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SJC-11687

COMMONWEALTH vs. DESHAWN CHAPPELL.

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

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

Homicide. Deoxyribonucleic Acid. Constitutional Law, 

Confrontation of witnesses, Fair trial. Evidence, Expert 

opinion, Consciousness of guilt, State of mind, Insanity. 

Witness, Expert. Insanity. Mental Health. Practice, 

Criminal, Capital case, State of mind, Confrontation of 

witnesses, Instructions to jury.

Indictment found and returned in the Superior Court

Department on March 24, 2011.

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

Stephen Neyman for the defendant.

Matthew T. Sears, Assistant District Attorney (Edmund J. 

Zabin, Assistant District Attorney, with him) for the 

Commonwealth.

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

residential counsellor at a mental health facility in Revere, 

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

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

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

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

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

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

theory of deliberate premeditation.

In his appeal from the conviction, the defendant argues 

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

present evidence concerning deoxyribonucleic acid (DNA) testing 

through an expert witness who had not performed the DNA testing 

herself; (2) impermissibly limiting the direct examination of 

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

providing the jury with an inadequate instruction regarding the 

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

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

consideration of evidence of consciousness of guilt solely to 

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

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

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

thorough review of the record, we decline to grant relief 

pursuant to G. L. c. 278, § 33E.

1. Background.

1 a. The offense. We summarize the facts 

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

 

1 We summarize here the evidence presented at trial 

concerning the killing of the victim and the defendant's 
3

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

residential mental health facility in the Charlestown section of 

Boston.

2 Following an altercation between the defendant and 

another resident at that facility, the defendant was transferred 

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

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

adults with mental illness.3 Seagull House staff helped 

residents to obtain basic social skills and skills required for 

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

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

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

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

group programs in the community.

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

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

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

that included the victim and her supervisor, Colette 

 

criminal responsibility, reserving discussion of other evidence 

to our consideration of the legal issues raised.

2 Perkins House is a residential mental health facility 

operated by the North Suffolk Mental Health Association (North 

Suffolk), a nonprofit organization which contracts with the 

Department of Mental Health to provide mental health services to 

clients of the department.

3 Seagull House is another residential mental health 

facility operated by North Suffolk.
4

Deneumostier.4 Deneumostier arrived at Seagull House at 

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

thereafter to perform work-related errands. The victim also 

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

Seagull House staff member who had been in charge of the 

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

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

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

telephone; at no point during that conversation did the victim 

report any concerns about the defendant's mental status. 

Deneumostier tried to contact the victim by telephone again 

several times before she (Deneumostier) returned to Seagull 

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

When Deneumostier arrived at the facility, she heard the 

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

department or 911. When fire fighters and police officers 

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

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

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

 

4 According to Colette Deneumostier, team meetings were 

typically set up shortly after a resident moved into Seagull 

House and began participating in its program. The purpose of 

the January 20, 2011, meeting of the defendant's team was to 

make sure the staff and he were "on the same page" and to 

address "some concerns with [the defendant] cooking at night, 

not doing his chore[s] all the time, [and] taking other people's 

food. And . . . to talk about his goals that were being set 

up."
5

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

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

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

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

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

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

note that stated:

"Babycake, what ups? I still want to kick with you when I 

get something house next year. Are you down with that? 

How the kids? WB if you can. Can you go somewhere, kick 

with me, movies, out to eat?"

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

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

this is inappropriate." Police also recovered from an office 

located in the lower portion of the building a green notebook 

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

recovered, the notebook was opened to a page referencing the 

defendant.

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

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

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

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

foot that matched the left boot recovered from Seagull House;

 

5 The defendant had lived for a short period of time in 2005 

or 2006 in Lynn near to St. George's Greek Orthodox Church (St. 

George's), at a time when his then girl friend lived within 

walking distance of the church.
6

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

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

bedroom at Seagull House. The victim had sustained sharp force 

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

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

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

severed the sternocleidomastoid muscle, the jugular veins, and 

the carotid arteries.

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

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

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

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

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

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

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

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

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

eventually drove away.6

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

cousin in the Dorchester section of Boston and asked her for 

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

 

6 A resident of a building near to St. George's testified 

that at approximately 10 A.M. on January 20, 2011, she saw a man 

who fit the defendant's description in the parking lot. The 

witness saw the man bending over, but a snow bank blocked her 

view of the man's lower body.
7

unsuccessful in securing either one. During the visit, the 

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

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

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

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

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

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

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

then traveled by train to Braintree and inquired about an 

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

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

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

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

traveled by public transportation to the building where his 

grandmother lived.

Police officers were waiting for the defendant in the lobby 

of his grandmother's building, his grandmother having informed 

the police of his impending arrival. Following some resistance, 

the defendant was arrested and taken into custody. Police 

officers handcuffed the defendant and placed him in a chair in 

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

 

7 Prior to the defendant's telephone call, his grandmother 

had seen the television news regarding the killing of the victim 

in Revere. When she spoke to the defendant during his call, she 

told him that she heard that the television news coverage about 

the killing in Revere involved him.
8

officer was administering Miranda warnings to him, the defendant 

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

otherwise exhibit bizarre or psychotic behavior or appear or 

sound delusional during the time he was in the lobby.

The defendant was transported to a Boston police station

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

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

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

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

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

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

Testing of a sample of blood located on fingernail scrapings 

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

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

major profile identified matched the defendant, and the victim 

was included as a potential contributor to the minor profile.

b. The defendant's mental state and criminal

responsibility. The defendant was thirty at the time of trial 

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

while in high school, the defendant had regularly attended 

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

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

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

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

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

appearance and that he had become withdrawn. The defendant 

began to have trouble sleeping and would call his mother 

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

voices in his head. He also stopped attending weekly family 

dinners at his grandmother's house.

The defendant was first hospitalized in 2006, after he 

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

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

emergency department of Massachusetts General Hospital (MGH),8

and personnel at MGH kept the defendant for observation for two 

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

his grandmother. He was prescribed medication, which he 

eventually stopped taking because the side effects caused him 

difficulties with swallowing and speaking, and also caused 

involuntary tremors. Only months after the first instance, the 

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

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

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

2007, the defendant was hospitalized briefly at Whidden Memorial 

 

8 The defendant's mother was employed by Massachusetts 

General Hospital as an operations associate.

9 Schizophrenia is a mental illness that is long-standing in 

duration, and symptoms of the illness include disorganized 

thoughts and perception, delusions, and auditory and visual 

hallucinations.
10

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

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

mental health condition deteriorated during that period, even 

though he resumed taking medication. For example, the defendant 

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

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

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

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

third time, after which he went to Bridgewater State Hospital 

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

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

at Arbor Hospital. The defendant was hospitalized for 

psychiatric reasons on at least five occasions between 2006 and 

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

hospitalization ended in December, 2009.

David Thomson, a program coordinator employed by North 

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

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

referrals of the defendant to the Boston Emergency Services Team 

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

because the defendant appeared disorganized and was 

decompensating on these dates. The defendant's medical record 

 

10 The Boston Emergency Services Team (BEST) is a team of 

mental health clinicians who respond to emergency calls to 

perform crisis evaluations.
11

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

BEST referral, he had an increase in hallucinations, felt 

paranoid, believed that members of the staff were listening to 

his conversations, and made verbal outbursts regarding the 

taking of his powers. That record also reflected that the 

defendant had a history of traumatic brain injuries, lead 

poisoning, and substance abuse.

Michael Swinchoski, a licensed mental health counsellor 

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

Swinchoski believed the defendant suffered from disorganized 

schizophrenia, and that he responded to an inner stimulus 

unprompted by any external circumstances. In December, 2010, 

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

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

Swinchoski thought would help reduce the defendant's level of 

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

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

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

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

psychopharmacological treater. During the meeting, the 

defendant was wearing socks on his hands, which Debowey noted 

because he knew that the defendant had been diagnosed with 

schizophrenia or schizoaffective disorder and, at times, bizarre 

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

defendant did not report any auditory hallucinations, nor did he 

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

left with the impression that the defendant posed an acute risk 

to himself or others.

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

Dr. Naomi Leavitt, a forensic psychologist employed by the 

department, conducted a court-ordered competency evaluation of 

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

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

would not be confidential, and made statements not reflective of 

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

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

psychiatric hospital or been diagnosed with a mental illness,

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

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

evaluation, the defendant became increasingly agitated. Leavitt 

questioned the defendant's competence to stand trial and 

recommended that he be further evaluated at Bridgewater. A few 

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

services and psychology at Bridgewater, performed two 

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

need for further hospitalization. Carroll diagnosed the 
13

defendant with schizophrenia, undifferentiated type.11 Carroll 

opined that the defendant was not competent to stand trial due 

to thought disorganization related to his mental illness and 

that the defendant required further hospitalization.

The defendant's primary mental health expert at trial was 

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

on three occasions and reviewed the multiple medical and 

psychiatric records of the defendant, including records of all 

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

interviewed family members. Based on his personal meetings and 

review of the data, Werner diagnosed the defendant with paranoid 

schizophrenia. Werner opined that the defendant suffered from 

hallucinations and delusions that made him unable to distinguish 

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

that the defendant had been decompensating since July, 2010.

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

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

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

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

her death. Werner ultimately concluded that the defendant was 

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

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

 

11 Undifferentiated type means that the affected person 

presents with symptoms of various other subtypes of 

schizophrenia.
14

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

crime after the fact were consistent with the conclusion that 

the defendant could not conform his conduct to the law because 

those attempts were so completely disorganized and ineffective.

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

psychiatrist, conducted a criminal responsibility examination of 

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

defendant did not suffer from a mental disease or illness that 

interfered with his ability to appreciate the wrongfulness of 

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

Kelly, when a person actually experiences auditory 

hallucinations, the hallucinations are part of a larger, 

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

that, although the defendant claimed to experience auditory 

hallucinations that caused him to kill the victim, the 

hallucinations were not part of a larger delusional system and 

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

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

up the crime and his participation in it demonstrated that the 

defendant had the capacity to appreciate the wrongfulness of his 

conduct. Finally, in reviewing the records and notes prepared 

by the North Suffolk mental health staff and clinicians who had 

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

January, 2011, Kelly observed no decompensation by the 

defendant.

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

defendant argues that his constitutional right of confrontation 

guaranteed by the Federal and State Constitutions was violated 

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

permitted to testify about the results of DNA testing performed 

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

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

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

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

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

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

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

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

supervised approximately twenty-five to thirty DNA analysts. 

Schneeweis described in her testimony the process by which the 

crime lab conducts DNA analysis, including the specific 

protocols used. Although Schneeweis did not perform the 

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

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

performed by Hughes. A technical reviewer "is responsible for

 

12 Immediately before trial, the Commonwealth filed a motion 

in limine to permit Lynn Schneeweis to testify, rather than 

Sarah Hughes, who was in England. The judge allowed the motion.
16

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

done in accordance with policy and procedure, and that the 

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

that was generated during the analysis procedure," and 

Schneeweis performed this work in the present case. As the 

second reader, Schneeweis independently read all the raw data 

and the reports produced by Hughes, made interpretations, and 

ensured that there was agreement between her findings and those 

of Hughes. After explaining in some detail the specific work 

that she herself had performed, Schneeweis testified to her 

opinions or conclusions13 concerning the DNA that had been 

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

that the major profile identified in the DNA sample taken from 

the fingernail scrapings of the defendant's right hand matched 

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

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

 

13 With few exceptions, in his direct examination of 

Schneeweis, the prosecutor asked the witness for her 

"conclusions" rather than "opinions," but in the context it is 

clear that the prosecutor was using the two words 

interchangeably.

14 The fingernail scrapings were the only deoxyribonucleic 

acid (DNA) sample that included the defendant and the victim as 

possible contributors. There was no male DNA detected on swabs 

and scrapings collected from the victim's underpants, and 

therefore, testing of that DNA sample was ended. In addition, 

samples from reddish-brown stains on the defendant's sweatshirt 

and from the victim's hands were submitted for DNA analysis and 

the defendant was excluded from both as a potential contributor.
17

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

testified to her opinion that the probability of a random, 

unrelated individual contributing to the DNA mixture of the 

minor profile was approximately one out of 494,400 of AfricanAmericans, one out of 242,800 of Caucasians, one out of 314,400 

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

At trial, the defendant objected at the outset of 

Schneeweis's testimony generally on confrontation and chain of 

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

Schneeweis could not testify to any opinions or conclusions 

regarding the DNA evidence because she did not personally 

conduct the laboratory examination and analysis of that 

evidence. The trial judge overruled the objection. The parties 

appear to disagree about whether the defendant's confrontation 

argument on appeal is the same or different from his trial 

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

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

committed no error in permitting Schneeweis to testify or with 

respect to any of the particulars of her testimony.

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

defendant recognizes, we have permitted experts to rely on and 

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

 

15 The defendant does not raise any argument concerning 

chain of custody on appeal, and in any event, our review reveals 

no error.
18

experiments, or observations conducted by another" since 

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

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

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

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

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

based on autopsy report and photographs relating to autopsy that 

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

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

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

way regarding possible flaws relating to the underlying data 

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

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

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

meaningful opportunity to cross-examine Commonwealth's expert 

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

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

cross-examine Commonwealth's expert witness where DNA was 

analyzed at different laboratory in different State from where 

expert worked).16

 

16 We have recognized that for DNA evidence in particular, 

"the testing techniques are so reliable and the science so sound 

that fraud and errors in labeling or handling may be the only

reasons why an opinion is flawed" (emphasis in original). 

Commonwealth v. Barbosa, 457 Mass. 773, 790 (2010), cert. 

denied, 131 S. Ct. 2441 (2011). See Commonwealth v. Tassone, 

468 Mass. 391, 400 (2014).
19

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

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

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

Commonwealth's expert Schneeweis meaningfully about the 

reliability of the underlying DNA testing procedures and data, 

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

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

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

as the second reader and technical reviewer; in those capacities 

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

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

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

statement made by Schneeweis during her direct examination,17

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

Hughes's conclusions.

The defendant is correct that under Massachusetts law, an 

expert witness is not permitted to testify on direct examination 

to facts or data that another, nontestifying expert has 

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

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

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

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

 

17 Schneeweis testified that, as part of her review of 

Hughes's work in this case, she, Schneeweis, determined whether 

"the conclusions that were generated by [Hughes were] supported 

by the data generated during the analysis procedures."
20

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

indication in Schneeweis's testimony, including the portion of 

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

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

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

or conclusions. Rather, Schneeweis described the analytic 

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

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

independently and directly from the case review and analysis she 

herself had performed. Schneeweis's testimony was admissible in 

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

2. Limited direct examination of defendant's primary 

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

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

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

examination about the contents of the defendant's medical 

records, including medical diagnoses and opinions about the 

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

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

records themselves were not in evidence and the defense did not 

wish to introduce them in evidence.18 The trial judge 

 

18 In support of this argument, the defendant cited to the 

trial judge a number of decisions of this court, including 

Commonwealth v. Greineder, 464 Mass. 580, cert. denied, 134 S. 

Ct. 166 (2013); Commonwealth v. Nardi, 452 Mass. 379 (2008); 

Commonwealth v. Markvart, 437 Mass. 331 (2002); Commonwealth v. 
21

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

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

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

concerning any opinions or other information contained in them. 

The defendant's counsel chose not to introduce the medical 

records, in part because of the voluminous quantity and the 

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

them.

On appeal, the defendant repeats the claim that it was 

error to preclude Werner from testifying, during his direct 

examination, to opinions about the defendant's mental illness 

and mental status more generally that were contained in his 

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

confrontation guaranteed by the Sixth Amendment to the United 

States Constitution and art. 12 of the Massachusetts Declaration 

of Rights, but contends that this limitation violated his 

separate right to present a defense that is protected by these 

same constitutional guarantees. We disagree.

 

Waite, 422 Mass. 792 (1996); and Department of Youth Servs. v. A 

Juvenile, 398 Mass. 516 (1986).

19 The judge explained: "I think Greineder makes clear that 

the basis for one's opinion is properly the subject of crossexamination, but is not generally admissible as part of direct 

examination. . . . And if the Commonwealth does cross-examine 

him on any basis for opinion[,] that then permits you on 

redirect to explore whatever the sources of information that he 

used were."
22

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

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

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

are independently admissible and are a permissible basis for an 

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

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

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

evidence, the expert may not testify to the substance or 

contents of that information on direct examination. Id. See 

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

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

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

opened by the defendant, by the prosecution on redirect 

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

discussing this rule have done so in the context of a 

Commonwealth expert witness, where it is the Commonwealth that 

is precluded from asking the expert on direct examination to 

testify to the content of data or even opinions generated or 

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

for the rule is to protect defendants from the admission of 

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

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

 

20 Several cases following Department of Youth Servs. v. A 

Juvenile, 398 Mass. at 531, have reaffirmed this limitation. 

See, e.g., Greineder, 464 Mass. at 583-584; Markvart, 437 Mass. 

at 337-338.
23

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

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

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

a defense is materially impaired if the expert is not permitted 

to explain those bases by pointing to admissible, but not 

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

The limitation just discussed on the direct examination 

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

that operates in both civil and criminal cases and applies to 

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

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

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

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

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

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

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

him to place before the jury evidence normally inadmissible"

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

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

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

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

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

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

been able to elicit from the defense expert on direct 
24

examination the opinions and other information from the 

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

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

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

strategic reasons does not transform the generally applicable 

evidentiary requirement into an unconstitutional burden placed 

on the defendant.21

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

a jury instruction about the consequences of a verdict of not 

guilty by reason of lack of criminal responsibility (Mutina

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

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

judge modify the Mutina instruction that is part of the Model 

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

substantively, he sought the addition of language that would 

inform the jury that if the defendant were still suffering from 

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

additional commitments [following the initial commitment of six 

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

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

 

21 Furthermore, the record shows that the defendant's expert 

was permitted, on direct and cross-examination, to testify at 

length to specific aspects of the defendant's medical and 

treatment records.

22 The instruction proposed by the defendant's trial counsel 

also would have added to the model instruction a statement that 
25

instruction, but gave the model Mutina instruction. See Model 

Jury Instructions on Homicide, supra at 11-12.

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

instruction created a substantial likelihood of a miscarriage of 

justice. He claims that by including references to the number 

of days the defendant might be committed for observation and 

also referencing the initial six-month commitment without a 

mention of the possibility that the defendant could remain 

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

one-sided, underestimated the likely period of commitment the 

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

their essential fact-finding role. The information about the 

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

criminal responsibility included in the judge's Mutina

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

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

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

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

that the model Mutina instruction underestimates the potential, 

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

defendant found not criminally responsible -- is one that has 

 

if the jury found the defendant guilty of murder in the first or 

second degree, he would be sentenced to State prison, not a 

mental health facility. The defendant does not press the point 

on appeal, and we find no persuasive reason to add this 

language.
26

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

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

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

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

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

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

even suggest any specific form of instruction. Moreover, the 

court has made clear that a Mutina instruction need not mention 

the specific time periods for observation or commitment that are 

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

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

unnecessary speculation by the jury and ensure that they 

comprehend the possible consequences of a verdict of not guilty 

by reason of lack of criminal responsibility -- and in 

particular, to understand "what protection they and their fellow 

citizens will have if they conscientiously apply the law to the 

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

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

requires the chilling determination that the defendant is an 

insane killer not legally responsible for his acts." See 

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

instruction that omits references to specific time frames for 

observation and mentions the potential for successive commitment 

 

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

(a), and 18 (c).
27

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

context that accurately reflects the law governing such 

commitments may better accomplish these purposes. Accordingly, 

we propose a provisional instruction along the lines set forth 

in an Appendix to this opinion.24

4. Instruction on consciousness of guilt. The defendant 

requested that the trial judge omit a jury instruction on 

consciousness of guilt because the defense "pretty much 

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

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

that there was no actual stipulation that the defendant had 

committed the homicide, and therefore the burden remained on the 

Commonwealth to prove beyond a reasonable doubt that the 

defendant did so, and a consciousness of guilt instruction was 

therefore pertinent and appropriate.

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

does not contend that a consciousness of guilt instruction 

should have been omitted in its entirety but rather that the 

judge, in exercising discretion to give such an instruction, 

 

24 With the assistance of a committee of trial court judges, 

this court currently is reviewing the Model Jury Instructions on 

Homicide that were published in 2013. The proposed instruction 

set out in the Appendix is a possible form of a revised Mutina

instruction, but we invite the committee to review and, if 

appropriate, propose revisions to this proposed instruction. 

For the present, upon request by a defendant, a judge should 

give the provisional Mutina instruction set forth in the 

Appendix.
28

committed reversible error in not limiting the jury's 

consideration of consciousness of guilt evidence to the issue of 

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

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

the trial judge noted, although the defendant did not contest 

that he had killed the victim, the Commonwealth was still 

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

the evidence of consciousness of guilt was relevant to this 

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

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

guilt is relevant to whether homicide occurred). Cf. 

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

judge to give identification instruction, although 

identification not contested; necessary for Commonwealth to 

prove beyond reasonable doubt identification of defendant as 

person who committed crime, notwithstanding concessions by 

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

appeal recognizes, actions taken by the defendant following the 

killing of the victim that reasonably could be interpreted to 

reflect consciousness of guilt25 were relevant to an assessment 

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

 

25 Such acts included, for example, setting a fire in 

Seagull House, arguably seeking to burn evidence of or even burn 

down the locus of the killing; wrapping and discarding the 

victim's body in a church parking lot removed from the scene of 

the killing; stealing and changing into different clothes; and 

trying to secure a place to stay with relatives and out of view.
29

responsible. Accordingly, an instruction on consciousness of 

guilt was entirely proper in the circumstances of this case. 

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

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

that, based on the extensive evidence of his mental illness 

presented at trial, this court should exercise its power of 

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

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

substantial evidence that he lacked criminal responsibility at 

the time he killed the victim. However, the Commonwealth 

presented substantial evidence to the contrary. The jury were 

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

witnesses and instead credit the contrary evidence, including 

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

the defendant was criminally responsible. "Tragic as this case 

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

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

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

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

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

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

Judgment affirmed.
Appendix.

PROVISIONAL MUTINA INSTRUCTION1

Consequences of Verdict of Not Guilty by Reason of Lack of 

Criminal Responsibility. As I have previously instructed, your 

decision should be based solely on the evidence and the law of 

this case, without regard to the possible consequences of the 

verdict[s]. You may not consider sentencing or punishment in 

reaching your verdict[s]. However, I am going to tell you what 

happens to a defendant if he [or she] is found not guilty by 

reason of lack of criminal responsibility.

First, the court may order the defendant to be hospitalized 

at a mental health facility for a period of observation and 

examination. During this observation period or in any event 

within sixty days after a verdict of not guilty by reason of 

lack of criminal responsibility, the district attorney or other 

appropriate authorities may petition the court to commit the 

defendant to a mental health facility or to Bridgewater State 

Hospital. If the court concludes that the defendant is mentally 

ill and that his [or her] discharge would create a substantial 

likelihood of serious harm to himself [or herself] or others, 

then the court will grant the petition and commit the defendant 

to a proper mental facility or to Bridgewater State Hospital, 

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

months and every year thereafter, the court reviews the order of 

commitment. If the defendant is still suffering from a mental 

disease or defect and is still dangerous, then the court will 

order the defendant to continue to be committed to the mental 

facility or to Bridgewater State Hospital. There is no limit to 

the number of such renewed orders of commitments as long as the 

defendant continues to be mentally ill and dangerous; if these 

conditions do continue, the defendant may remain committed for 

the duration of his [or her] life.

If at some point the defendant is no longer mentally ill 

and dangerous, the court will order him [or her] discharged from 

the mental health facility or from Bridgewater State Hospital 

after a hearing. The district attorney must be notified of any 

hearing concerning whether the person may be released, and the 

district attorney may be heard at any such hearing. However, 

the final decision on whether to recommit or release the 

defendant is always made by the court.

 

1 See Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12 

(1975).
2

This is what happens if you find the defendant not guilty 

by reason of lack of criminal responsibility.