Heard: May 5, 2017.
found and returned in the Superior Court Department on
January 15, 2008.
cases were tried before Kenneth J. Fishman, J.
Jay Black for the defendant.
A. Cusick, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher,
November 2, 2007, the defendant struck Robert Moore multiple
times with a baseball bat in the basement of Moore's
home, killing him, and then attacked his daughter-in-law,
Nancy Moore, with the baseball bat and a shod foot when she
went downstairs to look for him, nearly killing her. A
Superior Court jury convicted the defendant of murder in the
first degree on the theory of extreme atrocity or cruelty for
his killing of Robert,  and of various indictments for his
brutal attack of Nancy, including armed assault with the
intent to murder. The issue at trial was not whether the
defendant committed these acts; his attorney admitted that he
did so in his opening statement. The issue was whether the
Commonwealth proved beyond a reasonable doubt that he was
criminally responsible for his actions.
defendant presents five claims on appeal: (1) that the trial
judge abused his discretion in denying a motion for a
mistrial after the Commonwealth's expert witness
commented on the credibility of the defendant or the
defendant's expert witness; (2) that the conviction of
armed assault with the intent to murder should be reduced to
assault with the intent to murder because that is how the
verdict slip characterized the indictment; (3) that the
judge's instruction to the jury describing what would
happen if the jury found the defendant not guilty by reason
of lack of criminal responsibility created a substantial
likelihood of a miscarriage of justice; (4) that the absence
of a jury instruction regarding the effects of drugs on the
defendant's criminal responsibility created a substantial
likelihood of a miscarriage of justice; and (5) that we
should exercise our authority under G. L. c. 278, § 33E,
to grant the defendant a new trial or reduce his conviction
of murder in the first degree to murder in the second degree
or manslaughter because the verdict was not consonant with
justice. We affirm the defendant's convictions and
conclude that the defendant is not entitled to relief under
G. L. c. 278, § 33E.
the defendant contends that the murder verdict was not
consonant with justice, we describe the evidence at trial in
some detail, focusing on the evidence regarding the
defendant's criminal responsibility.
Evidence of the crime.
defendant worked as a foreman at a small irrigation company
that installs landscape irrigation systems for homes and
small commercial properties. As foreman, his job was to
design the irrigation system to be installed at the
customer's property and to install it. On the morning of
the events at issue, the defendant was the foreman for the
installation of an irrigation system at Robert's home in
Needham. The defendant arrived early to design the
installation and later was joined by a fellow employee,
Steven Erickson, who assisted the defendant with the
installation, which involved laying the piping for the system
and installing heads, valves, a control clock, and a timer.
When Erickson arrived, driving the company's truck, the
defendant was planting fluorescent flags in the backyard to
"stake out" the irrigation system. Erickson
testified that there was nothing unusual about his
conversation with the defendant that morning. When the
defendant and Erickson took a break, Robert came to the back
yard to bring them cookies and milk. Moore's grandson,
James, was also there, painting the side of the house.
mid-morning, Michael White, the coowner of the irrigation
company, came to the site to check on the progress of the
installation. The defendant and Erickson had completed about
eighty per cent of the job by the time White arrived. White
testified that the defendant "appeared fine" and
was not acting bizarrely or unusually. White also said that
Robert was joking with the men about how he should have just
painted his lawn green. White did not stay long and left
sometime between 11 and 11:30 A.M.
the final remaining tasks was the installation of the
irrigation system's control clock and timer inside the
home. Erickson usually installed the device, but on this
occasion the defendant wanted to perform the job. Robert
opened the bulkhead door to the cellar so that the defendant
could enter the home and install the control clock and timer.
The installation usually took around fifteen minutes, but
Erickson noted that it seemed to be taking the defendant
"quite a while" to install the control clock, so he
knocked on the bulkhead door. The defendant answered but did
not open the door.
11:23 A.M., Robert telephoned his son from
his home number in the kitchen and asked for the name of the
"head guy" of the irrigation company. Robert's
son had recommended the company to his father, but he could
not recall the name of the owner when speaking with his
father that morning. A person speaking from the kitchen on
the first floor could be heard by a person in the basement,
but there was no evidence confirming that the defendant heard
what Robert had said in this telephone call. A digital
forensics State police officer testified that between 11:30
and 11:45 A.M., Robert's computer was
used to perform search inquiries for different irrigation and
lawn care Web sites.
around noon, Erickson asked James to open the bulkhead door
to see why the defendant was taking so long to install the
control clock and timer. James jogged through the house and
into the cellar, where he passed the defendant, unlocked the
bulkhead door, and continued outside; James did not see any
blood in the cellar. The defendant followed James outside.
James described the defendant as "kind of irritated or
agitated" after he came out of the cellar. The defendant
twice walked directly under the ladder James was working on,
and asked, "Where is the old man?" James replied
that he did not know.
said the defendant "looked normal" when he emerged
from the cellar, but that he was "definitely
sweating" and was "shoving rubber gloves down his
pants"; the installation of the control clock and timer
did not require the wearing of gloves. Erickson asked the
defendant what he wanted for lunch, and Erickson left to
travel to Dedham to purchase lunch.
James's mother, arrived at the home at around 12:30
P.M. She asked James whether he had seen
his grandfather, and he said, "No." Nancy looked
through the home and noticed that the basement door was open.
She walked down the stairs to the cellar and saw the
defendant, who asked her if he could use the bathroom. When
she turned to go back up the stairs to show him one, the
defendant grabbed her with an arm around her neck and started
punching her continuously in the head. Nancy "tried to
fight" and remembered "twisting around and just
trying to fight, and . . . yelling." The last thing she
remembered before losing consciousness was seeing the
defendant "stomping on [her] face."
finished painting, put away his supplies, and went into the
home to wash up. While he was washing his hands, he heard a
moaning sound coming from the basement. When he reached the
bottom of the stairs, he saw his mother lying face down, near
a "bloody baseball bat, " with so much blood in her
hair and face that he did not recognize her. He then saw his
grandfather on the floor in the utility room of the basement,
with a large open gash in his skull, lying in a pool of
blood; a mop was in the pool of blood. James, fearing for his
life, grabbed the baseball bat, ran out of the house, and
asked two women walking on the street to "call
911." The defendant was standing in front of the house
and asked James, "What do you want to call 911 for? We
didn't do nothing." The defendant "took
off" as James tried to speak to the two women who were
telephoning 911. One of the two women described the
defendant's appearance as "very, very red and
sweaty"; the other testified that the defendant looked
"really dazed and confused." Both of the women said
that, after the defendant looked toward them, he ran away
from the house, and they did not see him again.
State police canine unit responded to the emergency call at
approximately 1 P.M., and quickly launched
a search of the surrounding area. At approximately 3:45
P.M., while searching through a marshy area
near Route 128 and the commuter railroad, a State trooper
came upon the defendant, who was "[lying] in a
depression in the ground" and had "pulled
vegetation over himself so that he was partially obscured
from view." The defendant stood up as the trooper
approached and, ignoring the trooper's commands, began to
struggle with the canine, who had bitten him on the arm. The
defendant soon surrendered and was placed under arrest.
defendant was being transported to the police station,
helicopters hovered above, and the defendant asked, "Is
this all over the news?" A different officer testified
that he overheard the defendant telling his wife on the
telephone at the police station, "I'm in a heap of
trouble here. This is important."
police station, the defendant waived his Miranda rights and
agreed to speak with the police in a video-recorded
interview. He told the police that he "just blacked out,
" and had no recollection ...