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SJC-11569

COMMONWEALTH vs. CRAIG MULGRAVE.

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

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

Homicide. Evidence, Spontaneous utterance, Expert opinion, 

Impeachment of credibility, Cumulative evidence, Relevancy 

and materiality. Witness, Expert, Impeachment. Mental 

Impairment. Practice, Criminal, Capital case, Instructions 

to jury.

Indictment found and returned in the Superior Court 

Department on April 2, 2010.

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

Robert S. Sinsheimer (Lisa Parlagreco with him) for the 

defendant.

David F. O'Sullivan, Assistant District Attorney, for the 

Commonwealth.

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

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

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

of his wife, Christina Mulgrave.

1 On appeal the defendant 

asserts that the judge erred in certain evidentiary rulings that 

violated his right to due process under the United States 

Constitution and the Massachusetts Declaration of Rights:

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

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

Commonwealth leave to present general evidence that the 

defendant made statements, which previously were suppressed, to 

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

excluding the proffered testimony of a defense expert witness. 

The defendant also argues error in the jury instructions on 

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

evidentiary rulings or instructions to the jury. We decline to 

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

affirm the defendant's convictions.

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

could have found the following facts. The defendant and the 

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

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

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

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

 

1 The Commonwealth also had proceeded under a theory of 

deliberate premeditation, but the jury did not find the 

defendant guilty under that theory.
3

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

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

The victim's sister and son testified that the defendant 

was depressed and frustrated that he was unable to find 

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

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

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

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

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

expressed her difficulties with the marriage and asked the 

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

defendant responded by also expressing his unhappiness in the 

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

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

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

"make this right."

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

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

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

testified that the defendant left the house during the party and 

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

home to find the defendant unconscious and lying on the floor 

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

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

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

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

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

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

during which time the defendant never responded or acknowledged 

their presence. Evan testified that the defendant "drank a

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

handwritten note expressing his disapproval.

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

interview at Lowell General Hospital and, thereafter, went to 

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

sister about the incident the prior evening. The sister asked 

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

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

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

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

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

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

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

frantically reported that her husband was stabbing her.

A sergeant with the Haverhill police department arrived at 

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

the sergeant entered the walkway to the apartment building, he 

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

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

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

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

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

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

The defendant was standing at the door to the apartment he 

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

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

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

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

motioned toward the office in the front of the apartment.

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

the floor in a pool of blood. Emergency medical technicians 

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

breathing. The first attempt to ventilate the victim was 

unsuccessful because air from a breathing tube placed through 

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

second tube was inserted directly into the stab wound and down 

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

victim, they transported her to Merrimack Hospital, where she 

was pronounced dead shortly after arrival.

An autopsy revealed twelve stab wounds, twelve incise 

wounds, and miscellaneous blunt force injuries. Of the stab 

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

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

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

in her neck penetrated her trachea. The medical examiner who 

performed the autopsy testified that the specific cause of death 

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

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

scene analyst who inspected the apartment testified that the 

location of the blood inside the office demonstrated that the 

victim was upright when some of the stab wounds were inflicted 

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

wounds were inflicted. The knife that the defendant was holding 

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

defendant's fingerprint on the handle.

The defendant was arrested at the scene and taken to the 

Haverhill police station. He was wearing the same clothes as 

during the incident the prior evening and the string was still 

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

the defendant testified that the defendant had no alcohol odor, 

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

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

and several prescription medication bottles containing pills 

were seized from the apartment after the stabbing.

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

to murder in the second degree but argued that depression 
7

rendered him incapable of the elevated mental state required for 

murder in the first degree. He introduced the testimony of 

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

experience working with depression and explained the various 

stressors that could worsen depression symptoms. Specifically, 

the experts noted that unemployment, cultural transition, and 

breakdown of a marriage can intensify depression. The 

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

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

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

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

looked like a failure if he had returned to Jamaica.

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

psychiatrist, did not interview the defendant but explained that 

depression is an imbalance in brain chemicals that can cause 

unusual brain function, especially when triggered by stressors. 

Two additional experts interviewed the defendant multiple times 

and diagnosed him with a major depressive disorder at the time 

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

psychologist, and Elizabeth Davis, a psychiatrist, opined that 

the defendant lacked the capacity to deliberately premeditate or 

to act with extreme atrocity or cruelty because of his 

depression.
8

Doctors Joss and Davis reviewed the defendant's medical 

records from before the stabbing, which showed that the 

defendant was diagnosed on December 22, 2009, with depression 

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

record of the appointment references tearfulness, suicidal 

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

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

apartment, the defendant was not taking this medication as 

directed, rendering the drug ineffective in ameliorating his 

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

observed that the defendant appeared depressed, weary, and 

without much energy. Doctor Joss opined that the defendant was 

not faking depression because his prearrest medical records were 

consistent with his symptoms after the stabbing.

Doctors Joss and Davis testified that they would have 

considered immediate psychiatric hospitalization of the 

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

evening before the stabbing. The defendant told the experts

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

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

the defendant's actions on the night before the stabbing 

 

2 These statements were not admitted for their truth but 

only as information on which the experts based their opinions.
9

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

attempt."

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

Commonwealth called Martin Kelly, a psychiatrist who evaluated 

the defendant and reviewed medical records, including the 

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

defendant did not suffer from any mental defect or disease at 

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

reactive depression. He described situational or reactive 

depression as a psychological condition, not a mental disease. 

He further explained that this condition is time limited and

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

relationship, unemployment, or cultural adjustment.

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

granted the defendant's motion to suppress statements made to 

police shortly after booking. The motion judge concluded that 

the statements were made in violation of the Fifth Amendment to 

the United States Constitution and art. 12 of the Massachusetts 

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

to introduce evidence, through cross-examination of a police 

officer, that he was silent and noncommunicative during booking

as a factor demonstrating diminished capacity. The Commonwealth 

argued that such testimony would open the door to allow the 

suppressed statements to be admitted. The trial judge noted 
10

that the purpose of the rebuttal would be to show the 

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

truth of the statements, and indicated that he would be 

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

Commonwealth to introduce evidence about the number of questions 

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

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

content of the statements, would be admitted. The defendant 

declined to introduce the evidence in light of that ruling.

The defendant also sought to introduce the testimony of a 

fourth medical expert, William Alan Stuart, an emergency 

medicine physician. The defendant intended to have Dr. Stuart 

testify to the effects of combining Celexa and alcohol and that 

the defendant's actions the night before the stabbing 

constituted a suicide attempt. Further, this proposed testimony 

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

commenced an involuntary commitment if he had been aware of the 

events occurring the evening before the stabbing.

After conducting a voir dire, the judge denied the 

defendant's request to introduce testimony from this expert. 

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

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

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

proposed testimony had only limited relevancy, because the jury 
11

could infer that the defendant was suicidal without expert 

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

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

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

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

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

the defendant on the evening before the stabbing, would cause 

undue prejudice.

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

The defendant argues that the judge erred in admitting the 

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

approximately six minutes before she telephoned 911. The judge 

reasoned that the written statement, although hearsay, was 

admissible under the spontaneous utterance exception to the 

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

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

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

(2002).

Under our rules, admissibility under the spontaneous 

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

event 'sufficiently startling to render inoperative the normal 

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

statement was "a spontaneous reaction to the occurrence or event 

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

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

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

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

victim fails to meet either requirement for admissibility.3 We 

disagree and conclude that the judge committed no error in 

admitting the victim's cellular telephone text message in 

evidence.

While Massachusetts appellate courts have yet to approve 

admission of text messages or any other writing under the 

spontaneous utterance exception to the hearsay rule, this 

exception does not categorically exclude written statements from 

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

considered a spontaneous utterance if it satisfies a heightened 

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

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

writing is more suspect as a spontaneous exclamation than is an 

oral statement, the circumstances of the writing would have to 

include indicia of reliability even more persuasive than those 

required for an oral statement before we could conclude that the 

 

3 The defendant also argues that the message was not 

sufficiently authenticated as being sent by the victim. In the 

circumstances of this case, where the defendant did not contest 

the authenticity of the text message during the trial, the 

authenticity requirement was satisfied by Evan's testimony and 

his cellular telephone records showing a message originating 

from the victim at 3:03 P.M.
13

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

The heightened indicia of reliability requirement, however, does 

not impose an additional test in the spontaneous utterance 

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

which generally is a product of reflection, meets the 

spontaneity requirement. Thus, although we examine a writing 

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

same as for an oral statement.

The first requirement, that there be an exciting event 

giving rise to the exception, is clearly satisfied by the 

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

condition approximately ten minutes later.4 See Commonwealth v. 

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

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

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

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

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

 

4 The defendant acknowledges that the content of the text 

message statement itself satisfies this requirement, but 

asserts, without citation to any cases, that the confrontation 

clause of the Sixth Amendment to the United States Constitution 

requires that there be additional evidence of the event besides 

the statement. Regardless of whether the defendant's argument 

has any basis in law, the occurrence of an exciting event having 

very recently occurred was confirmed by the condition of the 

victim and apartment when the police arrived minutes later. See 

Commonwealth v. Whelton, 428 Mass. 24, 26-27 (1998).
14

contains no further information about the events occurring at 

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

frantically telephoned 911 to report that her husband was 

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

barely breathing and lying in a pool of blood.

In determining the second element of spontaneity, we 

consider the circumstances of the statement, including the 

temporal relation between the event and the statement, and the 

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

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

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

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

and to what extent the requisite spontaneity is compromised by 

this method of communication.

Here, the circumstances of the statement, although in the 

form of a cellular telephone text message, are entirely 

consistent with spontaneity. As described above, the victim 

telephoned 911 to report that the defendant was stabbing her six 

minutes after the text message to her son reporting that the 

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

events closely resembles a scenario mentioned in DiMonte, 427 

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

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

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

impaired" (footnote omitted).

The circumstances under which the text message was sent 

adequately compensate for the limitations inherent in a writing 

and meet the spontaneity test. Cellular telephone text messages 

are a unique form of written communications in that they allow 

for instant communication in much the same way as oral 

communications. The cellular technology that allows for the 

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

substitute for oral expression, diminishes the concern about 

spontaneity that might arise with other more deliberative modes 

of written communication. Further, the growth of cellular 

telephones has made text messaging and other types of written 

electronic statements ubiquitous forms of rapid communication.5

For a person proficient in the use of the cellular telephone 

technology, sending a text message may involve no more effort 

 

5 In Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 

2007), a judge of the United States District Court for the 

District of Maryland reviewed case law interpreting evidentiary 

rules for application to electronic communications. The judge 

concluded that electronically stored communications may be 

admissible under the Federal rule governing spontaneous 

utterances, Fed. R. Evid. § 803(2), noting the "prevalence of 

electronic communication devices, and the fact that many are 

portable and small, means that people always seem to have their 

laptops, [personal digital assistants], and [cellular 

telephones] with them, and available for use to send [electronic 

mail messages] or text messages describing events as they are 

happening." Id. at 569.
16

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

an event. A cellular telephone user may choose between verbal 

and written communication without sacrificing immediacy in the 

communication of the message.6 This opportunity for instant 

communication by way of cellular telephone technology elevates 

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

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

Thus, we conclude that the spontaneity requirement is not 

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

writing in the form of a cellular telephone text message.

Although the temporal relation requires no definite and 

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

from the event, the more difficult it becomes to determine 

whether the statement is the result of reflection, influenced by 

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

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

the temporal relation is that statements made before the 

 

6 More text messages are sent and received by cellular 

telephone users than voice minutes are expended. According to a 

Nielsen study conducted in 2012, ninety-four per cent of United 

States consumers age sixteen years and older use a cellular 

telephone, and the average United States cellular contract user 

sent or received 764.2 text messages and used 644.1 voice 

minutes per month. See The Nielsen Company, The Mobile 

Consumer: A Global Snapshot 7, 19 (Feb. 2013), available at 

http://www.nielsen.com/content/dam/corporate/uk/en/documents/Mob

ile-Consumer-Report-2013.pdf [http://perma.cc/VYX5-WCL8], citing 

Nielsen Consumer Value Metrics (2012).
17

declarant has time to "contrive and misrepresent" would be 

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

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

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

case, the statement occurred within a reasonable temporal 

proximity to the exciting event because the victim's subsequent 

911 telephone call and death shortly thereafter demonstrate that 

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

Likewise, the tone and manner of the declarant, as 

evidenced by the writing itself, supports a determination that 

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

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

punctuation. The message related only to the circumstances of 

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

that threat. In contrast, the facsimile transmission in 

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

spontaneous, was much longer and related to arrangements for an 

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

the prior assault.

For all the reasons explained above, we are persuaded that 

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

statement and its timing, establish the second requirement of 

the spontaneous utterance exception to the hearsay rule. The 

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

Last, statements admissible as spontaneous utterances must 

also satisfy the confrontation clause of the Sixth Amendment to 

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

"The confrontation clause bars the admission of testimonial outof-court statements by a witness who does not appear at trial 

unless the witness is unavailable to testify and the defendant 

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

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

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

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

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

that the statement was testimonial in fact because the victim 

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

instead intended to establish the identity of her potential 

perpetrator. We disagree with the defendant's characterization 

of the statement.

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

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

being used against the accused in investigating and prosecuting 

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

 

7 Whether a statement is testimonial in fact is the second 

step in determining whether a statement was testimonial. 

Commonwealth v. Simon, 456 Mass. 280, 297, cert. denied, 562 

U.S. 874 (2010). The statement was not testimonial per se, 

which is the subject of the inquiry in the first step, because 
19

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

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

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

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

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

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

statement is more properly characterized as one made in the 

context of an ongoing emergency for which the victim sought 

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

message.

ii. Availability of suppressed statement for impeachment. 

The defendant argues that the judge erred in ruling that the 

Commonwealth would be permitted to rebut evidence of the 

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

that he was noncommunicative during booking and during his 

receipt of Miranda and telephone rights. Although the judge 

explicitly ordered that the content of the statements would not 

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

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

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

his manner and demeanor in answering those questions and what 

were the general areas of conversation." The defendant argues 

 

the statement was not made in a "formal or solemnized form" or 

"in response to law enforcement interrogation." Id.
20

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

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

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

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

testimony.

Both of these arguments are unavailing. The trial judge, 

after reviewing the transcript from the hearing on the motion to 

suppress and the video recording of the interrogation, concluded 

that the defendant's statements were voluntary because the

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

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

subtleties, and responded to the police officer directly on the 

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

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

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

trial use against a defendant of his involuntary statement is a 

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

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

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

The defendant's argument fails for the additional reason 

that the judge precluded the admission of the content of the 

 

8 The motion judge, suppressing the statements on other 

grounds, did not decide the issue of voluntariness.
21

statements. The judge ruled that only evidence of the 

defendant's ability to communicate would be admitted and only 

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

noncommunicative in the aftermath of the killing. Evidence of 

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

rebut evidence of the defendant's noncommunicability, is not 

barred by the Fifth or Fourteenth Amendment to the United States 

Constitution, or by art. 12.9

The defendant next argues that this ability to communicate, 

as established by the existence of (the subsequently suppressed) 

statements to the police, was not admissible to impeach his 

expert witnesses even if such statements would have been 

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

limitations on the impeachment exception to the exclusionary 

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

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

statements, even if voluntary, that were obtained in violation 

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

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

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

 

9 The defendant's silence in response to Miranda warnings 

and booking questions, sought at trial to demonstrate mental 

impairment, was considered by the motion judge as evidence that 

the defendant invoked his right to remain silent and was 

accordingly used to support suppression.
22

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

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

purpose of impeaching the credibility of the defendant's own 

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

Supreme Court declined to extend the impeachment exception to 

allow impeachment of "all defense witnesses" because doing so 

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

would appreciably undermine the deterrent effect of the 

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

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

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

of questions, without relating the content of the statements, 

that is offered for the purpose of showing communicability is 

not an impermissible use of illegally obtained statements and,

therefore, does not offend the rule in James.

iii. Exclusion of expert witness testimony. The defendant 

argues that the judge violated his right to present a defense 

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

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

review the effects of combining Celexa and alcohol and was 

 

10 The statements suppressed in James v. Illinois, 493 U.S. 

307, 313 (1990), were obtained in violation of the Fourth

Amendment to the United States Constitution, not the Fifth 

Amendment to the United States Constitution as applicable in 

this case.
23

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

the stabbing was a legitimate suicide attempt. The judge 

excluded the testimony as cumulative, of limited relevancy, and 

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

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

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

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

witnesses whose testimony is cumulative, repetitive, or 

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

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

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

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

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

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

300 (1992).

Although Dr. Stuart was to be the only expert testifying 

about the effects of Celexa and alcohol in combination, there 

was no evidence about the quantity of alcohol or drugs ingested 

at or near the time of the stabbing.

11 While the expert intended 

 

11 A defense expert witness testified that the defendant 

told him he consumed an excessive amount of alcohol and took 

pills on the evening before the stabbing, but these statements 

were not admitted for their truth. The jury also heard evidence 

that a bottle of rum two-thirds full and several prescription 

bottles of pills were located in the apartment after the 

stabbing.
24

to testify about the drug and alcohol combination to demonstrate 

that the defendant actually attempted suicide and not to show 

that the combination directly affected his state of mind the day 

of the stabbing, another expert had already testified that the 

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

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

b. Diminished capacity instruction. The defendant argues 

that the judge committed reversible error by failing to instruct 

the jury that they could consider evidence of diminished 

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

extreme atrocity or cruelty, as required by Commonwealth v. 

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

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

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

gave the model jury instruction. See Model Jury Instructions on 

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

because the judge instructed the jury in accordance with 

Rutkowski, supra.

12 A judge is not required to give the precise 

 

12 The relevant portion of the jury instructions are as 

follows:

"More particularly, you may consider any credible evidence 

of the defendant’s mental impairment, and/or the use of 

drugs, in determining whether the defendant deliberately

premeditated the killing of the deceased, that is whether 

the defendant thought before he acted, and whether the 
25

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

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

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

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

no error.

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

entire record and see no reason to exercise our power under 

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

by the defendant or to grant other relief.

Judgment affirmed.

 

defendant reached the decision to kill after reflection, at 

least for a short period of time, and whether the defendant 

acted in a cruel or atrocious manner, in causing the death 

of the deceased" (emphases added).