Supreme Judicial Court of Massachusetts, Middlesex
April 1, 2019
N.E.3d 680] INDICTMENT found and returned in the Superior
Court Department on March 1, 2007.
review by this court, 455 Mass. 171, 915 N.E.2d 215 (2009), a
pretrial motion to suppress evidence was heard by S. Jane
Haggerty, J., and the case was tried before her.
L. Garin, Boston (Jonathan Shapiro, Boston, also present) for
T. Grant, Assistant District Attorney, for the Commonwealth.
Schnipper & Robert F. Hennessy, Springfield, for youth
advocacy division of the Committee for Public Counsel
Services, amicus curiae, submitted a brief.
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.
N.E.3d 681] Background.
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
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. Youre 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,
"Dont 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 dont know why. I blank sometimes, but Im 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 defendants 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.
defendant began receiving treatment for major depressive
disorder beginning in the third grade. He was subsequently
diagnosed with Aspergers syndrome, an autism-spectrum
disorder, as well as attention deficit hyperactivity
disorder, general anxiety with symptoms similar to that of
obsessive compulsive [130 N.E.3d 682] 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, Aspergers 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 Aspergers disorder substantially
impaired [the defendants] 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
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
N.E.3d 683] The Commonwealth called its own expert witness on
rebuttal, Dr. Alison Fife, a psychiatrist, who testified
that, although the defendant had "Aspergers 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
jury convicted the defendant of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
Jury instructions .
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 defenses requested instruction concerning the
consequences of a verdict of not guilty by reason of lack of
"When reviewing jury instructions, we evaluate the
instruction as a whole, looking for the interpretation a
reasonable juror would place on the judges words "
(citation omitted). Commonwealth v. Vargas, 475
Mass. 338, 349, 57 N.E.3d 920 (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,
102 N.E.3d 391 (2018). "This means that we inquire
whether there is a reasonable possibility that the error
might have contributed to the jurys verdict"
(quotation, citation and alteration omitted).
Commonwealth v. Wolfe, 478 Mass. 142, 150, 83 N.E.3d
811 (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, 840
N.E.2d 954 (2006).
Instructions on ...