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Commonwealth v. Waweru

Supreme Judicial Court of Massachusetts, Essex

July 31, 2018


          Heard: April 6, 2018.

         Indictments found and returned in the Superior Court Department on November 28, 2007.

         A pretrial motion to suppress evidence was heard by David A. Lowy, J., and the cases were tried before Richard E. Welch, III, J.

          Richard L. Goldman for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.

          KAFKER, J.

         A jury convicted the defendant, Patrick Waweru, of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty, among other offenses. The defendant's primary defense at trial was that he lacked criminal responsibility for the murder because he suffers from mental illness. On appeal, the defendant argues error as to (1) the motion judge's denial of his motion to suppress statements made to a psychiatrist who interviewed him in the presence of police officers guarding him at the hospital; (2) the jury instructions regarding the presumption of sanity, the consequences of finding the defendant not guilty by reason of insanity, the failure to take prescribed medications, and reasonable doubt; and (3) the denial of his request for a jury-waived trial. For the reasons stated below, we affirm. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E.

         1. Background.

         We summarize the facts that the jury could have found at trial, reserving certain details for our discussion of the legal issues.

         The defendant was in an on-again, off-again relationship with the victim. The couple had two children together. The victim's sister occasionally lived with the victim and the defendant, but the sister did not get along with the defendant. The victim's mother also lived with the victim and the defendant for a time.

         The defendant has a history of mental illness. In 2002, he was diagnosed with bipolar disorder II and a personality disorder with impulsive features. He received outpatient medical health care. In 2005, he was hospitalized for taking an overdose of his prescribed psychiatric medications. He reported feeling that he was being "mistreated by his girlfriend and the legal system." During his hospitalization, the defendant was diagnosed with a major depressive disorder, but the hospital clinicians did not find sufficient evidence to substantiate a bipolar disorder II diagnosis. In early 2007, he was hospitalized and again diagnosed with bipolar disorder.[1] He was prescribed mood stabilizing medication, Depakote; an antipsychotic medication, Risperdal; and an antidepressant. During this hospitalization, he threatened to kill the victim.

         At the time of his arrest, the defendant was working two jobs, one as a residential counsellor for a mental health facility, and the other at a nursing home. The victim's sister testified that when the defendant and the victim were fighting, the defendant would periodically say that "even if he killed [the victim's sister] or [the victim], nothing would happen to him because ... he was bipolar."

         In early 2007, the defendant moved out of the apartment he shared with the victim. Around this time, he told the victim's mother, "When you get to Kenya, be prepared to receive two coffins, because I'm going to kill these daughters of yours. And I'm starting with [the victim's sister]. [She] will not raise my children. Instead, they'll be raised by the [S]tate." Later the same year, the victim, her children, and her mother moved to Delaware, primarily to get away from the defendant. The victim's sister remained in Massachusetts.

         On the weekend of October 14, 2007, the victim, her daughters, and her mother returned to Massachusetts, ostensibly for a Housing Court appearance related to the apartment the defendant and the victim had previously shared.[2] During their visit, they stayed in the victim's sister's one-bedroom apartment in Lynn.

         The victim left her sister's apartment in the early morning on October 15. She and the defendant spent the day running errands. Later that day, the victim and the defendant drove back to her sister's apartment. The victim called her sister from outside, at approximately 9:27 P.M. Her sister told her to come inside. When the victim entered the apartment a few minutes later, she locked the door behind her. The victim's sister observed that the victim appeared "somewhat calm, but nervous at the same time." The victim sat with the rest of her family in the living room and spoke with them, while the defendant continued to wait outside.

         Approximately one-half hour after the victim arrived, the defendant appeared at the front door to the apartment and shouted through the door that he wanted his cellular telephone (cell phone) back.[3] When the victim's mother heard the defendant's voice, she quickly placed a chair against the door and sat on it. The victim's sister told the defendant that he would get his cell phone back. She called each of her neighbors in the building to help facilitate a transfer of the cell phone, but no one answered. The defendant asked for his cell phone a second time, and the victim's sister again responded that he would get his cell phone back. The victim's mother told the victim and her sister that they should call the police. At some point, the victim's mother moved the chair away from the door. Not long after, the defendant broke through the door with a two- by-four piece of lumber taken from outside the apartment.[4] The victim's mother testified that the defendant said something to her, but she could not understand him. The defendant immediately hit the victim's sister over the head with the piece of lumber. He then grabbed the sister by the collar, but she managed to pull away. She staggered out of the apartment and went upstairs, screaming for help. The victim's four year old daughter followed her.

         The defendant hit the victim over the head with the same piece of lumber he had used to hit her sister. The victim fell to the ground and was seemingly knocked unconscious. The defendant took out a knife that he had hidden in his sock. The victim's mother attempted to grab the knife, but cut herself when the defendant pulled away. The defendant bent down and stabbed the victim twenty-four times in the back, the chest, the head, the neck, and the left arm. During the attack, their one year old daughter was crawling between the defendant, the victim, and the victim's mother. After stabbing the victim, the defendant fled the scene and disposed of the murder weapon in a cemetery.

         The victim's sister was able to reach one of her neighbors, who telephoned the police. The victim was still alive when the police arrived, but died shortly thereafter. The defendant was subsequently arrested at his apartment. The arresting officers observed that the defendant appeared to be "under the influence of something." The defendant told the officers that he had "[taken] some pills." He was admitted to Union Hospital for treatment of a suicide attempt. The defendant was placed in the intensive care unit under police guard. A psychiatrist at the hospital, Dr. Maureen McGovern, performed a suicide risk evaluation on the defendant. He could not remember the night of the murder, but told the doctor that the victim "was the cause of all his problems" and that "he had thoughts about hurting her."[5]

         At trial, the defendant did not contest that he killed the victim, but argued that he lacked criminal responsibility at the time of the murder. Defense counsel called an expert witness, a forensic psychologist, who had performed a psychological evaluation of the defendant. The expert diagnosed the defendant with bipolar disorder II, with "mixed characteristics of depression and hypomania."[6] The hypomania was exhibited by "restlessness" and "agitation," and the depression was exhibited by "subjective reports of depression . . . [and] difficulty sleeping."

         The defense's expert witness testified that the defendant had been depressed, in part because he felt that the victim was keeping him from seeing their children. The defendant indicated to the expert that he was having trouble sleeping in the days leading up to the murder. He had also stopped taking his mood stabilizing medication because "he had been feeling good."

         The expert testified that the defendant indicated his "spirits went up" on the day of the murder because the victim had indicated a willingness to stay with him for a period of time to "help to extricate him from the depression that he was experiencing." This tentative plan would involve the victim going back to Delaware, gathering a few items for herself and the children, and returning to stay with the defendant.

         The defense expert testified that, on the night of the murder, after waiting for the victim outside her sister's apartment for approximately ten to twenty minutes, the defendant began thinking she was not coming back. The defendant believed the victim's sister and mother would not allow him to go to Delaware with the victim. He indicated to the psychologist that "his intent was to go down [to the sister's apartment] and get [the victim] so they could be on their way to Delaware."

         The defendant explained to the psychologist that he was carrying a knife in his sock in order to kill himself. He could not recall what happened after he reached the front door of the sister's apartment. Given the defendant's inability to recall the murder itself, the defense expert was unable to reach a definitive conclusion as to whether the defendant lacked criminal responsibility at the time of the murder. However, the expert testified that "[the defendant's] behaviors are consistent with an inability to conform his behavior to the requirements of the law."

         The Commonwealth called its own expert witness on rebuttal, a forensic psychiatrist, who testified that he was not convinced that the defendant was bipolar, and did not believe that the defendant had a mental disease or defect at the time of the murder. The Commonwealth's expert further stated, "There's nothing that, in my opinion, . . . resulted in the lack of substantial capacity to conform [the defendant's] conduct to requirements of the law." He also indicated that individuals with bipolar disorder usually "don't have a pattern of violence directed at others."

         A jury convicted the defendant of murder in the first degree, home invasion, armed assault with intent to murder, assault and battery of the victim's sister by means of a dangerous weapon, and wanton and reckless endangerment of a child. He was acquitted of assault and battery of the victim's mother by means of a dangerous weapon.

         2. Discussion.

         a. Admission of statement to psychiatrist.

         Prior to trial, the defendant sought to suppress statements he made to a psychiatrist after the murder. His motion to suppress was denied. On appeal, the defendant argues that the motion judge erred in denying his motion because the statements were (1) involuntary; (2) protected by the psychotherapist-patient privilege; and (3) obtained in violation of his due process rights. We address each argument in turn.

         We summarize the motion judge's factual findings, supplemented by testimony from the hearing that was credited by the motion judge. See Commonwealth v. Walker, 466 Mass. 268, 270 (2013). See also Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). On the night of the victim's murder, police went to the defendant's residence. Officers knocked on the defendant's apartment door and heard a large crash. The officers knocked on the door again and asked, "Are you all right?" The defendant answered "I can't walk." Officers heard what sounded like someone falling, and entered the residence to find the defendant holding the door. The defendant confirmed his identity to the officers. He was on the floor with his legs tucked under him. The motion judge found that the defendant "appeared intoxicated and had blood on his jean pants." The officers placed the defendant in custody. They asked the defendant if he had taken drugs, and he responded affirmatively. There were drugs and packets of Clonazepam in the area around the defendant.

         The defendant was taken to Union Hospital. He appeared to be conscious but under the influence. He was placed in a single room in the intensive care unit and shackled to a hospital bed. The defendant's toxicity screens came back negative, but he had to be intubated because he was "lethargic to the point that he could not protect his own airways."

         Two officers arrived at the hospital to secure the defendant and keep him under observation. When they arrived, the defendant was lying down while somewhat propped up in the hospital bed. The officers noticed that the defendant's eyes were closed at times. They sat in chairs located inside the room, "past where the defendant was occupying the bed." Various hospital personnel visited the defendant, and the defendant was able to respond appropriately to their questions. At no point did the officers give the defendant Miranda warnings.

         The physician who admitted the defendant asked an attending psychiatrist at the hospital, McGovern, to do a psychological consultation on the defendant. McGovern spoke with the defendant more than twelve hours after his arrest and in the presence of the police officers. During this conversation, McGovern was located on one side of the bed and the officers were seated on the other. The officers did not, however, engage McGovern or the defendant in conversation.

         McGovern asked the defendant medical questions, but did not give him Lamb warnings.[7] See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974). His responses appeared to be appropriate to the questions asked. The defendant did not slur his speech, appear injured, or complain of pain. His vital signs were normal. McGovern further observed that the defendant was quiet, subdued, calm, and cooperative. She noted that the defendant had been medicated with a blood thinner and a medication to reduce stomach acidity. Neither of these medications affected his mental state. Although he appeared slightly drowsy, he was able to maintain attention throughout the thirty-minute interview with the psychiatrist. McGovern believed that the defendant was "cognitively intact"[8] and had a "thought process [that] appeared goal oriented."[9] However, she was concerned about his emotional stability and worried that he might attempt suicide again. She diagnosed him with depression, with elements of mania.

         During her evaluation, McGovern asked the defendant if he wished to harm himself or others. He indicated that he wanted to harm himself, and stated, "Since Friday, I was thinking I wanted to kill my ...

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