Supreme Judicial Court of Massachusetts, Middlesex
Heard: April 1, 2019.
found and returned in the Superior Court Department on March
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
Marguerite T. Grant, Assistant District Attorney, for the
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.
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.
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.
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
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.
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." 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.
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.
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
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.
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.
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.
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." 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
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."
jury convicted the defendant of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
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 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
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).
Instructions on malice and intent.
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.
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" (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.
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
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.
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