, 

his niece, and four of his niece's children. On the morning of 

August 28, the last day of the trip and the day of the murder,

the defendant, "distraught" and crying, told his sister that he 

had been molested as a child by a neighbor.3 The family left the 

casino shortly thereafter. The defendant drove two of his 

niece's children in his van. His sister had no concerns about 

his driving.

Later that day, at around 8:30 P.M., approximately three 

hours after killing the victim, the defendant stopped at his 

niece's home to bring her a cup of coffee. His niece noticed 

that the defendant had a red mark on the side of his head. When 

she asked the defendant what had happened, he replied that he 

had slipped and fallen against his van.

The next morning, August 29, 2009, at around 8 A.M., the 

defendant called his niece and told her to tell the family that 

he loved them. Later that morning, the defendant called one of 

his sisters and told her that he was at their mother's favorite 

place, which his sister knew was a reference to Castle Island in 

3 The defendant later told police that he made this 

statement due to paranoia, flashbacks, suicidal thoughts, and 

other functional impairments he suffered because of surgery in 

June 2009 to remove most of his parathyroid glands.
7

the South Boston section of Boston. Fearing that the defendant

intended to commit suicide, the defendant's two sisters and his 

niece drove to Castle Island but could not locate the defendant.

While searching, the group received a telephone call from 

the defendant. He agreed to meet his sisters and niece outside 

a restaurant in the South End section of Boston, across the 

street from Boston Medical Center. The three women arrived at

the meeting place, where they were joined by the defendant's

brother. Shortly thereafter, the defendant appeared. His

sister testified that he looked "crazed," "disheveled," and 

"distraught"; his niece testified to seeing red marks on the 

defendant's neck and wrists.

On seeing his family, the defendant told them that he "did 

a bad thing," a phrase he repeated about twenty-five times. The 

group escorted the defendant across the street to the hospital,

and, as discussed supra, they encountered Quintiliani.

ii. Victim's apartment. Quincy police responded to the 

victim's apartment shortly after 1 P.M. on August 29, 2009; the 

victim was found naked under a blanket on the bed, deceased.4

4 At trial, first responders testified that they found the 

victim's body covered by a sheet, wearing an ornamental gold 

cross, and flanked by two crucifixes. These descriptions 

differed from the account provided by the defendant in the 

triage area in only one respect: the defendant told officers 

that he placed the victim's underwear on her before leaving, 

whereas the first responders testified that they found the 

victim in a state of total undress.
8

She had red scratches on her neck. Her soiled clothing lay on 

the floor near the bed.

The victim's underpants and vaginal and oral swabs 

contained sperm, and deoxyribonucleic acid (DNA) testing 

indicated that the defendant's DNA was consistent with the DNA 

mixtures from these samples. Additionally, a swab of the 

victim's neck produced a DNA mixture consistent with the 

defendant's DNA.

A medical examiner testified that the victim had petechial 

hemorrhages in her face, eyelids, and mouth; there were

hemorrhages in her neck muscles, and her hyoid bone was broken. 

The examiner concluded that the cause of death was asphyxia by 

strangulation.

b. The defendant's case. The defense at trial was lack of 

criminal responsibility. Against the advice of counsel, the 

defendant testified regarding the events leading to and on the 

day of the murder.

The defendant testified that he had a kidney transplant in 

2002 and surgery to remove most of his parathyroid glands in 

June 2009. Both before and after that surgery, he was 

forgetful, tired, confused, and doing "weird things," such as 

stealing a check from a neighbor so that he could visit a 

relative in California. On the day of the murder, while at 

Foxwoods Casino, the defendant heard voices in his head. The 
9

voices made threats and commanded him to jump out a window at 

the casino. He had no control over his "subconscious brain"; 

moreover, he was experiencing paranoia, such as believing that 

the driver of a pickup truck threatened to kill him for cashing 

stolen checks.

The defendant stated that his delusions and paranoia 

culminated at the victim's apartment, where, following an 

argument over finances, voices in his head prompted him, asking, 

"[W]hat are we going to do about her?" In a state of "rage," he 

rushed the victim, strangled her to death, and dragged her body 

into the bedroom to have sex with her. The defendant testified 

that he had no intention of killing the victim, but that his 

mind was "in outer space"5 during the killing.6 The only times 

that he heard loud voices after his surgery was while at 

Foxwoods Casino and at the victim's apartment.

5 The defendant added that he was "in a zone that [he had] 

never been in in [his] life before, in a zone [he did not] wish 

on anybody."

6 The defendant's trial testimony conflicted with the 

account he gave officers at the hospital in several respects. 

For example, when provided with transcript pages where he 

previously stated that the victim proposed that they go to New 

York instead of Las Vegas, the defendant denied that she ever 

made that suggestion. The defendant also denied that the victim 

requested $500 to pay rent. When asked to explain these 

differences, the defendant claimed that his "subconscious brain" 

told him to say these things to police at the hospital.
10

Dr. Charles Carroll, a psychologist and the director of 

forensic services and psychology at Bridgewater State Hospital, 

testified for the defense. Carroll had evaluated the defendant 

in November 2013 and opined that he had schizoaffective 

disorder.7 Carroll also noted that the defendant was prone to 

having delusions concerning his medical conditions, such as 

worrying that he was losing salt through his spine, causing 

dehydration, or that he was exposed to mercury and zinc fumes 

having lived above a television repair shop. Carroll offered no 

opinion as to whether the defendant's mental disease made him 

unable to appreciate the criminality or wrongfulness of his 

conduct at the time of the murder.

c. Rebuttal. Dr. Michael Annuziata, a psychiatrist,

testified for the Commonwealth. He opined that the defendant 

had no significant psychiatric disorder, showed no signs of 

auditory hallucinations, and possessed adequate intellectual 

functioning. Annuziata opined that the defendant had no mental 

7 "Schizoaffective disorder is a mental health disorder that 

is marked by a combination of schizophrenia symptoms, such as 

hallucinations or delusions, and mood disorder symptoms, such as 

depression or mania." Schizoaffective Disorder, Mayo Clinic, 

https://www.mayoclinic.org/diseases-conditions/schizoaffectivedisorder/symptoms-causes/syc-20354504 [https://perma.cc/2X8DKP2E]. Carroll also testified that, when he first evaluated the 

defendant in 2010, he did not see any psychotic component to his 

diagnosis.
11

disease or defect at the time of the murder and, consequently, 

was able to recognize the wrongfulness of his conduct.

d. Procedural history. The defendant was indicted in 

October 2009 on one count of murder in the first degree in 

violation of G. L. c. 265, § 1, and one count of aggravated rape 

in violation of G. L. c. 265, § 22 (a). For approximately the 

next three years, the defendant would alternate between pretrial 

detention at a house of correction and commitment at Bridgewater 

State Hospital pursuant to G. L. c. 123, § 18 (a). In 

July 2010, the defendant, while awaiting trial, attempted to 

harm himself. He was sent to Bridgewater State Hospital for a 

thirty-day evaluation. At the conclusion of the evaluation, 

Carroll opined that the defendant had major depressive disorder 

with no psychotic component. Following an evidentiary hearing, 

held in February 2012, the defendant was found not competent to 

stand trial.

The defendant was evaluated at Bridgewater State Hospital 

for a second time in October 2013; Carroll diagnosed the 

defendant with schizoaffective disorder presenting in the form 

of psychotic delusions and paranoia. At a December 2013

hearing, a judge again found the defendant not competent.

On July 7, 2014, following a hearing, the judge found the 

defendant competent to stand trial. In September 2015, the 

judge committed the defendant to Bridgewater State Hospital, 
12

pursuant to G. L. c. 123, § 18 (a), because he "require[d] 

hospitalization at [that] time . . . rather than await trial in 

a jail setting." The judge agreed to a second commitment order

pursuant to § 18 (a) on June 10, 2016, and a third on July 31, 

2017.

On February 1, 2018, the judge again found the defendant 

competent to stand trial. A jury trial commenced on 

February 27, 2019. At several points during trial, defense 

counsel raised the possibility that the defendant was 

incompetent to stand trial. Each time, the judge ordered a 

competency evaluation and determined that the defendant was 

competent.

On March 18, 2019, the jury found the defendant guilty on 

both counts. As to the count of murder in the first degree, the 

jury found the defendant guilty on the theories of deliberate 

premeditation, extreme atrocity or cruelty, and felony-murder. 

The defendant was sentenced to life without parole and ordered 

to serve a concurrent sentence of from twenty-five to thirty

years on the rape count. The defendant filed a timely notice of 

appeal.

2. Discussion. On appeal, the defendant maintains that

the judge abused his discretion in finding the defendant 

competent to stand trial over defense counsel's objections that 

he was unable to work with his client, that the judge should 
13

have modified the jury instruction as to the consequences of a 

verdict of not guilty by reason of lack of criminal 

responsibility -- the so-called Mutina jury instruction8 –- to 

comport with Commonwealth v. Chappell, 473 Mass. 191 (2015), and 

that we should exercise our authority under G. L. c. 278, § 33E, 

to reduce the defendant's convictions or grant a new trial. We 

address each argument in turn.

a. Determination of defendant's competency to stand trial. 

The defendant first contends that the judge abused his 

discretion in finding the defendant was competent to stand trial 

despite defense counsel's representations that the defendant was 

unable to communicate with counsel with the requisite degree of 

rational understanding and that he did not seem to understand 

the proceedings against him.

For a criminal defendant to be deemed competent to stand 

trial, a judge must find, at the time of trial, that the 

defendant (1) "has sufficient present ability to consult with 

his lawyer with a reasonable degree of rational understanding" 

and (2) "has a rational as well as factual understanding of the 

proceedings against him." Commonwealth v. Russin, 420 Mass. 

8 As discussed in further detail infra, a Mutina instruction 

is a jury instruction setting forth the consequences of a 

verdict of not guilty by reason of lack of criminal 

responsibility. See Commonwealth v. Mutina, 366 Mass. 810, 823 

& n.12 (1975).
14

309, 317 (1995), quoting Dusky v. United States, 362 U.S. 402, 

402 (1960). See Commonwealth v. Dias, 402 Mass. 645, 647-648 

(1988) (same). "The fact that a defendant suffers from . . . 

some form of mental illness does not, by itself, mean that he is 

unable to work with his attorney." Commonwealth v. Goodreau, 

442 Mass. 341, 351 (2004).

The Commonwealth bears the burden of proving the 

defendant's competency by a fair preponderance of the evidence. 

Commonwealth v. Prater, 420 Mass. 569, 573-574 (1995). We 

review a trial judge's determination that a defendant is 

competent to stand trial for an abuse of discretion. See 

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

In determining whether a defendant is competent, a judge 

may consider, inter alia, "the defendant's demeanor and behavior 

at the trial, reports of psychiatric examinations of the 

defendant, statements to the judge about the defendant's conduct 

and mental condition, and the testimony of expert witnesses at 

the trial about the defendant's conduct and condition." 

Commonwealth v. Hill, 375 Mass. 50, 54-55 (1978). Weight must 

be given to a judge's own observations of a defendant's demeanor 

and behavior, with the observations made closest to or during 

trial being the "most appropriate" in determining competency. 

Commonwealth v. Jones, 479 Mass. 1, 14 (2018).
15

i. Defense counsel's representations and judge's 

responses. On the first day of trial, defense counsel raised 

several concerns regarding the defendant's competency; namely, 

that the defendant did not understand the difference between a 

jury trial and a plea, that he was too deferential to counsel's 

trial strategy, and that he held an unrealistic belief that 

trial would last a single day. The judge ordered a competency 

evaluation.

After interviewing the defendant and reviewing prior 

competency records, a court forensic psychologist, Dr. Heather 

Jackson, indicated that the defendant accurately identified the 

parties and charges against him, possible dispositions, and 

described how he wanted to proceed. The defendant also 

understood that trial would last longer than one day and was 

able to explain what the trial process would entail. Jackson 

opined that the defendant was not "experiencing any significant 

deficits of his competency-related abilities within his factual 

or rational understanding" or exhibiting severe symptoms of 

mental illness; she did not recommend further evaluation.

Following Jackson's report, the judge made findings that 

the defendant met both the functional and cognitive prongs of 

the Dusky test: "[The defendant] is able to have a rational 

understanding of what is occurring[,] and he is also able to 

identify the various participants in his trial process . . . and 
16

is able to communicate with counsel." See Dusky, 362 U.S. at

402. As to defense counsel's representation that the defendant

harbored an unrealistic view that trial would last one day, the 

judge credited Jackson's representation that the defendant no 

longer held that belief and that, contrary to defense counsel's 

earlier representation, the defendant was not agreeing "just for 

the sake of agreeing with her." The judge noted defense 

counsel's objection and began empanelling the jury.

On the second day of trial, defense counsel raised further 

concerns; specifically, the defendant requested new counsel and 

claimed that the court room-provided water was affecting his 

medication.9 The judge tabled the matter and continued with jury 

empanelment. By the end of the day, the defendant withdrew his 

request for new counsel, and following a discussion, the judge 

resolved the defendant's issue with his water by asking him to 

consult with the jail medical staff. The judge also noted his 

observation that defense counsel had been interacting with his 

client during empanelment. During this discussion, defense 

counsel raised two additional concerns: first, that the 

defendant was fixating on medical records related to what 

counsel considered to be a nonviable defense; and second, that 

9 Jackson later confirmed that, while the defendant was not 

taking psychiatric medications, he was taking medication for his 

kidney transplant.
17

the defendant was insisting that there were "some outstanding 

phone records" that were in the possession of the Boston Red 

Sox.

To address counsel's ongoing concerns, the judge delayed 

the start of the third day of trial to allow Jackson to examine 

the defendant again.10 Following an hour-long evaluation, 

Jackson reported that the defendant continued to have a factual 

understanding of court proceedings, expressed a preference 

regarding how he wanted to proceed, and was not demonstrating 

serious deficits in his ability to rationally work with counsel. 

Moreover, Jackson noted that the defendant denied auditory 

hallucinations and was able to answer her questions clearly and 

coherently. The defendant also was able to explain that the 

missing telephone records concerned a "flip" cell phone with a 

Red Sox sticker, not the baseball club.

Regarding the suicidal thoughts that the defendant had been 

experiencing that morning, Jackson noted that he lacked any 

immediate plans to harm himself. Jackson was in contact with 

medical personnel at the house of correction, who were following 

the case and the stress it caused the defendant; she also 

learned that "two or three" of the defendant's prior G. L. 

10 As part of her second evaluation, Jackson reviewed 

Bridgewater State Hospital reports from 2010 to 2017, her notes 

from the previous evaluation, and contacted the house of 

correction where the defendant was then being held.
18

c. 123, § 18 (a), commitments stemmed from suicidal ideation, 

not psychotic symptoms.

Jackson opined that the defendant was competent to stand 

trial and did not recommend further evaluation. The following 

exchange ensued:

Defense counsel: "Your honor, [the defendant] is suicidal, 

diagnosed with a serious mental illness. He's unmedicated 

for a couple of years now. He's not able to help me with 

his case."

The judge: "I have no evidence of that, sir. You can't 

make argument that you -- injecting facts."

. . .

Defense counsel: "I'm asking the court as the factfinder 

to infer that given all of the circumstances that you 

gathered thus far, your Honor, that [the defendant is] not 

someone that I can work with."

The judge found that the defendant was competent to stand trial.

The judge explained that, in finding the defendant competent, he 

was relying on the following: first, the court clinician twice 

found the defendant to be competent in the span of three days; 

second, the defendant indicated a readiness to work with his 

counsel; third, suicidal ideation is not tantamount to lack of 

competency; and fourth, some of the defendant's most recent 

G. L. c. 123, § 18 (a), commitments were attributable to 
19

suicidal thoughts, not his diagnosed condition of 

schizoaffective disorder.11

At the end of the sixth day of trial, the judge noted that 

the defendant and defense counsel had conferred with each other 

as evidence was introduced. On the morning of the seventh day 

of trial, the judge again observed that the defendant had been 

an active participant throughout trial.12 Later that day, during 

discussion of the sexual assault kit, defense counsel requested 

a sidebar and informed the judge that the defendant had ceased 

communicating with him, adding, "I don't think he's physically 

doing okay now." The judge excused the jury for the day. The 

parties discussed the defendant's mental state; the judge 

acknowledged that the defendant "had a somewhat different affect 

. . . than he ha[d] had through all of the earlier portions of 

the trial."

11 See Commonwealth v. Laurore, 437 Mass. 65, 79 (2002) 

("Even an entirely rational defendant would be depressed, and 

might be suicidal, during a murder trial where the proof against 

him is substantial, and where he is facing life imprisonment"); 

Commonwealth v. Lameire, 50 Mass. App. Ct. 271, 277 (2000) 

(claimed suicide attempt during trial did not preclude judge's 

finding of competency).

12 The judge observed, "For the record, the court has 

observed throughout the trial that [the defendant] has 

interacted, that he has been alert, he has been watching the 

screen when exhibits have been up. He has been interacting and 

speaking with counsel throughout the trial."
20

The judge requested the assistance of a court room

clinician, and Dr. Leah Robertson joined the parties. Robertson 

examined the defendant. She reported that the past week, which 

featured significant video evidence of the victim and the crime 

scene, had been stressful for the defendant, that the 

defendant's thoughts had kept him awake the previous night, and 

that the defendant was tired, distracted, and having difficulty 

focusing. Without opining as to his competency, Robertson

recommended that the defendant be sent to Bridgewater State 

Hospital for observation and treatment. The judge ordered the 

defendant committed pursuant to G. L. c. 123, § 18 (a).

Following a weekend break, the defendant returned to court 

on the next trial date, at which point the judge was given 

medical reports opining that the defendant was medically stable;

defense counsel shared his observations of the defendant's 

difficulty focusing that morning. During a mid-morning break, 

the judge clarified that he had reviewed Carroll's 2015 report, 

a 2017 report from a court clinician, and prior counsel's motion 

to withdraw. The judge made findings:

"The [c]ourt does not see any difference between what is 

occurring now and what's consistently been occurring all 

along, which is that [the defendant] has complained about 

voices which are characterize[d] sometimes as negative 

thoughts. They have not seemed to intrude at all, and, in 

fact, Dr. Carroll raised significant questions about 

whether or not they were legitimate. . . . [W]hile there 

was a period of incompetency some time ago, the recent[] 

[reports] have all come back that he's competent."
21

The trial continued. On the ninth day of trial, the judge 

observed that the defendant "was engaged with counsel several 

times, was conferring with counsel several times," and had taken 

notes when a witness testified. On the tenth day of trial, the 

defendant testified. At the conclusion of his testimony, the 

judge stated that the defendant responded normally to the 

questions asked; in addition, the judge noted that the defendant 

"has shown his functionality through this trial," and "[e]ven if 

his counsel may feel that [testifying] was not the most prudent 

choice that he had[,] that was his choice under the law."

At sentencing, the judge referenced his previous 

observations and stated that he had "no question" about the 

defendant's competency throughout the proceedings.

ii. No abuse of discretion. As set forth supra, the judge 

made multiple determinations regarding the defendant's 

competency over the course of the trial. In doing so, the judge 

considered the testimony of court clinicians, psychiatric 

evaluations, his own observations of the defendant's behavior, 

and statements from defense counsel about the defendant's 

"conduct and mental condition." Hill, 375 Mass. at 54-55. 

Significantly, the judge made these determinations during the

trial, see Jones, 479 Mass. at 15 ("Because competency may be 

fluid . . . it is most significant that the defendant was found 
22

competent in a hearing during the trial" [emphasis added]), with 

the benefit of contemporaneous psychiatric evaluations.

Contrary to the defendant's argument that the judge ignored 

defense counsel's concerns, as set forth supra, with every 

concern raised by counsel, the judge responded by seeking the 

assistance of medical experts, reviewing the defendant's mental 

health history, and sending the defendant to Bridgewater State 

Hospital for further evaluation when it became necessary.

Additionally, the judge actively monitored the defendant's 

ability to communicate with and assist his lawyer,13 scanning for 

manifestations of incompetency as the trial progressed.14 See 

Dusky, 362 U.S. at 408. See also Commonwealth v. Chatman, 473 

Mass. 840, 847-848 (2016). The judge properly considered the 

13 For example, when the defendant indicated that he wanted 

to testify against the advice of counsel, the judge engaged him 

in a conversation about his knowledge of the right to testify in 

his defense. The defendant responded, "Right. [My lawyer] 

didn't tell me the laws about [testifying,] but he said that was 

my right if I wanted to or not to and he said it was best for me 

not to testify."

14 Contrary to the defendant's argument, the judge did not 

base his findings solely on his own observations. The record 

shows that the judge's comments regarding the observed working 

relationship between counsel and client was one data point, 

among many, used to evaluate competency. In fact, the judge's 

comments postdated two separate evaluations of the defendant, 

conducted by the court room clinician. See Commonwealth v. 

Companonio, 445 Mass. 39, 50 (2005), S.C., 472 Mass. 1004 (2015)

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

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

trial" [citation and quotation omitted]).
23

expert opinions of Jackson and Robertson, the staff of

Bridgewater State Hospital, psychiatric reports dating back to 

2014, and his own observations at trial, when considering 

defense counsel's representations as to the defendant's 

behavior. See Commonwealth v. Gibson, 474 Mass. 726, 738 (2016) 

(judge not required to credit defense counsel's unsupported 

claim of incompetency); Commonwealth v. Vailes, 360 Mass. 522, 

524 (1971) (judge entitled to rely on recent "psychiatric 

report[s] as one of the elements bearing on the issue of the 

defendant's competenc[y]").15

In sum, the judge did not abuse his discretion in finding 

the defendant competent to stand trial.

b. The Mutina instruction. The defendant next argues that 

the judge erred by instructing the jury on the consequences of a 

verdict of lack of criminal responsibility as set forth in the 

Model Jury Instructions on Homicide (2018). The defendant 

maintains that all references to commitment time should have 

15 The judge referenced the 2015 report by Carroll ("[I]n my 

opinion, [the defendant] currently has a full factual and 

rational understanding of the proceedings against him"), and the 

2017 report by court clinician Dr. Frederick Kelso ("[I]n my 

opinion [the defendant] is now competent to stand trial"). See 

Vailes, 360 Mass. at 524. Moreover, on the third day of trial, 

the judge learned that several of the defendant's pretrial 

hospitalizations were for suicidal ideation, not his 

schizoaffective disorder. See Goodreau, 442 Mass. at 351-352 

(defendant's suicidal ideation prior to plea "does not cast 

doubt on the opinion that he was competent").
24

been omitted from the instruction to avoid suggesting that the 

defendant could be released following a brief stay in a mental 

hospital.

A Mutina instruction is a jury instruction that outlines 

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

criminal responsibility. See Commonwealth v. Mutina, 366 Mass. 

810, 823 & n.12 (1975). Its function at the end of trial is

"to avoid unnecessary speculation by the jury and ensure 

that they . . . 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.'"

Chappell, 473 Mass. at 206, quoting Mutina, 366 Mass. at 822.

Prior to this court's decision in Chappell, the Mutina

instruction mentioned two time periods. First, it explained 

that if a defendant were found not guilty by reason of a lack of 

criminal responsibility, the judge could order the defendant 

hospitalized at a facility for a period of forty days for 

observation and examination (observation period). Second, the 

instruction noted that, if a defendant remained mentally ill and 

discharge would create a substantial likelihood of serious harm 

to the defendant or others, then the defendant could be 

committed to a mental health facility for six months (commitment 
25

period). See Model Jury Instructions on Homicide 11-12 (2013); 

Commonwealth v. Waweru, 480 Mass. 173, 188 (2018).

The model Mutina instruction, as outlined supra, 

"underestimate[d] the potential . . . length of confinement of a 

defendant found not criminally responsible" in the minds of 

jurors. Chappell, 473 Mass. at 205. See Commonwealth v. 

Johnston, 467 Mass. 674, 701-702 (2014) (judge did not err in 

refusing to provide defendant's proposed addition to model jury

instructions that "he could spend the rest of his life in a 

locked facility"). Accordingly, the court in Chappell proposed 

a provisional instruction that (1) omitted reference to the 

observation period and (2) clarified that the commitment period, 

subject to the court's review, could be indefinite: "we think 

an instruction that omits references to specific time frames for 

observation and mentions the potential for successive commitment 

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

. . . may better accomplish the[] purpose[]" of the Mutina

instruction. Chappell, 473 Mass. at 206. The 2018 revisions to 

the model jury instructions reflect the Mutina instruction 

proposed by the court in Chappell. See Model Jury Instructions 

on Homicide 11-12 (2018).

In the present case, the defendant asked the judge to omit

not only the observation period, but also the six-month 
26

commitment period from his instructions.16 The defendant 

contends that the rationale for omitting reference to the fortyday observation period applies with equal force to the six-month 

initial commitment period. As set forth supra, however, the 

court in Chappell considered two periods of confinement –- an 

observation period and a commitment period; the court 

recommended omission of the former, not the latter. Chappell, 

473 Mass. at 206. We see no reason to modify that conclusion.

Here, the judge instructed the jury using language 

virtually identical to the Mutina instruction from the 2018 

Model Jury Instructions on Homicide:

"If the court concludes that the defendant is mentally ill, 

and that his discharge would create a substantial 

likelihood of serious harm to himself or others, then the 

court will grant the petition and the defendant will be 

committed to a proper mental facility or Bridgewater State 

Hospital initially for a period of six months. At the end 

of that six months, and every year thereafter, the court 

will review the order of commitment. . . . There is no 

limit to the number of such renewed orders of commitment 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 life."

16 The defendant proposed the following alterations to the 

Mutina instruction set forth in the model instructions

(underlined text are additions, strikethroughs are deletions):

"If the court concludes that the defendant is mentally ill 

and that his discharge would create a substantial 

likelihood of serious harm to himself 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 The court will 

periodically reviews the order of commitment."
27

This was not error.17 See Commonwealth v. Bonner, 489 Mass. 268, 

285 (2022), quoting Commonwealth v. Howard, 479 Mass. 52, 61 

(2018) ("we have urged trial judges to adhere to the Model Jury 

Instructions on Homicide, and to 'proceed with caution' when not 

doing so"); Green, petitioner, 475 Mass. 624, 629 (2016) 

("Instructions that convey the proper legal standard, 

particularly when tracking model jury instructions, are deemed 

correct"). See also Commonwealth v. Aduayi, 488 Mass. 658, 675-

676 (2021) (judge did not err in giving pre-Chappell Mutina

instruction where judge employed model jury instruction 

applicable at time of defendant's trial).18

c. Review under G. L. c. 278, § 33E. We recognize that 

the defendant presented substantial evidence that he lacked 

criminal responsibility at the time he killed the victim. 

17 Although the defendant sought to modify the Mutina

instruction to address the concern that the jury might believe a 

long-term or lifetime commitment was precluded by a verdict of 

lack of criminal responsibility, the portion of the instruction 

stating expressly that the defendant could be committed for his 

lifetime was provided. See Chappell, 473 Mass. at 205.

18 The defendant's reliance on Aduayi is misplaced. There, 

we affirmed a conviction of murder in the first degree although 

the trial judge included time frames of observation and 

commitment in his instruction on lack of criminal 

responsibility. Aduayi, 488 Mass. at 673-674. In doing so, we 

noted that the defendant's trial predated our decision in 

Chappell, and consequently, the defendant was not entitled to 

the benefit of the modified instruction, which was prospective 

only. Id. at 675.
28

However, the Commonwealth presented substantial evidence to the 

contrary. The jury were entitled to reject the testimony and 

opinions of the defendant and his expert and instead to credit 

the contrary evidence, including the opinion of the 

Commonwealth's expert. In short, the jury were entitled to 

conclude that the defendant was criminally responsible. See 

Johnston, 467 Mass. at 706 ("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"). Based on our careful review of the entire record, 

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

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

Judgments affirmed.