Supreme Judicial Court of Massachusetts, Worcester
Heard: December 9, 2016.
found and returned in the Superior Court Department on August
cases were tried before Richard T. Tucker, J.
Deirdre L. Thurber for the defendant.
M. Oftring, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
an armed home invasion of an apartment in Dudley, the
defendant, Christian Muller, and an accomplice shot and killed
two of the occupants and critically wounded a third. After a
jury trial, the defendant was convicted of two counts of
murder in the first degree, on the theories of deliberate
premeditation and felony-murder,  armed assault with intent to
murder, armed home invasion and unlawful possession of a
trial, the defendant admitted that he had shot the victims;
his primary defense was that he lacked criminal
responsibility because of mental illness and cocaine
addiction. On appeal, the defendant argues that (1) the jury
instruction on criminal responsibility and voluntary
intoxication was erroneous because it failed to comply with
Commonwealth v. Berry, 457 Mass.
602 (2010), S_.C., 466 Mass. 763 (2014), and Commonwealth
v. DiPadova, 460 Mass. 424 (2011); (2) certain of the
other jury instructions were fatally flawed; and (3) the
prosecutor's closing argument was improper. We affirm the
convictions and decline to grant relief pursuant to G. L. c.
278, § 33E.
summarize the facts as the jury could have found them,
reserving additional details for later discussion.
The Commonwealth's case.
evening of July 8, 2007, Joanne Mercier was in her bedroom in
the third-floor apartment that she shared with her brother,
Aaron Bash, in Dudley. Bash was asleep in his bedroom and
their friend, Denise Johnston, was sleeping on a sofa in the
living room. Shortly after midnight on July 9, the defendant
and Marc Letang kicked down the back door and entered the
apartment with their guns drawn. The men walked through the
kitchen and entered Mercier's bedroom, asking where Bash
was. After Mercier told them that Bash was asleep in his
bedroom, the men left Mercier's room and awoke Bash. As
Mercier followed the men into Bash's bedroom, she heard
the defendant asking Bash whether he was sleeping with the
defendant's wife. Bash denied the accusation.
went into the living room and brought Johnston into
Bash's bedroom at the defendant's request. The
defendant was at the foot of the bed facing the victims, who
were all sitting on the bed, while Letang stood in the corner
of the room. The defendant continued to accuse Bash of
sleeping with his wife and Bash repeatedly denied it, stating
that he would not do that to his friend. Finally, the
defendant told Bash that if he just admitted it and told the
defendant what he wanted to hear, this would all be over.
When Bash refused to admit to the defendant's
accusations, the defendant said, "Fuck this, " and
shot Johnston in the head. As Bash asked the defendant,
"What the eff are you doing?" the defendant shot
Mercier in the head. When Mercier regained consciousness a
few minutes later, she realized that the defendant and Letang
were gone, and discovered that Johnston was still breathing
despite the gunshot to her head.
had not yet comprehended that she had been shot, but knew she
needed to call an ambulance for Johnston. She retrieved her
cellular telephone and then called to Bash. When Bash failed
to answer her, she looked him and saw that he had been
fatally shot in the head. Mercier was so distraught that she
had to telephone 911 twice because, at first, she could not
remember where she was.
after midnight on July 9, 2007, a patron was leaving a nearby
bar when he heard five to seven loud noises he assumed were
fireworks. Approximately one minute later, he observed two
men, whom he was able to describe, running around the corner;
one of the men was carrying a firearm. The witness heard
someone say, "Go. Let's go, " as the men got
into a vehicle and drove away.
officers entered the apartment, they observed Mercier
conscious and bleeding from her head. She was in shock,
crying and "yelling things, " but was able to
communicate that "Christian" shot her.
then discovered Bash and Johnston. Bash was found on the bed;
he was dead from two gunshot wounds to his head. Johnston was
found near the end of the bed, but she appeared to be alive.
She later died at a hospital of a gunshot wound to her head.
before the shootings, the defendant and Letang had been at
the home of a friend of the defendant, who lived in Webster;
a woman and a man were also there. Both the woman and the
defendant had been smoking "crack" cocaine. The
woman testified that the more "crack" the defendant
smoked, the more "crazy" he became. The defendant
was agitated; he was pacing back and forth, waving his gun
around, saying that he was going to put bullets in their
heads. He also said that Bash owed him money for drugs and
that Mercier was "just a stupid
bitch."Prior to leaving the house, the defendant
said he was going to "take care of some business"
and left with his firearm.
defendant and Letang returned to the friend's home. They
came running up the stairs, saying that they had just
murdered some people. The defendant and Letang told the woman
that if she said anything about their involvement in the
murders that they would "put a cap in her head."
There was discussion about killing the woman because she knew
and had seen too much. The defendant eventually went outside
the house and demanded that the woman join him. He was pacing
in the road with his firearm, telling the woman both that he
did not mean to do it and that he did not commit the murders.
Ultimately, however, the defendant told her that he
"shot the motherfucker, " referring to Bash, and
that he put the three victims on the bed and shot them
execution style. He put the gun to the woman's head
several times, threatening to shoot her in the head if she
said anything about his involvement in the murders.
woman and the defendant walked down the street where the
defendant stopped to hide his gun, which the defense
stipulated was used to shoot the victims, in the cellar of a
home. He warned the woman not to tell anyone where he hid the
gun. Next, they walked to the defendant's parents'
home, where he changed out of his bloody clothing. Finally,
they walked through town and ended up back at the
friend's home where they slept until later that morning.
they woke up, the police had the house surrounded. The
defendant got up, saying, "I didn't do it, " as
he left the house and ran into some woods behind the home,
where he was arrested.
defendant was interviewed by two State police troopers at the
Dudley police department. Although the defendant initially
declined to speak with the officers, after he spoke to his
wife and mother, he agreed to the interview. The defendant
admitted that he was in Webster the night before and
"smoked a bunch of crack, " but initially denied
after the defendant figured out that Mercier had survived and
was told that the police had found his gun, he admitted to
committing the shootings and stated that he knew he was going
to jail. The defendant stated that he had been doing a lot of
drugs that night, and after "the gun went off" and
he shot Johnston, he thought, "If I leave them alive,
I'm going to jail for my life, so I [shot Bash and
told the officers, "When I'm on drugs, I see . . .
lots of things. I get real crazy. I hallucinate ... I have
psych attacks. I get rages. I am a different total
person." The defendant told the officers that he was off
his medications and that he was bipolar and schizophrenic,
had anxiety, and suffered from panic attacks and paranoia. He
also noted that when he is off his medication, he gets even
more paranoid and goes "cuckoo."
The defendant's case.
defendant offered five witnesses in support of his lack of
criminal responsibility defense, including three expert
Dr. Giulia Mezzacappa.
a clinical psychiatrist, evaluated the defendant at an
organization providing mental health services, in February
and June, 2006, one year before the murders. As part of her
psychiatric evaluation of the defendant, Mezzacappa also
interviewed the defendant's family, including his wife,
sister, stepfather, and mother. Based on Mezzacappa's
evaluation of the defendant and interviews with his family,
Mezzacappa diagnosed the defendant with schizoaffective
disorder. At the time of Mezzacappa's February,
2006, evaluation, the defendant had stopped taking his
prescribed antipsychotic and anxiety medications. As a result
of her evaluation, Mezzacappa ...