Heard: April 6, 2018.
found and returned in the Superior Court Department on
November 28, 2007.
pretrial motion to suppress evidence was heard by David A.
Lowy, J., and the cases were tried before Richard E. Welch,
Richard L. Goldman for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.
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,
summarize the facts that the jury could have found at trial,
reserving certain details for our discussion of the legal
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.
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. He was prescribed mood
stabilizing medication, Depakote; an antipsychotic
medication, Risperdal; and an antidepressant. During this
hospitalization, he threatened to kill the victim.
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
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.
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. During their
visit, they stayed in the victim's sister's
one-bedroom apartment in Lynn.
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.
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. 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. 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
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.
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
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." The hypomania was exhibited by
"restlessness" and "agitation," and the
depression was exhibited by "subjective reports of
depression . . . [and] difficulty sleeping."
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."
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.
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."
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."
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
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.
Admission of statement to psychiatrist.
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.
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.
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."
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
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.
asked the defendant medical questions, but did not give him
Lamb warnings. 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" and had a "thought process [that]
appeared goal oriented." 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.
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 ...