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SJC-11955

COMMONWEALTH vs. WILLIAM GODDARD.

Worcester. October 11, 2016. - February 9, 2017.

Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

Homicide. Evidence, Expert opinion. Witness, Expert.

Practice, Criminal, Capital case, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on June 5, 2008.

The cases were tried before Richard T. Tucker, J.

Robert S. Sinsheimer for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. The jury convicted the defendant, William 

Goddard, of murder in the first degree on the theory of 

deliberate premeditation.1 On appeal, the defendant argues that 

 

1 The defendant also was convicted of aggravated kidnapping, 

several counts of armed assault with intent to murder, several

counts of assault by means of a dangerous weapon, two counts of 

assault and battery by means of a dangerous weapon, and various 
2

(1) the trial judge erred by permitting the Commonwealth's 

expert witness to testify that the defendant had premeditated 

the killing, (2) the same expert was impermissibly permitted to 

state the basis of her opinion on direct examination, and (3) 

the prosecutor made statements not supported by evidence during

closing arguments. We affirm the convictions and decline to 

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

1. Background. We summarize the facts the jury could have 

found and reserve other details for discussion of specific 

issues. On the morning of January 28, 2008, the defendant shot

and killed his former girl friend (victim). The victim and the 

defendant met in October, 2005, developed a romantic 

relationship, and began living together. By August, 2007, their 

relationship began to deteriorate, partly because the defendant 

suspected the victim was having an affair with her boss. In 

October, 2007, the relationship between the victim and the 

defendant ended when she kicked him out of the house. The 

defendant did not take the break up well.

On the morning of the murder, the defendant arrived in his 

automobile at the automotive shop where the victim worked. The 

defendant forced an employee at gunpoint to bring him to the 

office that the victim shared with her boss.

 

firearms charges. The jury found the defendant not guilty of 

several counts of armed assault with intent to murder.
3

Upon entering the office, the defendant said to the victim, 

"[S]hut up. Don't move. Shut up. Don't move." The victim

responded, "Bill, what are you doing?" The defendant then shot 

the victim a single time in the neck, killing her in a matter of 

minutes. The defendant also shot the boss in the left arm; he 

lay on the ground to "play[] dead." The defendant then 

attempted to fire the gun a third time, in an unspecified 

direction, but his weapon misfired.

Upon hearing the misfire, the employee who had taken the 

defendant to the office ran out of the room. The defendant

fired several more times in his direction and in the direction 

of three other employees, who were hiding behind a forklift 

outside the office. The fleeing employee was able to get 

outside, but he slipped on a patch of ice and fell. While he 

was on the ground, the defendant caught up to him and again 

tried to shoot him, but again, the defendant was unable to fire 

the gun. The defendant told the man, "You better run."

The defendant then fled the scene in his vehicle. Minutes 

later, a Webster police officer stopped the defendant for 

speeding in a construction zone less than one mile from the 

shop. The defendant held the steering wheel and stared straight 

ahead while the officer reprimanded him, only saying, "Sorry, 

Officer." Unaware of the shooting, the officer allowed the 

defendant to leave with a warning.
4

While in his vehicle, the defendant used his cellular

telephone to call an agent with the Federal Bureau of Alcohol, 

Tobacco, and Firearms. The defendant had known the agent for 

over a year through her work. The defendant told her that he 

was currently driving around Webster and that, "I was at my exgirlfriend['s] workplace. I confronted her. I think I shot her 

in the face, and I possibly have shot others, other employees." 

When the agent suggested he turn himself in, he said, "No, I'd 

rather kill myself," and hung up the telephone.

The defendant then drove to his sister's house in Spencer. 

Once there, he told his sister that his vehicle needed repair 

and convinced her to give him a ride to Worcester. The 

defendant's sister testified that on the way to Worcester her 

brother seemed normal, but later told her, "If we get pulled 

over, I hope you don't get shot." When she asked what he was 

talking about, he repeatedly said, "The less you know, the 

better."

The sister dropped him off in a restaurant parking lot in 

Worcester, where he had arranged for a female acquaintance to 

meet him. The defendant had told the acquaintance a similar 

story about his vehicle needing repair. She brought the 

defendant back to her house, where they both stayed for about 

ninety minutes. During that time, the acquaintance observed the 

defendant acting strangely. The acquaintance received a 
5

telephone call from a friend, who informed her that the police 

were looking for her vehicle. The defendant, overhearing the

conversation, ran out of the house.

The defendant sprinted to a nearby field, where he stood 

with his gun pointed at his head. A large police presence 

quickly arrived on scene. A State police negotiator talked with 

the defendant to try to prevent him from killing himself. The 

defendant was agitated and demanded that the police kill him. 

The defendant told the negotiator, "My side of the story is on a 

[compact disc] in my truck." The defendant was eventually 

convinced to accept a cup of coffee, and while he was bending 

over to pick it up, the police shot him with nonlethal 

ammunition and took him into custody.

The police obtained warrants and searched the defendant's 

apartment and vehicle. As the defendant had indicated, the 

search of his vehicle revealed a compact disc (CD) in a plastic

sleeve. The CD contained an audio recording wherein the 

defendant made several statements about his intention to kill 

the victim and her boss. The search of the defendant's 

apartment uncovered his computer. A forensic examination of 

that computer revealed Internet searches that had occurred

between December, 2007, and January, 2008, and that included 

phrases such as "How to kill someone," "Murder an exgirlfriend," and "How to use a handgun to kill."
6

At trial, the defendant did not dispute that he killed the 

victim. He presented a lack of criminal responsibility defense. 

To support his defense, the defendant called Dr. Eric Brown, an 

expert clinical and forensic psychologist, as a witness. Dr. 

Brown met with the defendant on several occasions after the 

killing. He testified that the defendant suffered from bipolar 

disorder, posttraumatic stress disorder (PTSD), and possibly a

seizure disorder. As a result of those mental disorders, Dr. 

Brown testified that he believed that the defendant "was unable 

to control his behavior to conform with the law." In rebuttal, 

the Commonwealth called Dr. Alison Fife, a psychiatric expert, 

as a witness. She testified that the defendant did not suffer

from bipolar disorder, PTSD, seizure disorder, or a mental 

disease at the time of the killing. Further, she testified that 

the defendant had the substantial capacity to conform his 

conduct to the requirements of the law.2

2. Discussion. a. Testimony on the ultimate issue of 

guilt. The defendant argues the Commonwealth's expert witness, 

Dr. Fife, was improperly permitted to testify that the defendant 

premeditated the killing. On direct examination, the prosecutor 

asked Dr. Fife the following question: "Based on your review of 

the material, and specifically the investigation of the case and 

 

2 The defendant did not claim that he lacked the substantial 

capacity to appreciate the criminality of his conduct. See 

Commonwealth v. McHoul, 352 Mass. 544, 555 (1967).
7

the CD you mentioned, do you have an opinion as to whether or 

not on January 28th, [the defendant] engaged in goal-directed 

behaviors?" Over objection, Dr. Fife responded, "My opinion is 

that [the defendant's] behaviors on that day were planned."

There is no prohibition on an expert testifying to an 

opinion that touches the ultimate issue in a case. Commonwealth

v. Canty, 466 Mass. 535, 543 (2013). See Mass. G. Evid. § 704 

(2016). However, an expert opinion stating whether a defendant 

is guilty or innocent is not permitted. Commonwealth v. 

Hamilton, 459 Mass. 422, 439 (2011). The jury must be allowed 

to reach their own conclusion from the evidence; an opinion 

touching on guilt or innocence usurps the jury's function as the 

sole and exclusive finders of the facts. Where testimony 

approaches an ultimate issue of guilt, "the probative value of 

the opinion must be weighed against the danger of unfair 

prejudice." Canty, 466 Mass. at 544. See Mass. G. Evid. § 403

(2016).

Taken in context, Dr. Fife's opinion that the defendant's 

behavior was planned and goal-directed was relevant to the issue 

of criminal responsibility, not premeditation. Although the 

form of the question and the answer lacked precision, it was an 

appropriate subject for expert testimony. See Commonwealth v. 

Boateng, 438 Mass. 498, 508 (2003) (permissible for expert to 
8

discuss defendant's "goal-directed actions" in opinion on 

defendant's criminal responsibility).

Even if Dr. Fife's statement that the defendant's behavior 

on January 28 was "planned" was error due to the form of the 

question or because it was inadmissible on the issue of 

premeditation,

3 it caused no prejudice to the defendant. The 

evidence of the premeditation of the killing was overwhelming:

the defendant searched the Internet using such highly 

incriminating phrases as "How do I get away with murder";

arrived at the victim's workplace with a gun and additional 

ammunition; and forced an employee at gunpoint to take him to 

the victim's office. Most damningly, the defendant said on the 

CD, i.e., "his side of the story," that "if you're listening to 

this recording, I accomplished what I set out to do," and "I 

gave up living. And, you know, and I decide to say, 'You know 

what? If I'm not living, she's not living either.' I decide to 

kill her, you know, and I decide to kill her boy friend."

The defense's own expert also acknowledged that the 

defendant's actions on January 28 were "goal-directed." In 

response to the question, "Now, it's fair to say, isn't it, that 

all of the [defendant's] behaviors . . . on [January 28] . . . 

were purposeful, goal-directed behaviors, weren't they?" Dr. 

 

3 The defendant did not request an instruction limiting the 

purpose for which the jury could consider Dr. Fife's testimony 

to the issue of criminal responsibility.
9

Brown responded, "I would say so, yes." Finally, the trial 

judge properly instructed the jury that expert opinions were to 

be evaluated by the jury, who were free to accept or reject the 

opinion. Commonwealth v. Cyr, 425 Mass. 89, 97 (1997), S.C., 

433 Mass. 617 (2001). See Commonwealth v. Hinds, 450 Mass. 1, 

14-15 (2007), S.C., 457 Mass. 83 (2010).

b. Bases for Dr. Fife's opinion. The defendant also 

contends the trial judge erroneously permitted Dr. Fife to state 

the bases of her opinion on direct examination. Dr. Fife 

explained that her opinion was supported by "things that had 

been talked about [at trial] and that I gleaned from the records 

and my evaluation about shooting at people in the building, 

fleeing the scene, making the [tele]phone calls, being stopped 

by the police officer, going to the friend's house, [and] 

fleeing when he knew someone was after him." She also said her 

opinion was based on "my understanding of the evidence, meeting 

with [the defendant] and knowing everything I do about this 

case."

Experts "may base their opinions on (1) facts personally 

observed; (2) evidence already in the records or which the 

parties represent will be admitted during the course of the 

proceedings, assumed to be true in questions put to the expert 

witnesses; and (3) 'facts or data not in evidence if the facts 

or data are independently admissible and are a permissible basis 
10

for an expert to consider in formulating an opinion.'" 

Commonwealth v. Markvart, 437 Mass. 331, 337 (2002), quoting 

Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 

(1986). See Mass. G. Evid. § 703 (2016). In regard to the 

third category, experts are prohibited "during [their] direct 

examination[s] from informing the jury about the facts or data 

[they] considered that were not in evidence but that would be 

admissible with the right witness or proper foundation."

Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010), cert. 

denied, 563 U.S. 990 (2011). See Mass. G. Evid. § 705 (2016). 

Where an expert is basing an opinion on information 

independently admissible but not admitted in evidence, "[t]he 

thrust of [our] rule is to leave inquiry regarding the basis of 

expert testimony to cross-examination . . . ." Department of 

Youth Servs., supra at 532, quoting Advisory Committee's Note on 

Proposed Mass. R. Evid. § 705.

This last limitation on inquiry regarding the basis of an 

expert's opinion to cross-examination prevents "the danger that 

the [proponent of the expert opinion] would use an expert's 

opinion to inform the jury of facts not in evidence." Barbosa, 

457 Mass. at 785. In short, allowing testimony regarding the 

basis of the opinion on direct examination, in this context,

would import inadmissible hearsay into the trial. However, 

where facts or data are already admitted in evidence, we have 
11

held that it is "permissible for the expert witnesses to 

reference that evidence in their own expert testimony." McHoul,

petitioner, 445 Mass. 143, 146 (2005), cert. denied, 547 U.S. 

1114 (2006).

With one exception, the facts Dr. Fife referenced in her 

testimony already had been admitted in evidence.4 Several other

witnesses had testified to the defendant's conduct on 

January 28, and defense counsel had already elicited much of the 

same information during the examination of Dr. Brown.

Accordingly, Dr. Fife's direct examination was not used to put 

facts not properly in evidence before the jury, beyond the one 

minor exception. See Markvart, 437 Mass. at 338. See also note 

4, supra.

c. Closing argument. The defendant also argues that the 

prosecutor was improperly permitted to argue facts not in 

evidence during closing argument. During closing argument, the 

prosecutor referenced the CD made by the defendant: "[A]lthough 

 

4 The one exception was Dr. Fife's testimony that the 

defendant had previously done "things like turning on the Bunsen 

burners in middle school." This incident was not in evidence, 

and should not have been stated on direct examination as a basis 

for Dr. Fife's expert opinion. The defendant objected to this 

statement at trial, but he did not argue it on appeal.

Nevertheless, the reference was fleeting, and the incident 

relatively innocuous and remote in time. See Commonwealth v. 

Appleby, 389 Mass. 359, 375 (1983), cert. denied, 464 U.S. 941 

(1983). We are confident that there was no reasonable 

possibility that the admission of this portion of Dr. Fife's 

testimony contributed to the jury's verdict. See Commonwealth

v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring).
12

we don't know exactly when [the CD] was [made], . . . you would 

be warranted in concluding that it . . . was made very close in 

time to the killing itself." The prosecutor further remarked, 

"[T]he CD may well have been the last step, because we know from 

[the defendant's] words it was made in January." After the 

conclusion of the closing argument, the defendant objected at 

sidebar to the prosecutor's statements that the CD had been made 

during January, 2008. The trial judge declined to give a 

curative instruction, but did instruct the jury generally that 

statements made by the prosecutor were not evidence.

A prosecutor may not misstate evidence or refer to facts 

not in evidence in a closing argument. Commonwealth v. Walters, 

472 Mass. 680, 703 (2015). "A prosecutor may, however, in 

closing argument, analyze the evidence and suggest what 

reasonable inferences the jury should draw from that evidence." 

Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992). The

inference "need not be necessary and inescapable, only 

reasonable and possible." Commonwealth v. Jones, 432 Mass. 623, 

628 (2000). Statements made by a prosecutor in closing must be 

viewed in light of the entire argument, the judge's instruction 

to the jury, and the evidence at trial. Commonwealth v. Coren, 

437 Mass. 723, 730-731 (2002).

There was no conclusive proof as to the date the CD was 

made. The defendant's expert, Dr. Brown, testified that the 
13

defendant told him he made the CD on December 15, 2007. The 

Commonwealth argued that the CD had instead been made during 

January, 2008. The defendant's statement on the CD, which was 

played for the jury, included the following: "But, you know, I 

mean, October of last year came and she was very distant from 

me, starting fights with me, leaving. Then all of a sudden I 

was thrown out for supposedly treating her son mean. You know,

I thought it was just another fight but she never asked me to 

come home again." (Emphasis added.) Dr. Brown testified that 

the defendant and the victim had stopped living together in 

October, 2007. The Commonwealth argued that the "last year" 

statement was referring to the October, 2007, incident, and 

therefore the CD had to have been made in 2008. When asked on 

cross-examination if the "last year" reference suggested that 

the CD had been made in 2008, Dr. Brown replied, "possibly."

The prosecutor's statement that the CD was made in January, 

2008, was a reasonable inference. There was no error.

d. Review pursuant to G. L. c. 287, § 33E. We have 

reviewed the entire record on both the law and the facts 

pursuant to our obligation under G. L. c. 278, § 33E. We 

conclude that the defendant is not entitled to relief, as the 

interests of justice do not require the entry of a verdict of a 

lesser degree of guilt or a new trial.

Judgment affirmed.