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Commonwealth v. Odgren

Supreme Judicial Court of Massachusetts, Middlesex

September 4, 2019


          Heard: April 1, 2019.

         Indictment found and returned in the Superior Court Department on March 1, 2007.

         Following review by this court, 455 Mass. 171 (2009), a pretrial motion to suppress evidence was heard by S. Jane Haggerty, J., and the case was tried before her.

          Patricia L. Garin (Jonathan Shapiro also present) for the defendant.

          Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

          Merritt Schnipper & Robert F. Hennessy, for youth advocacy division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

          CYPHER, J.

         A jury convicted the defendant, John Odgren, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in the stabbing death of a schoolmate. At trial, the defendant conceded that he had killed the victim and asserted that he lacked criminal responsibility because at the time of the stabbing he was in a transient psychotic state brought on by a confluence of mental illnesses and, as a result, lacked the substantial capacity both to appreciate the wrongfulness of his actions and to act in conformity with the law. In his direct appeal, he asserts that the judge erred in instructing the jury, as well as in admitting several conversations recorded while the defendant was in pretrial detention. 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, to grant a new trial or to reduce or set aside the verdict.


         We summarize the facts that the jury could have found, reserving certain details for our discussion of the legal issues. On January 19, 2007, the defendant, then sixteen years old and attending Lincoln-Sudbury Regional High School, stabbed to death a schoolmate in a school bathroom using a kitchen knife that he had brought with him that morning. On the morning of the killing, the defendant entered a bathroom located in the vicinity of his classroom, stayed for several minutes and then went to another bathroom on a different floor, where he encountered the victim.

         The defendant admitted to stabbing the victim, and the details of the encounter were provided primarily through the testimony of another student who was using one of the bathroom stalls at the time of the murder. The witness heard a brief struggle between the defendant and the victim, during which he heard the victim exclaim, "What are you doing? Stop that. Ow, ow. You're hurting me." He then heard the victim leave the bathroom and noticed three or four drops of blood at the foot of his stall. The defendant, who was still inside the bathroom, repeated, "Oh, my God. Oh, my God. What did I just do?" several times and, after a pause, say, "Whoever is in that stall, I need you to go get help."

         When the witness opened the stall door, the defendant was sitting on the floor with his arms wrapped around his knees, "kind of clutched up in a fetal-type position," and a large, knife was on the bathroom floor. The defendant again asked the witness to find help and stated that he would not hurt him. When the witness left the bathroom, the victim was lying in the hallway just outside the bathroom door.

         When the witness returned to the area with help, he saw the defendant kneeling next to the victim. The defendant stated, "Don't let him die. It was all me. I did this. I just went crazy." He also asked if the victim was "okay" several times and continued, "I think I did it. I don't know why. I blank sometimes, but I'm not psychotic."[1] At that time, the victim was breathing slowly and had a weak pulse, but when a school nurse arrived moments later, the victim did not have a pulse. Shortly thereafter, he was pronounced dead at a local hospital. An autopsy established that the victim had lacerations on his neck and chin and defensive wounds on his fingers and that he died from stab wounds to his heart, left lung, and liver.

         At trial, the defendant did not contest that he had killed the victim; rather, he argued that he lacked criminal responsibility because, due to a mental disease or defect, he lacked the substantial capacity at the time of the killing both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law.

         A history of the defendant's mental health issues was provided by the testimony of his father. As a young child, the defendant engaged in atypical social behavior, was the object of bullying, was unable to socialize with other children, became increasingly fascinated with weapons and the macabre, and often expressed suicidal and homicidal ideations.

         The defendant began receiving treatment for major depressive disorder beginning in the third grade. He was subsequently diagnosed with Asperger's syndrome, an autism-spectrum disorder, as well as attention deficit hyperactivity disorder, general anxiety with symptoms similar to that of obsessive compulsive disorder, oppositional defiant disorder, affective dysregulation, cerebral dysfunction, and mood dysregulation not otherwise specified. The defendant attended several schools with programs aimed at addressing his special needs before entering a program at the public high school in Lincoln-Sudbury in 2006.

         To support his defense of lack of criminal responsibility, defense counsel called three mental health experts -- Dr. Richard Barnum, a child and adolescence psychiatrist; Dr. Ross Greene, a clinical child psychologist; and Dr. Montgomery Brower, a forensic psychiatrist with a specialty in neuropsychiatry -- who opined in essence that the defendant suffered from one or more related mental illnesses, namely, Asperger's disorder and mood disorder, and that those illnesses, coupled with his increasing feelings of anxiety and paranoia, led to his experiencing a brief psychotic episode during which he was unable to appreciate the wrongfulness of his actions or conform his conduct to the requirements of the law.

         Brower testified that at the time of the incident, "symptoms of paranoid psychosis, mood disorder, and also cognitive deficits related to Asperger's disorder substantially impaired [the defendant's] ability to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law." He was of the opinion that the defendant had developed "a very fearful and anxious take on the world because of his difficulties with social interactions and his difficulty reading situations and the repeated conflicts and problems that he had had as a result," and, accordingly, "he was very much increasingly on his guard and afraid of things that might happen to him." Brower concluded that at the time of the murder the defendant was in "a paranoid state" without "the ability to really distinguish between fantasy and reality," and that he "lash[ed] out in a way that reflected a complete loss of control.

         Similarly, Barnum opined that at the time of the stabbing the defendant was essentially experiencing an "autistic meltdown," and was so overwhelmed that he could not "undertake any kind of sort of clear action or thought."[2] Greene testified that the defendant was experiencing delusional thinking and that something, although he could not say what, happened in the bathroom to cause the defendant to believe that he was in serious danger, prompting him to react in an "extremely emotional, explosive fashion," and in a way that was "removed from reality" and consistent with transient psychosis.[3]

         The Commonwealth called its own expert witness on rebuttal, Dr. Alison Fife, a psychiatrist, who testified that, although the defendant had "Asperger's syndrome, depression, and attention deficit disorder" at the time of the killing, "he did not lack the substantial capacity to appreciate the wrongfulness of his actions and he did not lack the substantial capacity to conform his behavior to the requirements of the law." Fife opined that there was no indication that the defendant was experiencing hallucinations or delusional thinking on the day of the stabbing. She considered it significant that after the murder the defendant said nothing about being in fear for his life; in fact, he did not say anything that would indicate that "he was operating under a paranoid, delusional thought process." To the contrary, he was "clear, coherent, and asking for help in a calm way."

         The jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.


         1. Jury instructions.

         When the judge reached the substantive crimes at issue in the course of her final charge, she instructed the jury on the elements of murder in the first degree based on the theories of deliberate premeditation and extreme atrocity or cruelty, and murder in the second degree, mental impairment, and criminal responsibility. In doing so, the judge followed the Model Jury Instructions on Homicide (1999) (model instructions), which were operable at the time of the defendant's trial.

         The defendant argues that the judge erred in instructing the jury on malice and the inference of sanity, where the defendant is a juvenile relying on the lack of criminal responsibility defense; the order in which she instructed the jury on the elements of murder, the defense of lack of criminal responsibility, and mental impairment; and failing to give the defense's requested instruction concerning the consequences of a verdict of not guilty by reason of lack of criminal responsibility.

         "When reviewing jury instructions, we 'evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words'" (citation omitted) . Commonwealth v. Vargas, 475 Mass. 338, 349 (2016) . "We do not consider words from the instructions in bits and pieces or in isolation from one another." Id. With one exception, the defendant objected to the challenged instructions at trial. Therefore, we review for prejudicial error. Commonwealth v. Waweru, 480 Mass. 173, 187 (2018). "This means that we inquire whether there is a reasonable possibility that the error might have contributed to the jury's verdict" (quotation, citation and alteration omitted). Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017). "An error is not prejudicial if it did not influence the jury, or had but very slight effect" (quotation and citation omitted) . Id. See Commonwealth v. Oliveira, 445 Mass. 837, 845 (2006).

         a. Instructions on malice and intent.

         As to malice, the judge instructed the jury: "As a general rule, you are permitted to infer that a person who intentionally uses a dangerous weapon on another person is acting with malice. A dangerous weapon is an item which is capable of causing serious injury or death. I instruct you as a matter of law, the knife is a dangerous weapon." As to intent, she instructed the jury: "[You] may but need not necessarily infer from the conduct of a person that he intended the natural and probable consequences of his own acts." The defendant argues essentially that the inclusion of these instructions was prejudicial error because the jury cannot infer malice and intent from the actions of a juvenile with multiple mental health diagnoses.

         As a general rule, "[t]he jury are permitted to infer malice from the use of a dangerous weapon, even in connection with first prong (intent to kill) malice"[4] (quotations and citations omitted). Commonwealth v. Keown, 478 Mass. 232, 250 (2017), cert, denied, 138 S.Ct. 1038 (2018). See Model Jury Instructions on Homicide 105 (2018) (providing instruction that jury may infer intent to kill from use of dangerous weapon). "It is a principle frequently cited with approval in our cases, including those where there is evidence of intoxication or mental impairment on the part of the defendant." Commonwealth v. Miller, 457 Mass. 69, 74 (2010), and cases cited. See, e.g., Commonwealth v. Szlachta, 463 Mass. 37, 45-46 (2012). The inference must be presented as permissive. See Commonwealth v. Albert, 391 Mass. 853, 860-861 (1984) ("Certainly, the jury were entitled to infer malice from the intentional use of a deadly weapon, so long as the judge's instructions did not compel them to do so"). See also Commonwealth v. Dyous, 436 Mass. 719, 734-735 (2002). The same applies to the inference of intent. See Commonwealth v. Brown, 477 Mass. 805, 815-816 (2017), cert, denied, 139 S.Ct. 54 (2018) ("no constitutional infirmity where a jury instruction creates only a permissive inference" of intent). Here, the judge's instruction was in accordance with the model instructions and appropriately permissive and properly instructed the jury on the use of dangerous weapons. There was no error.

         The defendant does not challenge as a general matter the principle that where a defendant purposefully uses a dangerous weapon to inflict fatal wounds, a jury may infer that the defendant acted with malice. He argues rather that the jury cannot infer either malice or intent from his actions because it presupposes that he is sane and "it ascribes [to him] an adult's ability to reason" in contravention of our holding in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), S.C., 471 Mass. 12 (2015). We have discussed supra that such instructions are appropriate in cases where evidence of mental impairment has been introduced so long as they clearly are permissive. See, e.g., Miller, 457 Mass. at 74-75. Therefore, we focus our attention on the import of the defendant's juvenile status.

         "There is no question that our scientific and legal understanding of adolescent brain development has advanced since the defendant's trial." Commonwealthv.Fernandez, 480 Mass. 334, 341-342 (2018) (collecting cases). "It is now well established, based on 'science, social science, and common sense,' that adolescents are significantly different from adults for purposes of analysis under the Eighth Amendment to the United States Constitution." Id. at 342, quoting Diatchenko, 466 Mass. at 660. See Commonwealthv.Okoro, 471 Mass. 51, 59-60 ...

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