Commonwealth v. Philip Chism

SUPREME JUDICIAL COURT

COMMONWEALTH vs. PHILIP CHISM

Docket:

SJC-13161

Dates:

October 9, 2024 - February 25, 2025

Present:

Budd, C.J., Gaziano, Wendlandt, Georges, & Wolohojian, JJ.

County:

Essex

Keywords:

Homicide. Rape. Robbery. Evidence, Expert opinion, Scientific test, Hearsay, Relevancy and materiality, Cross-examination, Redirect examination, Disclosure of evidence, Age, Inference, Argument by prosecutor, Photograph. Witness, Expert, Psychiatric examination, Cross-examination, Redirect examination. Criminal Responsibility. Practice, Criminal, Hearsay, Cross-examination by prosecutor, Psychiatric examination, Disclosure of evidence, Discovery, Instructions to jury, Motion to suppress, Argument by prosecutor, Venue, Sentence, Capital case. Jury and Jurors. Constitutional Law, Search and seizure, Sentence. Search and Seizure, Inevitable discovery. Rules of Criminal Procedure.

Indictments found and returned in the

Superior Court Department on November 21, 2013, and January 24, 2014.

A pretrial motion to suppress evidence and

a motion for a change of venue were heard by David A. Lowy, J., and the cases

were tried before him.

Michael R. Schneider (Benjamin Brooks also

present) for the defendant.

David F. O'Sullivan, Assistant District

Attorney, for the Commonwealth.

Melissa Allen Celli & Ryan M. Schiff,

for youth advocacy division of the Committee for Public Counsel Services,

amicus curiae, submitted a brief.

Sara E. Silva & Chauncey B. Wood, for

Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted

a brief.

GAZIANO, J. In the early morning hours of October 23,

2013, a search team found Colleen Ritzer, a Danvers High School math teacher,

dead in the woods outside the high school.

She had been brutally raped, strangled, and stabbed. The defendant was a fourteen year old student

in her freshman math class. A Superior

Court jury convicted the defendant of murder in the first degree on theories of

deliberate premeditation and extreme atrocity or cruelty and, as a youthful

offender, on indictments charging aggravated rape and armed robbery.

The major issue before the jury was

whether the defendant lacked criminal responsibility. On appeal, the defendant contends that the

trial judge impeded his ability to present fully this defense. He raises the following issues: first, whether the judge properly excluded

expert testimony of structural magnetic resonance imaging (sMRI) brain scans

showing abnormalities in the defendant's brain consistent with mental illness;

second, whether the judge erred in prohibiting the defendant's expert

psychiatrist from testifying on direct examination to hearsay statements made

by the defendant; third, whether the prosecutor unfairly cross-examined defense

expert witnesses on irrelevant and prejudicial topics; fourth, whether the

judge erred in requiring the disclosure to the Commonwealth of psychological

testing data generated by a nontestifying defense expert; and, fifth, whether

the Commonwealth's expert psychologist should have been precluded from

testifying after reviewing the defendant's suppressed videotaped confession.

In addition, the defendant asserts that he

is entitled to a new trial based on several other erroneous rulings, and that

the Commonwealth failed to introduce sufficient evidence to support the

aggravated rape and armed robbery convictions.

Finally, he contends that imposition of a forty-year sentence on the

nonhomicide convictions violated the proportionality requirements of art. 26 of

the Massachusetts Declaration of Rights.

For the reasons detailed below, we affirm the convictions and, after a

complete review of the record, decline to exercise our authority under

G. L. c. 278, § 33E, to order a new trial or reduce the verdict

of murder in the first degree.[1]

1.

Facts. We recite the facts the

jury could have found, reserving other facts for our discussion of specific

issues.

a.

The Commonwealth's case. The

twenty-four year old victim began teaching math at Danvers High School (high

school) in September 2012. This was a

dream job for the self-described math enthusiast, who wanted to teach from an

early age. She lived with her parents

and younger siblings in a neighboring town.

In October 2013, the defendant was a

student in the victim's freshman class.

He recently had moved to Danvers from Tennessee with his mother. By that point in the school year, he had a

few friends and was a skilled member of the junior varsity soccer team. The defendant was an average student with

inconsistent effort typical of many first-year students.

On October 22, 2013, the victim taught the

defendant's math class in the last period of the school day, from 1 P.M. to

1:55 P.M. Her classroom was located on

the second floor of the high school's three-story academic wing. The defendant entered the victim's classroom

dressed in a red sweatshirt with a black and yellow backpack on his back and

carried a red nylon drawstring backpack.

Wearing an earbud in one ear and doodling in a notebook, the defendant

appeared uninterested in the lesson and did not participate in a group

activity.

The defendant remained in the victim's

classroom after the last bell. While

teachers were available to offer extra help to students until 2:30 P.M., the

victim confided to a coworker, "I don't know why he is here."[2] Another student stayed after school to visit

the victim and draw on the whiteboard.

In the extra help session, the victim asked the defendant about his

family, his recent move, and what he missed about Tennessee. The defendant appeared annoyed and answered

the victim's friendly questions in a low, "mumbly" tone of

voice.

When the victim stepped out of the room to

make copies and talk to her coworker, the defendant joined his classmate at the

whiteboard. The defendant complimented

her artwork. He wrote her name in

Chinese characters, and she acknowledged that it was "cool." During this interaction, which lasted from

fifteen to twenty minutes, the defendant maintained eye contact with his

classmate and had no apparent difficulties communicating with her. The victim stepped back into her classroom to

inform the students that she had to leave soon.

On her way out, the defendant's classmate told the victim that she was a

"great person . . . really nice . . . [and made] math really easy,"

and expressed disappointment that she did not have math class with the victim

the next day. Observing this

conversation, the defendant looked "annoyed" and "angry

almost." The victim and the other

student left the classroom at the same time, while the defendant lingered

behind.

At 2:55 P.M., the victim entered a

second-floor girl's bathroom.[3] Seconds

later, the defendant, now wearing a light blue hooded sweatshirt, emerged from

the victim's classroom. Armed with a box

cutter knife, he put on a pair of white gloves and followed the victim into the

bathroom.

Approximately eleven minutes later, a

student briefly walked into the bathroom.

Upon opening the door, she observed the naked buttocks of a dark-skinned

person near the bathroom sinks.[4]

Believing that she had interrupted someone changing clothes, the student

hurriedly left the bathroom to avoid embarrassing a classmate.

The defendant exited the bathroom at 3:07

P.M. -- twelve minutes after entering.

He walked briskly with his sweatshirt's hood up and his head down,

carrying a bundle of clothing, which included the victim's black pants. The defendant was gloveless, and there was a

visible bloodstain on his right hand. He

then walked down a stairway and exited the school.

Once outside, the defendant entered a

wooded area alongside the student drop off area. A parent, whose car was parked on the curb,

observed the defendant change clothes while crouched in the bushes. The defendant reentered the school at 3:10

P.M., wearing a white T-shirt and jeans, and was no longer carrying the bundle

of clothes he had removed from the bathroom.

Inside the building, the defendant ducked into the victim's second-floor

classroom and exited with his red sweatshirt draped over his arm, carrying his

black and yellow backpack, along with the victim's black tote bag and purple

lunch bag. He jogged toward the

bathroom, but paused, interrupted by a soccer teammate.

The teammate had expected to meet the

defendant on the soccer field at 3 P.M. for an informal practice session. When the defendant did not arrive, the

teammate went inside the school looking for him. Observing the defendant on the second floor,

the teammate yelled the defendant's nickname.

The defendant did not answer. The

teammate walked up to the defendant and asked him what he was doing. The defendant explained that "he had

lost something and he couldn't find it."

He declined the teammate's offer of help and promised to meet him on the

soccer field. The defendant was sweating

and appeared to be scared.

The teammate followed the defendant

downstairs to the first floor, where he observed the defendant move a large

blue rolling recycling bin from the stairway to the elevator bank. The teammate asked the defendant what he was

doing with the bin. The defendant

answered, "nothing," and again told the teammate he would meet him on

the soccer field. At the elevator bank,

the defendant looked afraid, worried, and "[n]ot himself." The teammate left.

The defendant took the elevator to the

second floor and rolled the bin into the bathroom at 3:16 P.M. He emerged seven minutes later with the

bin. The defendant left the building

pulling the bin (which seemed heavier than before) through a parking lot. A student, seated at a picnic table, observed

the defendant struggle to push the bin up a steep, rocky incline into the woods

behind the school.

At 4 P.M., the defendant returned to the

school, barefoot and still wearing a white T-shirt and bloodstained jeans. He collected items from his third-floor locker

and entered a boy's bathroom to change into a black long-sleeved shirt, black

shorts, and blue sneakers. After briefly

visiting the second-floor girl's bathroom, he went back into the woods at 4:07

P.M., and about fifteen minutes later, walked through a school parking

lot.

The defendant unexpectedly encountered a

friend outside the school, whom he had met at summertime religious

services. Appearing "a little bit

just down in the dumps" at first, the defendant returned to "his

normal self" as they discussed an upcoming Sunday night church youth group

meeting. The defendant said that he

could not attend because of mounting homework and apologized for not returning

text messages. After this conversation,

the defendant walked through the field house and left the high school at 4:31

P.M.

Next, the defendant walked about two or

three miles to a Danvers shopping center.

There, he used the victim's credit card to purchase fast food and a

movie ticket. At around 5:30 P.M., the

defendant shoplifted a survival knife from a store and walked into the

bordering town of Topsfield.

At 6:30 P.M., the defendant's mother

reported him missing to the Danvers police department. Efforts to locate the defendant ensued,

including posts to social media sites and a reverse 911 call to Danvers

residents. Neal Hovey, a Topsfield

police officer who lived in Danvers, learned of the defendant's disappearance

prior to reporting to work. On duty in

Topsfield, at 12:28 A.M., Officer Hovey responded to a dispatch concerning a

Black man walking along Route 1 northbound.

This section of highway was unsafe for pedestrians, especially at

night. Hovey found the defendant walking

on the side of the road wearing a light blue hooded sweatshirt and black shorts

and carrying a red nylon drawstring backpack.

In response to Hovey's questions, the defendant answered that he was

going "nowhere," had come from "Tennessee," and had no

address. Hovey, joined by fellow

Topsfield police officer Joseph DeBernardo, pat frisked the defendant. The officers found two Massachusetts drivers'

licenses, credit cards, and an insurance card, all in the victim's name -- the

significance of which they did not realize at the time.

The defendant eventually informed the

officers that his name was Philip Chism.

The police officers were "elated" to have found the missing

teenager. Hovey went into "parent

mode" placing the defendant inside a cruiser for warmth. Before being driven to the police station,

the defendant explained that he stole the credit cards from a woman's

automobile parked at a grocery store. At

the police station, Hovey inventoried the red backpack. Although the defendant indicated that the

backpack contained "survival gear," Hovey found, among other items,

the victim's wallet and underwear within the backpack. Inside the wallet, Hovey located a

rectangular box cutter with an exposed one-inch blade stained with a

"reddish-brownish colored substance."

Hovey asked, "[W]hose blood is this?" The defendant replied, "[I]t's the

girl's." Asked where she was, he

further replied, "[B]uried in the woods." He also answered that it was too late to save

her.

In the meantime, the victim's parents were

concerned when she did not arrive home from work. Alerted by the victim's parents, her friends

and colleagues searched the school building and grounds. They found her vehicle parked in its usual

space and her purse sandwiched between two boulders in a wooded area along a

dirt path. An expanded search team,

consisting of State and local law enforcement agencies, discovered numerous

pieces of evidence in the woods, including the bloodstained white gloves, the

victim's pants, the recycling bin toppled over on its side, the defendant's

school identification, and a folded note reading, "I hate you

all." At 3 A.M., a crime scene

technician walking down a dirt path through a field near the high school's

parking lot observed a human toe with pink nail polish protruding from some

leaves by the path.

The victim was positioned on her back

covered with leaves and sticks. She was

unclothed from the waist down, with her legs spread and bent. Her shirt was pushed up, and bra pulled down,

exposing her breasts. A tree branch had

been inserted into her vagina, causing a one-inch perimortem laceration.[5] An autopsy revealed petechial hemorrhaging

around her face, eyes, and mouth indicative of asphyxiation. She suffered at least sixteen sharp force

injuries to her neck that severed major blood vessels, some inflicted with enough

force to penetrate her vertebrae.

Forensic scientists recovered two sperm

cells from an internal vaginal swab. A

Y-chromosome short tandem repeat deoxyribonucleic acid (DNA) test of these

cells generated a partial match to the defendant's DNA profile. The frequency of occurrence of the DNA

profile generated from the vaginal swab was one in 521 of the African-American

population; one in 1,114 of the Asian population; one in 167 of the Caucasian

population; and one in 455 of the Hispanic population.

b.

The defendant's case. The

defendant asserted a defense of lack of criminal responsibility. In support, he called several witnesses, including

family members, a soccer coach, friends, high school classmates, and three

experts.

According to family members and

corroborated by psychiatric records, the defendant's maternal grandmother had

suffered a "nervous breakdown" and was hospitalized for

"psychiatric problems." Likewise,

the defendant's aunt had been diagnosed with mental illness requiring

psychiatric hospitalization.

Relatives and family friends described the

struggles of the defendant's mother in raising the defendant and his two

siblings as a single parent. The family

moved from Tennessee to Florida and back to Tennessee. She attempted to provide the defendant with a

structured environment in a sometimes chaotic household. The defendant, in his preteen years, was

moody and reserved, but still respectful and well behaved. A Tennessee middle school soccer coach singled

the defendant out as a hardworking, respectful, and unselfish teammate. He described the defendant as a "yes,

sir, no, sir" type of player.

In Clarksville, Tennessee, the defendant

developed a close brotherly bond with a friend.

"[C]raving normal[cy]," the defendant spent most weekends with

his friend's family. The two would

skateboard and play videogames and sports together. Additionally, around this time, the defendant

developed an obsession with anime[6] television shows and books. The defendant, according to his friend's

mother, was "polite" and "well-behaved." The only exception, she noted, was the

defendant's disrespectful attitude toward his mother. Wishing to be near family in Massachusetts,

the defendant's mother moved to Danvers in 2013, leaving her other children in

the care of relatives. Although the

defendant displayed no outward signs of anxiety, the move away from his best

friend, his best friend's family, and other sources of support in Clarksville

was, according to defense experts, disruptive.

The defendant's high school classmates

noticed behavioral changes in the days or week preceding the crime. The defendant ignored other students, seemed

preoccupied, and became withdrawn, solitary, and quiet. A soccer teammate recounted that, around the

middle of October, the defendant had scored a goal and uncharacteristically did

not celebrate the accomplishment. When

the coach suggested that the defendant praise his teammate for the assist, the

defendant "just turned away and didn't really say anything," with a

blank expression on his face.

Three criminal responsibility expert

witnesses testified for the defense:

Drs. Anthony Jackson, Richard G. Dudley, Jr., and Yael Dvir. The first witness, Dr. Jackson, was the

medical director for the adolescent continuing care units at the Worcester

Recovery Center and Hospital. Relying on

near-daily midtrial observations of the defendant, he concluded that the

defendant suffered from major depression and a "brief transient psychotic

episode." The psychotic episode, he

opined, involved disorganized behavior, language, and thoughts, impacting the

defendant's ability to function. Jackson

noted that the defendant showed marked improvement when administered Risperdal,

a powerful antipsychotic drug. He did,

however, acknowledge on cross-examination that the stress of the trial may have

triggered this psychotic event.

Dr. Dudley, a psychiatrist, was the

defendant's main expert witness. He

interviewed the defendant seven times from March 2015 to December 2015. In these sessions, which lasted from two to

three hours, Dudley noted that the defendant had a flat affect, mumbled to

himself, failed to respond to questions or pay attention, and exhibited

disorganized thoughts and auditory hallucinations. Dudley also reviewed the high school's

videotape footage, police reports, and the defendant's family history of mental

illness, and conducted collateral interviews with the defendant's family

members and classmates. Based on this

information, he diagnosed the defendant as suffering from a psychotic disorder

not otherwise specified, as defined in the Diagnostic and Statistical Manual of

Mental Disorders (4th ed. 1994) (DSM-IV) issued by the American Psychiatric

Association (APA). This diagnosis is

used when a person has enough symptoms to meet the broad category of psychotic

disorders but there is insufficient information to diagnose a more specific

disorder. Dudley was unsure whether the

disorder would go on to "look like" "schizophrenia early

onset" or more like "trauma-induced psychosis." He therefore preferred the DSM-IV diagnosis,

rather than the APA's comparable Diagnostic and Statistical Manual of Mental

Disorders (5th ed. 2013) (DSM-V) diagnosis of unspecified schizophrenia

spectrum and other psychotic disorders.

Dudley opined to a reasonable degree of

medical certainty that, at the time of the incident, the defendant was

suffering from a psychotic disorder, acted in response to command

hallucinations, and was in the throes of a psychotic episode. As a result of this mental disease or defect,

the defendant lacked the substantial capacity to conform his conduct to the

requirements of the law. Dudley

explained that the defendant experienced intense and "impossible . . . to

ignore" command auditory hallucinations that made the defendant feel

"humiliated [and] degraded," "upset and angry," and

"depressed and withdrawn."

Dudley also testified that the defendant had a delusional belief that he

"wasn't a human being," but rather a "kind of nonhuman with

nonhuman powers."

Dudley explained that the defendant's

conduct, as displayed on the videotaped footage, demonstrated disorganized

thinking characteristic of an individual experiencing a psychotic episode. For example, the defendant "walk[ed]

around the halls of the high school covered with blood," in view of

surveillance cameras, rather than fleeing as soon as possible. The defendant's posing of the body and penetration

of the victim's vagina with a tree branch, Dudley opined, was

"bizarre" behavior consistent with this diagnosis.

Dr. Dvir, a psychiatrist, testified as a

teaching expert witness on the topic of psychosis in children and

adolescents. As such, she never had met

the defendant and offered no opinion on his criminal responsibility. She informed the jury that schizophrenia is a

biologically based "chronic brain illness" characterized by periods

of acute psychosis, and that the usual age of onset is later in adolescence,

toward the mid-twenties and thirties, but early onset occurs between the ages

of thirteen and eighteen. She opined

that adolescents who suffer from schizophrenia but have a higher intellectual

ability can better function between psychotic episodes as compared to

"somebody who starts already having some deficits." Dvir opined further that an adolescent can

experience "quiet" hallucinations and delusions as "[l]ead-up

symptoms" that can be easily missed by adults for a long time, before a

significant life transition acts as a stressor that "push[es] [the

adolescent] over the edge."

c.

The Commonwealth's rebuttal.

Three expert witnesses testified in rebuttal: Drs. Kelly Casey, Nancy Hebben, and Robert

Kinscherff. A month before trial, Dr.

Casey, a forensic psychologist, administered a Rorschach inkblot test, a

"performance-based measure of personality and emotional

functioning." The defendant,

according to Casey, did not exhibit disorganized thoughts, psychosis, or delusions. She testified that although the defendant had

a "fantasy life" and his "reality testing" was

"impaired," he understood the difference between fantasy and reality,

and "didn't show any signs of getting lost in a fantasy world."

Dr. Hebben, a neuropsychologist hired by

Dr. Kinscherff, conducted a neuropsychological evaluation of the defendant for

cognitive defects and malingering.

Malingering, she explained, ranges from "pure malingering"

(i.e., feigned mental illness) to "partial malingering" (in which the

individual exaggerates symptoms of actual mental illness). Hebben opined that, overall, the defendant's

test results were "highly suggestive of a malingered mental

illness." She was, however, unable

to rule out the possibility that the defendant suffered from "some kind of

psychopathology" but just exaggerated his symptoms.

Kinscherff, a forensic psychologist,

interviewed the defendant for a total of about thirteen hours between July 2015

and October 2015. It was his opinion

that the defendant was "not suffering from a mental disease or

defect" on October 22, 2013, and that the defendant may have exhibited

symptoms of distress or emotional disturbance, but they did not substantially

impair his ability to conform his conduct to the requirements of the law. Significant to his opinion were Casey's test

results showing no indication of a psychotic process, and Hebben's results

showing likely malingering and no evidence of a psychotic disorder. In contrast to Dudley's testimony, he did not

observe the defendant exhibit disorganized thoughts or an impaired ability to

communicate.

The prosecutor, in detail, walked

Kinscherff through videotaped surveillance footage, and Kinscherff pointed out

evidence of the defendant's planning (such as bringing gloves and a box cutter)

and efforts to avoid detection.

Kinscherff testified that the amount of "overkill," the taking

of the victim's underwear as a souvenir, and the degrading way the defendant

posed her body were evidence of "emotional arousal" and the

defendant's effort to assert dominance and control over the victim. These are features of "sexual

homicides" not involving mental illness.

2.

Discussion. In this direct

appeal, the defendant presents eleven claims and also asks this court to vacate

his conviction of murder in the first degree under G. L. c. 278,

§ 33E. He contends that (1) the

judge abused his discretion in excluding expert testimony that abnormalities in

the defendant's sMRI brain scans were consistent with mental illness; (2) the

judge improperly precluded Dudley from testifying on direct examination to

hearsay statements made by the defendant; (3) the Commonwealth improperly

cross-examined defense experts on irrelevant and prejudicial topics; (4) the

judge erred in forcing the defense to disclose raw psychological testing data

generated by a nontestifying expert witness to the Commonwealth as reciprocal

discovery; (5) Kinscherff should have been precluded from testifying after

reviewing the defendant's suppressed videotaped confession; (6) the judge erred

in failing to provide the jury with the defendant's requested instruction on

adolescent brain development; (7) the Commonwealth did not introduce sufficient

evidence to establish that the defendant raped and robbed the victim prior to

her death; (8) the judge improperly applied the doctrine of inevitable

discovery in denying a motion to suppress items seized from the defendant in

Topsfield; (9) the prosecutor's remarks and actions exceeded the bounds of

proper closing argument; (10) the judge abused his discretion in denying a

motion for a change of venue due to pretrial publicity; and (11) the imposition

of a forty year sentence on the aggravated rape and armed robbery charges was

violative of proportionality requirements guaranteed by art. 26. We discuss each issue in turn.

a.

The exclusion of the defendant's sMRI brain scan evidence. i. The

expert disclosures and the evidentiary hearing.

On July 13, 2015, a few months before trial, the defense noticed its

intent to offer Dudley's expert testimony concerning the defendant's mental

state at the time of the alleged offense.

On October 8, the second day of trial, the defense provided the

Commonwealth with a report authored by Ruben Gur, Ph.D., the director of the

Brain Behavior Laboratory and the Center for Neuroimaging in Psychiatry at the

University of Pennsylvania's Perelman School of Medicine. Defense counsel retained Gur to conduct a

"neurobehavioral assessment" of the defendant by volumetric analysis

of sMRI brain scans. The results of the

defendant's brain scans were compared with those of 190 healthy adults. In sum, Gur concluded, "Magnetic

resonance imaging results of [the defendant's] brain show volume abnormalities

indicating brain damage. The location

and high degree of asymmetry of volumetric values is consistent with traumatic

brain injury. These abnormalities are in

regions that are very important for regulating emotions and

behavior." He also opined that

"[t]he etiology of the abnormalities needs to be established by clinical

correlation but they are consistent with major psychiatric disorders such as

schizophrenia or traumatic brain injury."

The defendant's brain scans, which were

performed at a Boston hospital in September 2015 (two years after the crimes),

were "examined quantitatively" by Dr. Theodore Satterthwaite. On October 21, the defense added

Satterthwaite to its witness list and provided notice of the subject matter of

his expert opinion.

On November 18, 2015, Gur issued an

addendum report comparing the defendant's brain scans to a cohort of fifteen

through seventeen year olds. Gur

explained that "since [the defendant] is still an adolescent, analysis was

performed to make a more valid comparison between [the defendant] and

[sixty-one] healthy adolescents."

The results of this comparison were consistent with the prior

examination, with "abnormalities in more regions" of the brain. Regarding the etiology of the abnormalities,

Gur restated that while clinical correlation is required, "they are consistent

with major psychiatric disorders such as schizophrenia, or traumatic brain

injury, or a combination."

The Commonwealth, on November 30, filed a

motion to exclude the testimony of Gur and Satterthwaite as failing to meet

Daubert-Lanigan reliability standards, or, in the alternative, as being unduly

prejudicial. See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 585-595 (1993); Commonwealth v. Lanigan, 419 Mass.

15, 24-26 (1994); Mass. G. Evid. § 403 (2024). The defense, in turn, moved for a

Daubert-Lanigan hearing to admit Gur and Satterthwaite's testimony that the

sMRI brain scans showed volumetric reductions in regions of the brain

consistent with schizophrenia, and that these abnormities were "likely

present at age fourteen."

On December 3, the judge conducted a voir

dire hearing at which Gur and Satterthwaite testified. Gur described the methods utilized to measure

the volume of the defendant's brain structures with sMRI technology. He testified that sMRI brain scans are commonly

used in research to link brain volume to behavior and "[are] in widespread

use to detect various conditions."

The values for the defendant's brain scans were then compared to

sixty-one healthy adolescents. Gur

opined that the defendant's brain, as compared to the control group, showed

volumetric abnormalities in particular regions of the brain consistent with

schizophrenia. The correlation between

volumetric abnormalities in certain regions in the brain and schizophrenia,

according to Gur, is generally accepted in the scientific community as

referenced in the DSM-V.[7]

On cross-examination, Gur stated that he

was unaware whether the adolescents in the control group were followed and

reevaluated to determine whether any participants were later diagnosed with

mental illness. He conceded that

schizophrenia is diagnosed by behavior, not through "radiological[,]

laboratory[,] or psychometric test[ing]."

Gur explained: "[I]f you do

have [magnetic resonance imaging], then that will help you confirm your

diagnosis. But right now the diagnosis

is based entirely on behaviors, which is really what will be changing as we

speak."

Next, Satterthwaite testified to the

common use of volumetric analysis as a research tool to study brain development,

normal brain aging, and "neuropsychiatric disorders such as schizophrenia

and bipolar disorder." It is not

used, however, in clinical practice. He

agreed with Gur's assessment that the pattern of volume loss in particular

regions of the defendant's brain was "globally consistent with what we

often see in schizophrenia." Unlike

Gur, Satterthwaite did not testify that the sMRI scans could be used to confirm

a diagnosis. He also stated that the

brain undergoes "a lot of volumetric changes" throughout the

developmental process.

The sample size of sixty-one adolescents,

Satterthwaite noted, was "actually quite large" as compared to those

typically used in research studies and sufficient to compare the defendant's

brain to the "normal range" of the control group. At the same time, he expressed a concern that

"the number of scans here limits our statistical power to detect

abnormality." It was possible to

combine databases, but that was not done here.

Following the hearing, the defendant proffered

the testimony of Satterthwaite, not Gur.

Defense counsel further clarified that she did not intend to use chalks

or introduce "fancy pictures" (referring to three-dimensional brain

scan images reproduced in Gur's report).

ii.

The ruling. At the close of the

voir dire hearing, the judge dictated his findings and rulings into the record,

announcing that he would not permit Satterthwaite to testify as an expert

witness. He first reasoned that

"the MRI of the defendant's brain in 2015 [was] of extremely limited

probative value as it relate[d] to the defendant's mental state in October of

2013." Second, he explained that

Satterthwaite's testimony did not satisfy gatekeeper reliability, where members

of the control group were not the same age as the defendant at the time of the

incident, and where they were not followed and reevaluated "to see whether

they ever developed brain disorders."

Third, "[t]he inference the jury would be asked to draw would be

that since the volumetric values of the defendant's brain are consistent with

somebody with schizophrenia, . . . the defendant has

schizophrenia," which was an impermissible inference because that

diagnosis is "based on behavioral observations."

The judge also excluded the expert testimony

on the ground that the limited probative value of the defendant's mental state

in 2015, as demonstrated through sMRI brain scans, was substantially outweighed

by the danger of unfair prejudice. See

Mass. G. Evid. § 403.

iii.

Renewed motion to admit brain scan evidence. When the trial resumed, the prosecutor raised

the possibility of the defendant's malingering in her cross-examination of

Dudley. Dudley admitted that he relied

on the defendant's self-reported symptoms and did not order psychological

testing. Psychological testing, he later

explained, was inappropriate for an adolescent suffering from psychotic or

trauma-related symptoms. Dudley further

answered that he did order a different type of testing (implicitly referring to

the sMRI brain scans). This line of

inquiry, the defendant contended, opened the door to admission of the sMRI

brain scan test results.

The judge allowed the defense to ask

Dudley whether he, in fact, requested brain scan testing and considered the

results in forming his opinion.

"What the testing [was]," the judge ruled, "is not

pertinent." Dudley then

testified: "I requested a form of

testing where there are scans of the brain to look for whether there are actual

changes in the brain that are consistent with the diagnosis of a psychotic

disorder." The test results, which

he received after writing his report, were considered by Dudley in forming his

opinion that the defendant suffered from mental illness at the time of the

incident. Dudley, however, was not

permitted to answer whether the brain scans were consistent with his opinion

that the defendant suffered from a psychotic disorder. In addition, the judge sustained objections

to questions posed to the teaching expert Dvir concerning volumetric differences

in the brains of juveniles and adults diagnosed with schizophrenia and whether

there are "physical manifestations of schizophrenia in the brain."

After the Commonwealth's rebuttal

evidence, the defendant moved to admit the testimony of Gur or Satterthwaite

"to rebut the neuro-psych and psychological testimony that [the defendant]

[was] malingering." The brain

scans, the defendant pointed out, were taken roughly at the same time as

Hebben's testing, and "provide strong evidence" that the defendant

suffered from schizophrenia. He argued

that "this would be evidence that [the defendant], in fact, had

legitimate, severe mental health symptoms," admissible to challenge the

Commonwealth's allegations of feigned mental illness. The judge denied the motion on the grounds

that he did not credit Gur and Satterthwaite's testimony, which "[did] not

come close to satisfying the Frye general acceptance, or the Daubert-Lanigan

factors."

Addressing Gur's testimony, the judge

stated: "Dr. Gur couldn't answer

one question directly[,] [w]ent off on tangents, and his overall demeanor left

me in the position that I have to take under [Mass. G. Evid. § 104(a)],

determining preliminary questions of fact, that he –- I believe that what he

was an advocate for his area of interest and . . . an advocate for

his university. . . . So the

problem with Dr. Gur is I don't believe him.

I just don't believe him."

Satterthwaite's testimony, the judge

concluded, failed to satisfy gatekeeper reliability for the following

reasons. First, there was no evidence

that the volumetric abnormalities bore on the question whether the defendant

was malingering, and the uncontroverted testimony was that someone may both

suffer from a mental illness and malinger.

Second, the judge reiterated his previously stated reasons from the

individual voir dire hearing as to why the proffered expert testimony failed

gatekeeper reliability, while emphasizing that "the DSM‑[V] specifically

cautions that diagnosis of schizophrenia cannot be made on the basis of

laboratory testing." In addition,

the judge once again determined that the probative value of the proffered

expert testimony was substantially outweighed by the risk of unfair prejudice. See Mass. G. Evid. § 403.

iv.

Standard of review. "The

decision to exclude expert testimony rests in the broad discretion of the judge

and will not be disturbed unless the exercise of that discretion constitutes an

abuse of discretion or other error of law." Commonwealth v. Ridley, 491 Mass. 321 , 326

(2023), quoting Commonwealth v. Fernandes, 487 Mass. 770 , 778 (2021), cert.

denied, 142 S. Ct. 831 (2022). See

Canavan's Case, 432 Mass. 304, 310-311 (2000).

A judge abuses his or her discretion if "the judge made a clear

error of judgment in weighing the factors relevant to the decision, such that

the decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L.

v. Commonwealth, 470 Mass. 169 , 185 n.27 (2014).

In addition to the judge's gatekeeper role

under Daubert-Lanigan, a judge assessing the admissibility of expert testimony

also has a "general duty to exclude evidence that is irrelevant or for

which the probative value is substantially outweighed by the risk of unfair

prejudice, confusion, or waste of time."

Commonwealth v. Hoose, 467 Mass. 395, 417 (2013). See Commonwealth v. Bonds, 445 Mass. 821, 831

(2006) ("we rely on a trial judge to exercise discretion in admitting only

relevant evidence whose probative value is not substantially outweighed by its

prejudicial or cumulative nature"); Commonwealth v. Patterson, 445 Mass.

626 , 639 n.10 (2005) (expert testimony must be relevant as well as satisfy

gatekeeper reliability). "We review

a judge's decision whether the probative value of evidence is substantially

outweighed by the danger of unfair prejudice under the abuse of discretion

standard." Commonwealth v. Yat Fung

Ng, 491 Mass. 247 , 264 (2023). Under

this standard, we do not disturb the judge's ruling "absent a clear error

of judgment in weighing the relevant factors" (citation omitted). Id.

v.

Application. The parties

vigorously dispute the judge's Daubert-Lanigan ruling. The defendant argues that he was prejudiced

by the judge's exclusion of expert testimony necessary to support Dudley's

opinion that the defendant was in the throes of a psychotic episode at the time

of the murder. The judge's dismissal of

sMRI-based volumetric analysis as a mere "research tool" that is

"not used in clinical treatment," he argues, was a misapplication of

the Daubert-Lanigan standard. The

Commonwealth, on the other hand, emphasizes that the issue before the judge was

"not the validity in general of sMRI as a tool to measure brain volume or the

fact that research has linked volumetric reductions to

schizophrenia." Rather, it was the

reliability of sMRI imaging of the defendant's sixteen year old brain to

support an inference that he suffered from schizophrenia at the time of the

incident, even though "the defendant was not (and has never been)

diagnosed with schizophrenia." We

need not reach the correctness of the judge's Daubert-Lanigan determination,

however, because the judge relied on an adequate alternative ground to exclude

the sMRI brain scan testimony.

The judge acted within his discretion in

ruling that the probative value of the proffered expert testimony was

substantially outweighed by unfair prejudice.

See Hoose, 467 Mass. at 417 ; Mass. G. Evid. § 403. On this record, the judge was entitled to

determine that the probative value of the sMRI brain scan results was

diminished by questions raised about the adolescent cohort comparison. He observed, "Nobody in the study was of

the same age of the defendant at the time of the incident." This was significant because, as Satterthwaite

testified, the brain undergoes "a lot of volumetric changes"

throughout the developmental process.

Adding to the judge's concerns about the cohort, he noted that

"there's no indication of whether the sixty-one youths . . .

were followed to see whether they ever developed brain disorders." The judge also considered the undisputed

testimony that sMRI brain scans may not be used to diagnose schizophrenia

absent clinical findings. Despite this

undisputed testimony, Satterthwaite would have essentially invited the jury to

speculate that "since the volumetric values of the defendant's brain are

consistent with somebody with schizophrenia, . . . the defendant has

schizophrenia."

Additionally, in assessing the probative

value of Satterthwaite's proffered testimony, the judge relied on a 2014 Emory

University multidisciplinary consensus conference report which, he stated,

raised "serious cautions" about the use of neuroimaging data in

criminal cases. The report states:

"The

practice of performing imaging studies on a defendant in order to shed light on

brain function or state of mind at the time of a prior criminal act is

problematic. The retrospective nature of

this evaluation makes it particularly difficult to attribute causality to

specific imaging findings. Current brain

imaging methods cannot readily determine whether a defendant knew right from

wrong or maintained criminal intent or mens rea at the time of the criminal

act. Also, there is an inherent

difficulty in translating mechanistic (neural) system data into human

behavior."

Meltzer et al.,

Guidelines for the Ethical Use of Neuroimages in Medical Testimony: Report of a Multidisciplinary Consensus

Conference, 35 Am. J. Neuroradiology 632, 635 (2014).

The judge was also warranted in

determining that the expert testimony would be unduly prejudicial to the

government. The evidence invited the

jury to impermissibly speculate that the defendant had, in fact, been diagnosed

with schizophrenia based on objective sMRI studies. The prejudice could not be, as the judge

determined, "mitigated through cross-examination."

We also discern no abuse of discretion in

the judge's exclusion of this evidence on surrebuttal to refute evidence of

malingering. The judge credited testimony

from Kinscherff that raised significant questions about the probative value of

the sMRI brain scan results.

Specifically, Kinscherff testified, "given the existing state of

science," a diagnosis of schizophrenia "cannot be made on the basis

of laboratory testing."

Additionally, although Kinscherff acknowledged that brain volume

reductions are associated with schizophrenia, he explained that "they are

[also] associated with normal aging . . . [and] a lot of different

conditions. So . . . it is not

pathognomonic [(distinctly characteristic of a disease)] or specific to

schizophrenia." Finally, it was

undisputed that a person could suffer from a mental illness (as the defendant

argued the sMRI brain scan demonstrated), and still exaggerate symptoms of

mental illness.

In sum, we discern no abuse of discretion

in the judge's decision to exclude the expert testimony because its probative

value was substantially outweighed by the danger of unfair prejudice.

b.

The limitations on the defendant's direct examination of his

expert. The defendant next contends that

he was unable to present a complete criminal responsibility defense because the

judge precluded Dudley from testifying on direct examination to statements made

by the defendant during his forensic interviews with Dudley. While acknowledging the general prohibition

against the introduction of such evidence, see Department of Youth Servs. v. A

Juvenile, 398 Mass. 516, 532 (1986), he argues that the statements were

admissible under two evidentiary hearsay exceptions, see Mass. G. Evid.

§ 803(3), (4), or the narrow constitutionally based exception for

statements critical to the defense, see Commonwealth v. Drayton, 473 Mass. 23,

25 (2015), S.C., 479 Mass. 479 (2018).

Because the defendant objected based on the foregoing evidentiary rules,

we review to determine whether the exclusion of the evidence was error and, if

so, whether it was prejudicial. See Yat

Fung Ng, 491 Mass. at 263 n.17.

Dudley interviewed the defendant seven times

from March to December 2015. The details

of these interviews, the defendant claims, reveal the true nature of his

delusionary and hallucinatory world. In

particular, the defendant made statements during these interviews that involved

his obsession with anime and his belief that he was "a Manga character or

a Ninja."[8] The defendant also

told Dudley that he was hearing voices.

The voices said negative things about him, directed him to do things,

made him feel helpless because he could not control them, and pulled him

"deeper and deeper in."

The judge denied the defendant's motions

in limine to admit this evidence on direct examination. He explained, citing the then-recently

decided case of Commonwealth v. Chappell, 473 Mass. 191, 204-205 (2015), that

this court's precedent is well settled:

an expert witness may rely on facts or data not in evidence in

formulating an opinion, but the expert cannot testify to the substance or

contents of that information on direct examination. The judge added that this case law does not

preclude an expert witness from stating an opinion and the bases for that

opinion absent the underlying facts and data.

The defendant objected, arguing that the ruling had "hamstrung"

his case to the point that the criminal responsibility defense had been

"eviscerated."

An expert witness may base an opinion on

"(1) facts personally observed; (2) evidence already in the records or

which the parties represent will be admitted during the course of the

proceedings, assumed to be true in questions put to the expert witnesses; and

(3) facts or data not in evidence if the facts or data are independently

admissible and are a permissible basis for an expert to consider in formulating

an opinion" (quotation and citation omitted). Commonwealth v. Markvart, 437 Mass. 331, 337

(2002). See Mass. G. Evid.

§ 703. As the trial judge here

correctly noted, while an expert may provide an opinion based on facts or data

not in evidence, "the expert may not testify to the substance or contents

of that information on direct examination." Department of Youth Servs., 398 Mass. at

531 . See Commonwealth v. Piantedosi, 478

Mass. 536 , 543 (2017); Chappell, 473 Mass. at 203 ; Mass. G. Evid.

§ 703. The rationale for this

limitation is to prevent the proponent of the expert testimony from

"import[ing] inadmissible hearsay into the trial." Commonwealth v. Goddard, 476 Mass. 443, 448

(2017). That is, "[d]isallowing

direct testimony to the hearsay basis of an expert opinion helps prevent the

offering party from slipping out-of-court statements not properly in evidence

in through the 'back door.'"

Commonwealth v. Greineder, 464 Mass. 580, 583 , cert. denied, 571 U.S.

865 (2013).

Notwithstanding the limitations on

direction examination, the opposing party may, as a matter of trial strategy,

elicit details of the facts or data underlying the expert's opinion on

cross-examination. Markvart, 437 Mass.

at 338 . If the door is opened by the

opposing party, on redirect examination, the proponent of the evidence then may

introduce additional details surrounding the source of the expert's

opinion. Chappell, 473 Mass. at

203–204. See Mass. G. Evid. § 705.

Here,

the defendant maintains that the details of his forensic interviews were

admissible on direct examination under three exceptions to the hearsay

rule: (1) statements for purpose of

medical diagnosis or treatment, see Mass. G. Evid. § 803(4); (2)

statements of then-existing mental, emotional, or physical condition, see Mass.

G. Evid. § 803(3); (3) or the narrow, constitutionally based exception for

statements that are critical to the defense.

See Drayton, 473 Mass. at 33-35 .

The

defendant's reliance on the exception for statements made for purposes of

diagnosis or treatment is foreclosed by our decision in Commonwealth v.

Rodriguez, 484 Mass. 677 (2020). In that

case, we rejected the defendant's argument that statements made to an expert

psychiatrist in a forensic interview were admissible, without limitation, under

Mass. G. Evid. § 803(4). Rodriguez,

supra at 684. Notwithstanding an expert

witness's reliance on such statements in reaching a mental illness diagnosis,

this hearsay exception "does not apply where a defendant made his or her

statements in the course of a court-ordered forensic interview or a forensic

interview to determine criminal responsibility." Id. We

explained that "[t]he reason for these forensic interviews is to assess

the defendant for a legal purpose: to

determine whether the defendant meets the legal definition of a 'mental disease

or mental defect' and therefore cannot be held criminally responsible for the

crime charged. . . .

Therefore, the statements made during the course of these assessments do

not carry the same inherent reliability as statements made to a professional

for purposes of medical treatment or diagnosis." Id.

Accordingly, the judge properly rejected the defendant's claim that the

statements made to Dudley in the forensic interviews were admissible under

Mass. G. Evid. § 803(4).

Next,

we address the defendant's argument that certain details of his forensic

interview were admissible on direct examination as statements of a

then-existing mental condition. See

Mass. G. Evid. § 803(3). Notably,

this exception does not cover out-of-court statements describing past symptoms

of mental illness. See Commonwealth v.

Schoener, 491 Mass. 706 , 728 (2023); Yat Fung Ng, 491 Mass. at 260;

Commonwealth v. Whitman, 453 Mass. 331 , 342 & n.10 (2009).

The

defense proffered Dudley's testimony that the defendant stated that "he

thought he was a [manga] character" and "that he really is a

Ninja." It is unclear whether these

statements described the defendant's past or current mental states, or

both. To the extent that the defendant

sought to establish his past mental condition (i.e., that he thought he was a

fictional character), the statement was not admissible as a statement

of then-existing mental condition.

See Whitman, 453 Mass. at 342 .

In

any event, whether the "Ninja" statement refers to the defendant's

past or present mental condition, there is no dispute that another proffered

statement referred to the defendant's mental condition at the time of the

expert's evaluation. The defendant told

Dudley that he was hearing voices during the forensic evaluation. Dudley reported, "[H]e was hearing a

voice (other than this psychiatrist's voice) . . . when this

psychiatrist questioned him about the fact that he often appeared to be distracted

and mumbling to himself."

The

judge excluded the proffered statements as "not . . . within the

contemplation of [the] then-existing mental or physical condition

exception." The exception, he

reasoned, does not apply to the "artificial environment" of an

examination for criminal responsibility.[9]

He further reasoned that a contrary ruling "would eviscerate the

whole principle as it relates to the way expert testimony is addressed in the

Commonwealth." See 2 McCormick on

Evidence § 274 (R.B. Mosteller ed., 8th ed. 2020) (exception "rests

upon the [statements'] spontaneity and resulting probable sincerity"); 6

Wigmore, Evidence § 1714 (Chadbourn rev. ed. 1976) ("statements

. . . where there is ample opportunity for deliberate

misrepresentation . . . are comparatively inferior to statements made

at times when circumstances lessened the possible inducement to

misrepresentation").

Because

the defendant was not prejudiced by the ruling, there is no need to decide

whether the "artificial environment" of a forensic evaluation

diminishes the reliability of a statement of then-existing mental

condition. Dudley testified on direct

examination that the defendant exhibited "auditory hallucinations"

that "ebbed and flowed during the interviews" and delusional ideas

that he "was kind of nonhuman with nonhuman powers." Dudley also described the defendant's

auditory hallucinations on redirect examination: "[W]hat I was describing during my

interviews with him is that I would ask him a question, . . . the

voice would tell him to respond or not respond, and he would be responding to

the voice and then not responding to me."[10] In light of the statements concerning the

defendant's mental state that were admitted, we are sure that any error in the

exclusion of any statements on direct examination "did not influence the

jury, or had but very slight effect" (citation omitted). Yat Fung Ng, 491 Mass. at 263 n.17.

We

also consider the defendant's claim that all of the details of his statements

to Dudley were admissible under the narrow, constitutionally based exception to

the hearsay rule. See Drayton, 473 Mass.

at 25, 33-35 (recognizing "a narrow, constitutionally based exception to

the hearsay rule, which applies where otherwise inadmissible hearsay is

critical to the defense and bears persuasive guarantees of

trustworthiness"). This exception

applies "only where it is necessary to avoid injustice where

constitutional rights directly affecting the ascertainment of guilt are

implicated or where exclusion of evidence significantly undermines fundamental

elements of a defendant's defense" (quotations, citations, and alterations

omitted). Yat Fung Ng, 491 Mass. at

261. The defendant did not raise this

argument in the trial court; therefore, we review for a substantial likelihood

of a miscarriage of justice. Id. at 261

n.16. We find no error because admission

of the statements on direct examination was not critical to the defense. As stated above, the defendant was able to

introduce evidence of auditory hallucinations and delusional thinking through

his expert witness. Furthermore, the

defendant could have testified to his own then-existing mental state. See Commonwealth v. Dame, 473 Mass. 524 , 533

n.17, cert. denied, 580 U.S. 857 (2016).

Finally,

the defendant argues that his statements were admissible on Dudley's redirect

examination to rebut the claim elicited by the Commonwealth that the defendant

was malingering. However, in excluding

evidence of the defendant's statements, the judge emphasized that his ruling

was confined to Dudley's direct examination, not redirect. He stated, "I'm not ruling, at this

moment, on redirect. . . . I

haven't heard the cross. I haven't even

heard the direct." Thereafter, the

defendant did not ask the judge to decide this evidentiary issue. Therefore, even assuming the Commonwealth

opened the door to allow the defendant to introduce his statements on redirect

examination of Dudley, no error was committed by the judge.

c. The Commonwealth's cross-examination of the

defendant's experts. The defendant

further contends that he is entitled to a new trial because the prosecutor was

permitted to cross-examine defense experts on irrelevant and prejudicial

topics. In particular, he claims that

the judge erred in permitting the prosecutor to inquire about (1) the possibility

that the defendant suffered from antisocial personality disorder (ASPD); (2)

Dudley's testimony in infamous criminal cases; and (3) an article written by

Dudley concerning the strategic use of psychological testing in death penalty

mitigation cases.

We

first consider the defendant's claim that the prosecutor improperly elicited

testimony "insinuating" that the defendant suffered from ASPD. This was prejudicial error, the defendant

argues, because ASPD cannot be diagnosed in someone under the age of

eighteen. He maintains also that the

judge should have permitted Dudley to rebut the suggestion of ASPD on redirect

examination through testimony that the defendant's mental condition improved

while he was medicated on Risperdal.

The

relevant portions of expert witness examination proceeded as follows. Defense expert Jackson testified, on direct

examination, that he prescribed the defendant Risperdal, "an

anti-psychotic medication that's quite efficacious for helping people organize

their thinking." As a result, the

defendant seemed "significantly more present and engaged,"

"calmer and less anxious," and "better able to organize his

thinking and his communication with others." On cross-examination, the prosecutor asked

Jackson whether the defendant exhibited signs of a personality disorder, such

as an absence of empathy or inability to connect with other people. The prosecutor also asked whether ASPD

"would be a disorder for which those things are true." Defense counsel objected on the ground that

the defendant was too young to be diagnosed with ASPD. At sidebar, the judge sustained the objection

and would not take the testimony de bene without further foundation. The prosecutor countered that ASPD is a

potential differential diagnosis and offered to limit her inquiry to the last

question. Defense counsel withdrew her

objection. Jackson then testified that

lack of empathy, connections to others, and remorse are characteristics of

ASPD.

On

redirect examination of Dudley, the defendant sought to admit evidence of

Dudley's late-trial interview of the defendant, which was not timely disclosed

to the prosecutor. The proffered

testimony, according to the defense, was to be limited to "improvements in

[the defendant's] condition . . . due to the [Risperdal], the

antipsychotic medication." The

judge excluded the evidence, determining that its "extremely limited"

probative value was substantially outweighed by the danger of unfair prejudice

caused by delayed disclosure.

We

find no prejudicial error in the judge's rulings regarding the scope of cross-

and redirect examination. See

Commonwealth v. Chicas, 481 Mass. 316, 320 (2019) (judge's discretion to limit

scope of examination); Mass. G. Evid. § 611(a) (court may exercise

reasonable control over mode and order of witness examination). Jackson disagreed with the suggestion that

the defendant suffered from a personality disorder. Rather than litigate the issue whether the

defendant's age precluded such a diagnosis, the defendant withdrew his

objection to a final question concerning characteristics of ASPD. Thereafter, Dudley testified that a

personality disorder cannot "technically" be diagnosed at age

fourteen or fifteen. He nonetheless

"look[ed] for some of the kinds of behavioral difficulties or symptoms

that we see early on in people who tend to develop certain personality

disorders," and found none.

Kinscherff, the Commonwealth's expert, did not diagnose the defendant

with ASPD, and the prosecutor did not mention it in her closing argument.

Likewise,

the judge did not abuse his discretion in excluding Dudley's opinion on the

positive effects of Risperdal, as it was cumulative. Prior to Dudley's redirect examination,

Jackson testified to the efficacy of Risperdal in treating the defendant's

mental condition. Indeed, defense

counsel, seeking to rebut the Commonwealth's claim of malingering, argued to

the jury: "[Jackson] treated those

things [(disorganized thoughts, flat affect, and social withdrawal)] with an

antipsychotic medication, Risperdal.

This was not that long ago. And

what happened? There was a marked change

in [the defendant], not based on [the defendant's] report, but based on Doctor

Jackson's observations . . . ."

The

defendant next argues that the judge erred in permitting cross-examination of

Dudley regarding his role as an expert witness in infamous murder cases, while

prohibiting the defendant from offering evidence that Dudley testified in Hague

genocide cases. We find no abuse of

discretion. See Chicas, 481 Mass. at

320 . On direct examination, Dudley

testified that he mostly appears as a defense witness because "[t]hat's

who calls [him]." The Commonwealth

inquired into Dudley's potential bias.

See Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987) (right to

cross-examine on issue of bias). The

prosecutor asked Dudley about his role as a defense expert in three infamous

criminal cases: (1) the case of Colin

Ferguson, "who shot people on the Long Island Commuter Rail"; (2) the

case of Brian Nichols, "who killed a judge and three other people in

Atlanta"; and (3) the case of "one of the defendants in the Cheshire,

Connecticut[,] home invasion rape and murder of a mother and her two

daughters." The judge provided an

immediate and forceful limiting instruction that this evidence was to be

considered solely as to Dudley's pro-defense bias. See Commonwealth v. Jones, 373 Mass. 423, 426

(1977) (it is normally assumed jury follow judge's instructions).

Dudley,

on redirect examination, informed the jury that he testifies in many criminal

and civil cases "where there's been no publicity." He added, "I've recently done several

Hague Convention cases, which are kind of kept quiet." The judge sustained the prosecutor's

objection to the question, "What are Hague Convention cases?" At sidebar, defense counsel insisted that

Dudley be permitted to define "what the Hague Convention is." Asked for an offer of proof, defense counsel

admitted that she did not know how Dudley would answer this question. The judge invited defense counsel to talk to

Dudley during recess, and "come back to it." The defense declined to revisit the

issue.

Finally,

we find no abuse of discretion in the judge's decision to allow the

Commonwealth to cross-examine Dudley regarding an article he authored on

developing mitigation evidence in capital cases. The Commonwealth asked Dudley about portions

of that article where he cautioned defense counsel against prematurely ordering

psychological testing. Dudley explained

that counsel should gather records, "really try to get to know who this

client is," and select a mental health expert "who's going to be most

helpful . . . given what your client's needs are." When pressed by the prosecutor, Dudley

answered that the wrong psychological testing could undermine the defense's

case. The prosecutor finished this line

of inquiry by highlighting the fact that Dudley was late to order

"psychological" testing in this case.

The

Commonwealth was entitled to ask Dudley about the strategic use of

psychological testing. To the extent

that the inquiry strayed from this purpose, the defendant was not prejudiced by

the cross-examination. Dudley emphasized

that the article was written to set a national standard of practice in capital

cases, which are "very different" from criminal responsibility

cases. Furthermore, Dudley explained

that he ordered sMRI brain scan testing in this case under the belief that this

type of testing would provide "clear[er]" results than psychological

testing, and that he considered the brain scan results in reaching his

diagnosis of psychosis not otherwise specified.

d. The disclosure of raw test data from the

defendant's nontestifying expert consultants.

At trial, on the Commonwealth's motion, the judge ordered the defense to

produce raw data from psychological tests administered by the nontestifying

expert consultants. The defendant

objected to the order, arguing that the rules governing pretrial discovery do

not compel disclosure of raw data from tests that were not requested or

reviewed by the defendant's testifying expert.

We hold, first, that the judge abused his discretion in compelling

disclosure of the raw data in these circumstances. Second, we hold that the judge's abuse of

discretion did not result in prejudicial error.

i. Background.

Pursuant to Mass. R. Crim. P. 14 (b) (2), as appearing in 463

Mass. 1501 (2012), the defendant provided notice of his intent to offer expert

testimony regarding the defendant's mental condition, which would rely, in

part, on his statements.[11] The

Commonwealth then moved for a court-ordered examination of the defendant by its

testifying expert, Kinscherff, and further requested an order that Kinscherff

be provided "any psychiatric, psychological and/or medical records or

testing of the defendant . . . regardless of whether they will be

provided to or relied upon by the defense expert in forming any

opinions." The Commonwealth

similarly moved for a court order requiring the defendant to disclose the

specified raw data to another one of its testifying experts, Hebben, who

intended to assist Kinscherff with his evaluation by conducting her own

psychological testing. The defendant

objected that, "[t]o the extent that the Commonwealth's proposed order

encompasses records other than those provided to the defense experts[,]

. . . it should be denied as outside the scope of discovery expressly

provided for by [rule 14 (b) (2)] as modified by Hanright." See Commonwealth v. Hanright, 465 Mass. 639,

648-649 (2013). The defendant explained

that (1) he had no intention of calling the expert consultants who had

performed the relevant tests and (2) his testifying expert, Dudley, had neither

reviewed nor relied upon the raw data generated by those tests in forming his

opinion.

The

judge allowed the Commonwealth's motions and stated, with respect to the

request for raw data:

"The present

case is dissimilar to the situation contemplated in Commonwealth v.

Sliech-Brodeur, 457 Mass. 300, 321 (2010), where the Commonwealth's expert was

'not entitled to any of [the defense expert's] materials before trial and

before he had prepared his own report . . . .' The court's decision is based on the

'anti-cherry picking' spirit of the . . . same records rule

established in [Hanright, 465 Mass. at 644 & n.4] ('[i]t is only fair that

the Commonwealth have the opportunity to rebut the defendant's mental health

evidence using the same records that should be made available to defendant's

medical expert')."

The defense

thereafter complied with the judge's order, providing the raw data to both

Hebben and Kinscherff. Included in the

raw data were the results of two types of intelligence quotient (IQ)

tests: (1) the Wechsler Intelligence

Scale for Children (WISC), which the defendant completed in March 2014; and (2)

two subtests from the Wechsler Adult Intelligence Scale (WAIS), which the

defendant completed in June 2015.

The

Commonwealth utilized divergent results in the IQ scores to bolster its claims

that the defendant was malingering and not suffering from a mental disease or

defect. In cross-examining Dudley, the

prosecutor pointed out that the defendant's WISC scores ranged from average to

above-average intelligence. Thereafter,

in June 2015, he scored below the first percentile on the WAIS. Dudley acknowledged that intelligence does

not change over the course of a lifetime.

The prosecutor suggested that the results of the subsequent IQ testing were

attributable to malingering. Dudley

testified that he "considered [the IQ test results], and [they] didn't

change [his] opinion."

In

addition, the prosecutor brought out the disparity in IQ test scores through

Hebben. On direct examination, Hebben

testified that she reviewed the raw data after completing her testing and

reached her own independent conclusions.

Her opinion was "based solely on the data that [she] personally

collected." Then, on redirect

examination, she explained that the WISC and WAIS IQ tests are highly

correlated -- and therefore, varying scores "[did] not make any sense at

all," absent a significant brain injury.

The only explanation, she opined, was that "[t]he person was

purposefully feigning that [he was] unable to do now cognitive tests."

ii. Standard of review. "This court upholds discovery rulings

unless the appellant can demonstrate an abuse of discretion that resulted in

prejudicial error" (quotations, citation, and alteration omitted). Commonwealth v. Torres, 479 Mass. 641, 647

(2018). As noted previously, a judge

commits an abuse of discretion where he or she "made a clear error of

judgment in weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L., 470 Mass.

at 185 n.27. With respect to prejudicial

error, the controlling question is whether the appellate court can be

"sure that the error did not influence the jury, or had but very slight

effect" (citation omitted).

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). An error is prejudicial if there is a

"reasonable possibility that [it] might have contributed to the jury's

verdict" (citation omitted).

Commonwealth v. Crayton, 470 Mass. 228, 253 (2015).

iii. Analysis.

There is some disagreement between the parties about what law of

pretrial discovery applies. The

Commonwealth argues that Mass. R. Crim. P.

14 (b) (2) (C) (i) (2016) applies, under which defendants

subject to a rule 14 (b) (2) (B) examination "shall

. . . make available to the examiner . . . [a]ll raw data

from any tests or assessments administered to the defendant by the defendant's

expert or at the request of the defendant's expert." The defendant emphasizes that rule

14 (b) (2) (C) (i) was promulgated one month after trial in

this case. Accordingly, the defendant

frames his argument in terms of rule 14 (b) (2) as it existed when

the motion judge allowed the Commonwealth's motion. Specifically, the defendant points to

Hanright's "same records" rule, "whereby a defendant is to

provide the rule 14 (b) (2) (B) examiner with the same records

provided to or considered by the defense expert." Hanright, 465 Mass. at 648–649.

We

hold that both Hanright and rule 14 (b) (2) (C) (i) point

to the same conclusion: the motion judge

erred in compelling disclosure of raw data from tests that were neither

administered nor requested by the defendant's testifying expert. We will first explain why Hanright's

"same records" rule does not extend to raw data from tests

exclusively administered by nontestifying experts. We will then explain why rule

14 (b) (2) (C) (i) reinforces, and does not disturb, that

holding.

As

a threshold matter, we emphasize that Hanright concerned a defendant's

disclosure obligations with respect to historical treatment records. See Hanright, 465 Mass. at 648 . Indeed, the anti-"cherry picking"

principle, one of our considerations in formulating the "same

records" rule, expressly refers to treatment records: "We are . . . concerned that a

defendant may 'cherry pick' from amongst his or her treatment records

. . . ." Id. Hanright did not concern a defendant's

disclosure obligations with respect to materials contemporaneously generated by

the defense. We were explicit on this

point: "Unlike access to materials

generated contemporaneously by the defense, allowing a rule

14 (b) (2) (B) examiner access to a defendant's treatment

records is part and parcel of a rule 14 (b) (2) (B)

examination. Our conclusion

. . . permits discovery of materials that are available to, as opposed

to generated by, the defense . . . ." Id. at 645 (distinguishing treatment records

from notes and materials generated by defendant's psychiatric expert in

Sliech-Brodeur, 457 Mass. 300 ).

Psychological

tests administered by a consulting expert in the context of exploring potential

defenses based on mental condition exemplify "materials generated

contemporaneously by the defense."

Furthermore, "materials generated contemporaneously by the defense"

are different from historical treatment records in several relevant

respects. For one, historical treatment

records carry a presumption of reliability that does not necessarily apply to

materials generated for purposes of the defense. See, e.g., Commonwealth v. Wall, 469 Mass.

652, 667 (2014) (hospital records are distinctively reliable, "because the

entries relating to treatment and medical history are routinely made by those

responsible for making accurate entries and are relied on in the course of

treating patients" [citation omitted]).

More broadly, psychological data generated by the defense implicates

concerns about self-incrimination, attorney-client privilege, and the work

product doctrine that are not implicated by treatment records generated outside

the context of litigation. See, e.g.,

Blaisdell v. Commonwealth, 372 Mass. 753, 757-759 (1977) (discussing

burdens of court-ordered psychiatric examinations on privilege against

self-incrimination). Because of these

relevant differences, Hanright's "same records" rule for treatment

records does not apply to materials contemporaneously generated by the defense.

More

fundamentally, even if Hanright's "same records" rule were extended

to contemporaneously generated defense materials, it could not reasonably be

extended to materials generated by nontestifying experts. When this court instituted the requirement

for a defendant to "provide the rule 14 (b) (2) (B)

examiner with the same records provided to or considered by the defense expert,"

it was plain that our use of the term "defense expert" referred to

the defense's testifying expert.

Hanright, 465 Mass. at 649 . This

reflects the motivation behind the "same records" rule -- to ensure,

out of fundamental fairness, that both the Commonwealth's and the defense's

experts have access to the same materials in forming the requisite opinions and

writing the requisite reports. And only

experts expected to testify need do so.

"It is only fair that the Commonwealth have the opportunity to

rebut the defendant's mental health evidence using the same resources that

should be made available to [the] defendant's medical expert.

. . . A system in which only

the defendant's expert may use the defendant's medical and psychiatric records

to form an opinion regarding the defendant's mental health would have a

distorting effect on the fact finder's role, and would undermine society's

conduct of a fair inquiry" (quotations and citations omitted). Id. at 644-645 . See id. at 643-644 ("Because review of

treatment records is necessary, both to conduct a meaningful examination and to

produce the requisite report, discovery of a defendant's treatment records is

permitted pursuant to rule 14 [b] [2] [B]").

Subsequent

changes to rule 14 (b) (2) confirm our conclusion that only

psychological data generated by testifying defense experts is subject to

mandatory disclosure. Specifically, in

2015, the standing advisory committee on the rules of criminal procedure

responded to our request in Hanright, 465 Mass. at 648 , to "consider the

scope of requisite disclosure and to propose a mechanism whereby both the

defense expert and the rule 14 (b) (2) (B) examiner have an

equal opportunity to access the records they deem necessary to conduct a

psychiatric evaluation, while preserving a defendant's ability to object to

such disclosure." With respect to

raw data in particular, the result was Mass. R. Crim. P.

14 (b) (2) (C) (i), providing in relevant part that a

defendant subject to a rule 14 (b) examination shall "make available

to the examiner . . . [a]ll raw data from any tests or assessments

administered to the defendant by the defendant's expert or at the request of

the defendant's expert."

Although

the text of rule 14 (b) (2) (C) (i) does not expressly

identify "the defendant's expert" with "the defendant's testifying

expert," both the context and purpose of rule

14 (b) (2) (C) make clear that this is the only reasonable

interpretation. As a textual matter, the

multiple references to defense "experts" in rule 14 (b) (2)

concern experts who are expected to testify.

See, e.g., Mass. R. Crim. P. 14 (b) (2) (A) (notice

of intent to raise mental condition defense must state "whether the

defendant intends to offer testimony of expert witnesses" and "the

names and addresses of expert witnesses whom the defendant expects to

call"); Mass. R. Crim. P. 14 (b) (2) (B) ("The

reports of both parties' experts must include a written summary of the expert's

expected testimony . . .").

Indeed, at no point does rule 14 (b) (2) reference a defense

"expert" who is not expected to testify. Moreover, the purpose of the raw data

disclosure requirement articulated in the Reporter's Notes explicitly appeals

to the relevance of raw data for expert reports. See Reporter's Notes (2015) to Mass. R. Crim.

P. 14 (b) (2) (C), Massachusetts Rules of Court, Rules of

Criminal Procedure, at 382 (Thomson Reuters 2023) ("The raw testing data

that Rule 14[b][2][C][i] requires the defendant to produce consists of

objective, uninterpreted test results . . . . The intent is to provide both experts with all

of the relevant, objective testing data available at the time each writes his

or her report, thus avoiding the need for supplemental reports or evaluations

that consider pertinent testing data first revealed in the other expert's

report").

In

sum, the motion judge's reliance on Hanright to justify compelled disclosure of

raw data from psychological tests neither requested nor reviewed by the

defendant's testifying expert was an error of law.

iv. Prejudicial error. It is a further question whether the motion

judge's order qualified as prejudicial error.

We hold that it did not. Dudley

insisted that the IQ test scores did not change his opinion. Kinscherff did not mention the raw testing

data; rather, his opinion rested primarily on video and witness accounts

depicting the defendant's actions, Casey's tests showing an absence of

psychosis, and Hebben's conclusions showing likely malingering. Nor was the raw testing data in any sense

critical to Hebben's conclusions. Hebben

administered four psychological tests that were positive for signs of

malingering and reached her opinion independent of the raw data supplied by

nontestifying defense experts. This

stands in contrast to the disclosure deemed harmful in Sliech-Brodeur, 457

Mass. at 322-323 , where the disclosed data was "one of the foundational

reasons supporting [the Commonwealth expert's] opinion that the defendant was

criminally responsible" such that "the over-all strength of the

Commonwealth's case relied heavily on . . . a large quantity of

materials that were erroneously provided to [the Commonwealth

expert]." Finally, although the

prosecutor briefly mentioned discrepancies between the disclosed raw data and

performance on subsequent tests administered by Hebben in closing argument, we

are assured that this "had but very slight effect" on the jury's

verdict in light of the over-all weight of the Commonwealth's evidence

(citation omitted). Flebotte, 417 Mass.

at 353 . In these circumstances, we do

not find a "reasonable possibility that the error[] might have contributed

to the jury's verdict" (citation omitted).

Crayton, 470 Mass. at 253 .

e. The Commonwealth expert's review of the

defendant's suppressed statements. The

defendant claims that Kinscherff's testimony was irreparably tainted by his

review of a suppressed Danvers police station interview. At the least, he argues, the judge was

required to conduct a voir dire hearing to determine the extent of Kinscherff's

reliance on this evidence in formulating his opinion. The judge's ruling permitting Kinscherff to

testify, he contends, "was intensely prejudicial and violated [the

defendant's] Miranda-based rights, as well as his rights to due process,

against self-incrimination, and to confrontation."

i. Background.

On March 3, 2015, the judge allowed the defendant's motion to suppress a

videotaped statement at the Danvers police station. The judge determined that the Commonwealth failed

to prove a valid waiver of Miranda rights beyond a reasonable doubt. Prior to the suppression order, Dudley

reviewed the Danvers police station statement as part of his forensic

evaluation. After the suppression order,

defense counsel instructed Dudley to not rely on the excluded evidence in

forming an opinion about the defendant's mental state.

In

July 2015, as discussed supra, the Commonwealth moved for a court order

requiring the defendant to produce psychiatric, psychological, and medical

records to Kinscherff. Later that day,

during a pretrial hearing, defense counsel agreed to provide Kinscherff with

all materials provided to Dudley. She

stated, "I have no problem -— every record that Dr. Dudley has had I will

send out immediately to the Commonwealth's expert." In a subsequent hearing that month, defense

counsel stated that she had "sent to Dr. Kinscherff everything we have

provided to our expert, Dr. Dudley," including "all the

documents" and "records."[12]

The

Commonwealth obtained a copy of both expert reports on July 22, 2015. Dudley's report indicated that he reviewed

"reports, transcript[,] and video of [the defendant's] statement to the

police on 23 October 2013." It was

unclear whether the videotaped statements referenced in Dudley's report included

the suppressed Danvers police station interview (along with subsequent

interviews not subject to the suppression order). Meanwhile, Kinscherff incorporated portions

of the defendant's suppressed statement into his ninety-six page report.

On

the eve of trial, the defendant filed a motion to exclude Kinscherff's

testimony on the ground that it was based, in large part, on the suppressed

interview. The Commonwealth, in

response, moved to compel Dudley to state the basis of his opinion. After defense counsel agreed to the

Commonwealth's requested relief, Dudley drafted an addendum to his report. The addendum, submitted after the trial had

commenced, states:

"Defense

counsel provided me with a transcript and video of [the defendant's] statement

at the Danvers Police Department.

However, in March 2015, counsel informed me that I was not to rely on

this statement in forming my opinion because the [c]ourt had issued an order

suppressing the statement. I therefore

did not rely on the suppressed statement."

Defense

counsel asked the court "to prohibit [Kinscherff] from testifying as the

Commonwealth expert, or, in the alternative, prohibit [Kinscherff] from relying

on the statement in any way in forming his opinion." She argued also that she could not

effectively cross-examine Kinscherff without opening the door to the suppressed

statements. Based on Kinscherff's

reliance on sources other than the defendant's suppressed statement, the

Commonwealth made an offer of proof that, "if asked during a voir dire[,]

Doctor Kinscherff would say that none of his conclusions rely on the

statement." The defendant did not

seek an evidentiary hearing to explore whether Kinscherff's opinion was tainted

by exposure to the suppressed statements.

See Department of Youth Servs., 398 Mass. at 532 ("If a party believes

that an expert is basing an opinion on inadmissible facts or data, the party

may request a voir dire to determine the basis of the expert's

opinion"). See also Commonwealth v.

Anestal, 463 Mass. 655, 668 (2012); Commonwealth v. Daye, 411 Mass. 719, 742

(1992).

Relying

on his familiarity with Kinscherff's lengthy report, the judge denied the

defendant's request to strike Kinscherff's testimony. He did, however, allow the defendant's

alternative request and precluded Kinscherff from offering the suppressed

statements as a basis for his opinion on direct examination. As for cross-examination, the judge indicated

that questions framed by defense counsel concerning "the basis for

[Kinscherff's] opinion provided on direct [examination]" would not open

the door to suppressed statements.

ii. Analysis.

"We review rulings on the admission of expert testimony for an

abuse of discretion." Hoose, 467

Mass. at 416 . The defendant, citing

Commonwealth v. Vuthy Seng, 436 Mass. 537 , cert. denied, 537 U.S. 942 (2002),

argues that the judge's ruling precluding Kinscherff from mentioning the

Danvers police station statements in his direct examination was not sufficient

to cure the expert's "tainted" exposure to suppressed evidence. Vuthy Seng is inapposite. The jury here, unlike the Vuthy Seng jury,

never heard the suppressed statement.

See id. at 547-548 (admission of defendant's statement made after

defective Miranda warning was not harmless beyond reasonable doubt because

"[t]he statements that the defendant made . . . were used by the

Commonwealth to strike at the heart of his insanity defense").

Moreover,

the record does not support the defendant's claim that Kinscherff's testimony

was "clearly based" on his exposure to the suppressed Danvers police

station statement. It was within the

judge's discretion to accept the Commonwealth's offer of proof where

Kinscherff's report detailed his reliance on various other sources of

information, such as his interviews with the defendant, his classmates, and

Tennessee witnesses; the results of several psychological tests taken by the

defendant; and the defendant's educational and Department of Youth Services

(DYS) records. See Commonwealth v.

McDonough, 400 Mass. 639, 651 (1987).

Furthermore, Kinscherff's trial testimony referenced admissible

evidence, most notably the video recordings from school surveillance

cameras.

The

defendant's claim that the ruling "insulated" Kinscherff from

effective cross-examination also fails.

Defense counsel cross-examined Kinscherff on the topics of adolescent

brain development, the DSM-V's statement that reduced brain volume has been

observed in persons with schizophrenia, and the fact that Kinscherff would

"consider" volume reduction as shown in brain scans. At no point did defense counsel raise a

concern that a particular line of inquiry would open the door to the suppressed

statement.

Accordingly,

the judge's decision to deny the defendant's motion to exclude the

Commonwealth's expert witness and allow the defendant's alternative request for

relief did not constitute an abuse of discretion.

f.

The adolescent brain development jury instruction. In his next argument, the defendant contends

that the judge erred in declining to instruct the jury on adolescent brain

development. The defendant requested

that the judge supplement the deliberate premeditation and extreme atrocity or

cruelty portions of the then-existing model jury instructions on homicide to

inform the jury: "You may also consider

the defendant's age, developmental maturity, and capacity for reasoned

decision-making." Noting that the

defendant was free to argue the issue to the jury based on Kinscherff's

testimony, the judge declined to instruct on adolescent brain development. Because the defendant raised a timely

objection to the omitted instruction, we review for prejudicial error. See Commonwealth v. Kelly, 470 Mass. 682, 687

(2015).

There

was no error. Based on brain science,

social science, and common knowledge, it is well settled that adolescents are

different from adults for constitutional purposes. Commonwealth v. Odgren, 483 Mass. 41, 48

(2019). See Commonwealth v. Mattis, 493

Mass. 216 , 223 (2024), and cases cited.

Our differential treatment of juvenile offenders, however, has been

limited to sentencing and does not extend to a juvenile's capacity to formulate

an intent to commit murder. See Odgren,

supra at 46-48 (instruction permitting jury to infer criminal intent from use

of dangerous weapon was fully applicable to juvenile offender). See also Commonwealth v. Brown, 474 Mass.

576 , 590 n.7 (2016) (United States Supreme Court's focus in Miller v. Alabama,

567 U.S. 460 [2012], was on prohibition against cruel and unusual punishment as

it applied to juvenile sentencing, not to "intent, knowledge or deliberate

premeditation as elements of a crime").

We decline, as did the court in Odgren, supra at 48 , to "except

juveniles generally from application of our usual jury instructions."

From

this line of cases, the defendant draws an analogy between juvenile brain

development and voluntary intoxication and argues that the judge's failure to

provide the requested instruction "prevented the jury from considering

whether adolescent-brain-development issues interacted with, triggered, or

intensified an underlying mental disease or defect" (quotations and

alteration omitted). See Commonwealth v.

Dunphe, 485 Mass. 871 , 886 (2020); Commonwealth v. DiPadova, 460 Mass. 424, 439

(2011) (Appendix).

There

are two reasons why this argument fails.

First, this is not an apt comparison.

In Fernandes, 487 Mass. at 782-783, we distinguished juvenile brain

development from voluntary intoxication based on the "'legislatively

resolved issue' of whether anyone the defendant's age could formulate the

necessary intent for murder."

Second, the judge's ruling did not deprive the jury of the ability to

fairly consider the defendant's age.

Dudley testified that the defendant's "young age" had an

impact on his ability "to really fully appreciate the illness that he was

suffering from," as well as his ability to manage multiple trauma-related

symptoms such as anxiety and agitation.

Kinscherff, on cross-examination, testified to the differences between

an adolescent brain and an adult brain, which include increased impulsivity and

risk taking in the former. Finally, in

closing, defense counsel argued:

"How could a

[fourteen year old] boy cope with an acute psychotic episode? You heard about the juvenile brain and how the

juvenile brain has an effect on teenagers that makes them very different from

adults. They have difficulty with making

decisions under stress, with controlling their impulses. And [the defendant] was no ordinary [fourteen

year old] boy. He was a [fourteen year

old] boy with the burden of this progressive illness."

See Odgren, 483

Mass. at 48-49 (noting that jury were "made sufficiently aware of the

impact that the defendant's age and various diagnoses might have on his ability

to form the requisite intent to kill").

g. The sufficiency of the evidence of aggravated

rape and armed robbery. At trial, the

defendant moved for a required finding of not guilty as to each of the

offenses, both at the close of the Commonwealth's case and at the close of all

evidence. The defendant's motions were

denied. On appeal, with respect to the

sufficiency of the evidence of aggravated rape and armed robbery, the defendant

raises the question whether the victim was alive at the time of the aggravated

rape and armed robbery. In essence, he

contends that the evidence suggested that he committed the actions underlying

these offenses while hiding the victim's deceased body in the woods. The Commonwealth counters that the evidence

was sufficient to establish that the defendant raped the victim and stole her

underwear inside the second-floor bathroom while she was still alive.

"In

reviewing the denial of a motion for a required finding of not guilty, this

court must determine whether the evidence, including inferences that are not

too remote according to the usual course of events, read in the light most

favorable to the Commonwealth, was sufficient to satisfy a rational trier of

fact of each element of the crime beyond a reasonable doubt" (citation and

alteration omitted). Commonwealth v.

Sanchez, 476 Mass. 725, 730 (2017). A

jury cannot convict if the question of guilt is left to conjecture or surmise,

without an adequate basis of fact.

Commonwealth v. Shakespeare, 493 Mass. 67 , 81 (2023). At the same time, the Commonwealth is not

required to exclude every reasonable hypothesis of innocence if the trial

record, viewed in its entirety, supports a conclusion of guilt beyond a

reasonable doubt. Commonwealth v. Platt,

440 Mass. 396, 401 (2003). We address the

defendant's challenge to the aggravated rape conviction and then turn to the

armed robbery conviction.

The

crime of aggravated rape requires the Commonwealth to prove, among other

elements, that the defendant had sexual intercourse with the victim and

compelled the victim to submit by force and against her will. See Commonwealth v. Paige, 488 Mass. 677 , 680

(2021); G. L. c. 265, § 22 (a). Here, the judge further instructed that the

Commonwealth must prove that "[the victim] was alive at the time of

penetration or, in the alternative, . . . that the killing and the

alleged aggravated rape were part of one continuous event."

At

best, the defendant contends, the evidence established that he committed a

sexual assault without penetration in the bathroom or ejaculated on top of the

victim's deceased body in the woods. To

explain highly inculpatory evidence that his sperm cells were found on vaginal

swabs, he argues that this evidence is "hardly proof" of penetration

given the limited number of cells found in the sample and that "sperm

cells can be accidentally transferred easily." He also dismisses the significance of a

student's observation of the defendant's exposed buttocks in the bathroom by

pointing out that she did not observe a sexual assault or "notice anything

unusual."

Considered

in the light most favorable to the Commonwealth, the evidence of aggravated

rape was sufficient. The supporting

evidence included the presence of two sperm cells inside the victim's vaginal

canal. The cells, which were a partial

DNA match to the defendant, were discovered from a portion of one of the

vaginal swabs treated with several chemicals to extract sperm cells. Contrary to the defendant's theory of accidental

transfer, the medical examiner explained that "vaginal swab[s] are

actually swabs that are inserted into the vagina, so again that internal

structure that we talked about, versus the external genitalia swabs which are

conducted on the outside of the genitalia." In addition, the jury could reasonably infer

that the student interrupted the defendant in the act of raping the victim even

though the student just caught a glimpse of the crime.

To

prove armed robbery, the Commonwealth must establish that "the defendant

[took] money or other property from the victim with the intent to steal it,

while armed with a dangerous weapon and by applying actual force to the victim

or putting the victim in fear through the use of threatening words or

gestures." Commonwealth v. Benitez,

464 Mass. 686 , 694 n.12 (2013). Proof

that the defendant took property "from" the victim requires that the

item taken was "within the presence of the victim" -- i.e., within

her "area of control."

Commonwealth v. Jones, 362 Mass. 83, 87 (1972). It is not a robbery if "the intent to

steal is no more than an afterthought to a previous assault." Commonwealth v. Moran, 387 Mass. 644, 646

(1982). See Commonwealth v. Stewart, 460

Mass. 817, 821 (2011) (taking must be with intent to permanently deprive person

of her property).

Here,

it was undisputed that the police discovered the victim's body unclothed from

the waist down and that a Topsfield police officer found a pair of woman's

underwear in the defendant's backpack.

Nonetheless, the defendant contends that the Commonwealth failed to

prove that he specifically took the victim's underwear "from her

person" in the bathroom. The

underwear, he argues, could have been taken in the woods where the police found

other articles of clothing, including the victim's black pants.

The

evidence, and the reasonable inferences drawn therefrom, was sufficient to

prove that the defendant removed the victim's underwear in the bathroom and

took this article of clothing with an intent to permanently deprive. The defendant emerged from the bathroom

carrying a bundle of clothing with only the victim's black pants visible. A chemist found bloodstains on the underwear,

but no seminal fluid or sperm cells. The

absence of seminal fluid or sperm cells, she opined, indicated that the

underwear had been removed prior to the sexual assault. After the rape and murder, the defendant

placed the victim's underwear in his backpack, along with the victim's wallet

and "survival gear," and fled the scene. It was reasonable to infer that the defendant

removed the victim's underwear, along with her pants, prior to the rape, and

that he carried these articles of clothing from the bathroom to the woods. The evidence also supports the inference that

the defendant intended to permanently deprive the victim of her property

because, unlike other articles of her clothing, he kept her underwear.

h. The denial of the defendant's motion to

suppress. The defendant moved to

suppress physical evidence, including the contents of the drawstring backpack

seized by Topsfield police officers, arguing that the evidence was obtained in

violation of his rights under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of Rights. Starting in January 2015, the trial judge

held a four-day evidentiary hearing on the defendant's motion to suppress. At the conclusion, he denied the defendant's

motion under the inevitable discovery exception to the exclusionary rule. In reviewing the denial of a motion to suppress,

we accept the motion judge's findings of fact absent clear error and conduct an

independent review of the judge's ultimate findings and conclusions of

law. Commonwealth v. Jones-Pannell, 472

Mass. 429, 431 (2015).

The

judge's findings of fact bearing on inevitable discovery, supplemented with

undisputed evidence provided by credited witnesses, are as follows. See Commonwealth v. Tavares, 482 Mass. 694,

699 (2019). Officer Hovey responded to a

report of a person walking on Route 1 in Topsfield, at around 12:28 A.M. This section of highway is unsafe for

pedestrians, especially at night. It is

police department policy to offer pedestrians encountered on Route 1 transportation

to a safer location. Hovey parked in the

middle of the road and approached the defendant, who had stopped walking. The defendant provided odd responses to

Hovey's questions, indicating that he was "coming from . . .

Tennessee," and "going . . . no where." He also told Hovey that he did not have

identification on him. During this

exchange, the defendant continued to look straight ahead as if Hovey was not

there.

Officer DeBernardo, who joined Hovey,

asked the defendant what was in his backpack.

The defendant responded, "survival gear." DeBernardo then seized the backpack. He escorted the defendant to the other side

of the road, in between the police cruisers, to get out of traffic. Hovey asked the defendant to empty his

pockets, from which the defendant produced the victim's insurance card, credit

cards, and driver's license.

Hovey

asked the defendant his name. He

responded, "Philip Chism."

Hovey immediately recognized the defendant's name as that of the missing

Danvers teenager. The officer went into

"parent mode" and was "elated . . . to bring [the

fourteen year old] missing boy back to his parents." After contacting Danvers police, Hovey

transported the defendant to the Topsfield police station pending further

arrangements to get the defendant home.

At the police station, Hovey and DeBernardo searched the defendant's

backpack and discovered, among other items, the victim's wallet and underwear,

along with a bloodstained box cutter knife.

The

Topsfield police department had a written policy for handling juveniles in

custody, including runaways in protective custody. Under the policy, runaways that are held at

the police station, while awaiting processing and release to a parent or

guardian, are subject to inventory searches of outer clothing, backpacks, or

other containers brought into the police station as personal property.

The

judge determined that the community caretaking function permitted the officers

to detain the defendant on the busy road at nighttime, question him, and escort

him across the street to a safe location.

There was no reason, he determined, to reach the more complicated issue

whether the community caretaking function justified the pat frisk of the

defendant or the seizure of his backpack.

Instead, the judge concluded that incriminating evidence uncovered from

the backpack would have been inevitably discovered pursuant to the Topsfield

police station's inventory policy. See

Commonwealth v. Hernandez, 473 Mass. 379, 386 (2015), quoting from Commonwealth

v. Sbordone, 424 Mass. 802, 810 (1997) ("evidence may be admissible as

long as the Commonwealth can demonstrate that discovery of the evidence by

lawful means was certain as a practical matter, the officers did not act in bad

faith to accelerate the discovery of evidence, and the particular

constitutional violation is not so severe as to require suppression"

[quotation omitted]). See also

Commonwealth v. O'Connor, 406 Mass. 112, 119 (1989). The judge found that "[t]here [was] no

set of circumstances where, after the Topsfield police approached the defendant

on Old Route 1 at approximately 12:30 [A.M.], they would have failed to ask for

his name and discovered he was the missing youth from Danvers."

The

defendant challenges the judge's finding that, absent the roadside search of

the defendant, the officers would have discovered the defendant's name and

taken him into protective custody. He

argues that the judge "ignor[ed]" the fact that the defendant

revealed his identity only in response to Hovey's "coercive and

unconstitutional display of authority."

Because the defendant previously told the officers that he did not have

identification and did not volunteer his name during the roadside encounter, he

contends, it was not certain as a practical matter that he would have revealed

his name.

We

conclude that the evidence deemed credible supported the judge's determination

that, absent the discovery of the victim's credit cards, it was certain as a

practical matter that the Topsfield officers would have learned the defendant's

name and taken him into protective custody as a runaway. Hovey, in his initial series of questions,

sought to identify the person located on the busy roadway by requesting

identification. The defendant replied

that he was not in possession of identification. Shortly thereafter, Hovey asked the defendant

his name, and the defendant truthfully answered the question.

The

judge's finding that the police would have asked the defendant his name is

supported by the primary purpose of the encounter. The evidence supports the judge's

determination that the officers "were engaged in community caretaking

throughout their interaction with the defendant on Old Route 1." See Commonwealth v. Knowles, 451 Mass. 91,

94-95 (2008) (community caretaking function permits officers to "stop

individuals and inquire about their well-being, even if there are no grounds to

suspect that criminal activity is afoot").

As the Commonwealth notes, "the defendant's strange answers that he

was going 'nowhere'; had come from 'Tennessee'; did not have identification;

and had no address would leave officers at a loss as to how to assist him"

without determining his identity. See

Commonwealth v. Armstrong, 492 Mass. 341 , 349-350 (2023) (under community

caretaking function, officers were permitted to temporarily detain and question

disturbed motel trespasser for twenty minutes to ascertain his identity and

ensure he was not wanted or missing).

i. The prosecutor's closing argument. The defendant contends that actions and

remarks from the prosecutor exceeded the bounds of proper closing argument by

improperly appealing to the jury's sympathy.

Specifically, he argues that the prosecutor (1) improperly displayed a

photograph of the victim, taken while she was still alive, to the jury for a

lengthy time period; and (2) improperly urged the jury to dwell on disturbing

crime scene photographs.[13] Given that

the defendant objected to the prosecutor's use of the victim's photograph, we

review for prejudicial error. See

Commonwealth v. Robinson, 493 Mass. 775 , 788 (2024). The second, unobjected-to claim is reviewed

under our default standard for substantial likelihood of a miscarriage of

justice. Commonwealth v. Mello, 420

Mass. 375, 379-380 (1995). We conclude

that neither the prosecutor's actions nor her statements require a new

trial.

"The

rules governing prosecutors' closing arguments are clear in

principle." Commonwealth v. Kozec,

399 Mass. 514, 516 (1987). A prosecutor

is entitled to forcefully argue for conviction based on the evidence and the

reasonable inferences drawn from that evidence.

Id. "Within this framework,

. . . a prosecutor may attempt to fit all the pieces of evidence

together by suggesting what conclusions the jury should draw from the

evidence" (quotations and citation omitted). Commonwealth v. Rutherford, 476 Mass. 639,

643 (2017). It is also "well

settled that a prosecutor may not appeal to the jury's sympathy." Commonwealth v. Lora, 494 Mass. 235 , 259

(2024), quoting Commonwealth v. Doughty, 491 Mass. 788 , 797 (2023). See Commonwealth v. Bois, 476 Mass. 15, 34

(2016) ("Prosecutorial appeals to sympathy . . . obscure the

clarity with which the jury would look at the evidence and encourage the jury

to find guilt even if the evidence does not reach the level of proof beyond a

reasonable doubt" [quotation and citation omitted]).

We

first address the defendant's claim that the prosecutor improperly displayed a

photograph for one minute and forty seconds.

The photograph, which depicts the victim smiling in a pink sweater, was

previously admitted in evidence. In that

portion of her thirty-six minute closing argument, the prosecutor addressed the

defendant's claim that command hallucinations rendered him unable to conform his

conduct to the requirements of law.[14] Specifically, the prosecutor stated:

"I have

asked you to consider the image of [the victim] in the woods and I will ask you

in your deliberations to examine those autopsy photographs for what they tell

you about the injuries in this case. But

then I would ask you to return to this image of [the victim]. This was [the victim]. . . . This is the [victim] who was alone in that

bathroom and in those woods with [the defendant], not a mentally ill child, not

someone powerless to voices in his head.

The only person powerless in the bathroom, in those woods is [the

victim], because she was alone with the person who robbed her of her underwear,

who raped her, who raped her again with a tree branch, and who murdered her

with deliberate premeditation and with extreme atrocity and cruelty."

Defense counsel

objected to the "length of the display," not to the content of the

argument, and sought a mistrial rather than a possible curative instruction

offered by the judge. While expressing

concern about the duration of the display, the judge denied the motion for a

mistrial.

Viewing

the prosecutor's display of the photograph in context of the evidence before

the jury and the judge's instructions, we discern no prejudicial error. See Commonwealth v. Coren, 437 Mass. 723,

730-731 (2002). A prosecutor may

"tell the jury something of the person whose life had been lost in order

to humanize the proceedings, but must refrain, when personal characteristics

are not relevant to any material issue, . . . from so emphasizing

those characteristics that it risks undermining the rationality and thus the

integrity of the jury's verdict" (quotations and citation omitted). Fernandes, 487 Mass. at 791. Displaying a vibrant, joyful photograph of

the victim for any length of time, no doubt, evokes sympathy given the horrific

nature of the crimes. Nonetheless, the

prosecutor's use of a trial exhibit, in these circumstances, did not undermine

the rationality of the jury's verdict.

See Commonwealth v. Gouse, 461 Mass. 787, 797-798 (2012), reversed on

other grounds by Commonwealth v. Guardado, 491 Mass. 666 , 689-690, S.C., 493

Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024) (difficult to conceive of

prejudice to defendant from alleged prolonged display of victim's photograph

during testimony of three witnesses); Commonwealth v. Correia, 65 Mass. App.

Ct. 27, 29-30 (2005) (noting that jury will have exhibits, including victim's

photograph, for entire length of deliberations).

The

prosecutor displayed the photograph to underscore her argument that the victim,

as opposed to the defendant, was the truly powerless person in the brutal

encounter. See Rutherford, 476 Mass. at

643, 646 (prosecutor may argue forcefully within bounds of zealous

advocacy). The argument was material to

an issue raised at trial, i.e., the defendant's ability to control the victim

prior to inflicting deadly force, not a gratuitous appeal to sympathy. Cf. Commonwealth v. Cheng Sun, 490 Mass. 196 ,

211-212 (2022) (testimony of victim's son detailing victim's work ethic and

close relationship to his son was improper); Commonwealth v. Alemany, 488 Mass.

499 , 513 (2021) (improper argument that victim would never walk down aisle with

her father on her wedding day had no relevance to defendant's guilt). Furthermore, in context with the trial

evidence, it is unlikely that a less-than-two-minute display of the victim's

photograph had an inflammatory effect on the jury given the shocking nature of

the crime. See Bois, 476 Mass. at

35 . Finally, the judge mitigated

potential prejudice by repeatedly instructing the jury that verdicts must be

based on the evidence, not feelings of sympathy, and that closing arguments are

not evidence.

Next,

the defendant asserts that the prosecutor engaged in misconduct by urging the

jury to focus on gruesome crime scene photographs. The prosecutor argued:

"[T]he only

still image that matters in this case is the image of [the victim] in the

woods, the image that the defendant painted of [the victim] stripped, battered,

brutalized and violated, framed by a fallen fence, the defendant's school bag

discarded nearby with his I.D. like some kind of terrible signature. That is the only still image in this case

that tells you what was happening in the mind of [the defendant] on October

22nd, 2013. And that's the image that

Doctor Dudley, despite his thorough preparation, never considered."

There

was no error because the prosecutor was permitted to refer to crime scene

photographs, admitted as the judge instructed, to demonstrate "the nature

and extent of [the victim's] injuries, as it relate[d] to the state of mind of

the defendant." See Commonwealth v.

Camacho, 472 Mass. 587, 607 (2015) (prosecutor entitled to focus jury on

disturbing facts where relevant to issue raised in trial).

j. The denial of the defendant's motion for a

change of venue. To address the impact

of pretrial publicity, the defendant moved for a change of venue "to a

county outside the boundaries of the Boston media market." See Mass. R. Crim.

P. 37 (b) (1), 378 Mass. 914 (1979). After a hearing, the judge denied the motion,

concluding that the defendant had failed to establish a pretrial presumption of

prejudice requiring a change of venue.

He reserved judgment on the issue of actual prejudice, and subsequently

denied a renewed motion for a change of venue filed during empanelment. On appeal, the defendant argues that these

rulings deprived him of his right to trial before an impartial jury.

"A

trial judge should exercise his or her power to change the venue of a jury

trial with great caution and only after a solid foundation of fact has first

been established" (quotation, citation, and alteration omitted). Commonwealth v. Clark, 432 Mass. 1, 6

(2000). The defendant is required to

show either presumptive prejudice or actual prejudice. See Commonwealth v. Smith, 492 Mass. 604 , 609

(2023); Commonwealth v. Toolan, 460 Mass. 452, 462 (2011), S.C., 490 Mass. 698

(2022). This court reviews decisions on

motions for change of venue for abuse of discretion. Hoose, 467 Mass. at 405 .

Presumptive

prejudice exists "in the extreme case where a trial atmosphere is so

utterly corrupted by media coverage that a defendant can obtain a fair and

impartial jury only through a change in venue" (quotations and citation

omitted). Commonwealth v. Entwistle, 463

Mass. 205, 221 (2012), cert. denied, 568 U.S. 1129 (2013). To determine presumptive prejudice, we weigh

two factors set forth in Commonwealth v. Morales, 440 Mass. 536, 540-542

(2003). See Commonwealth v. Bateman, 492

Mass. 404 , 430 (2023). First, we examine

"whether the nature of the pretrial publicity was both extensive and

sensational" (quotation and citation omitted). Commonwealth v. Hart, 493 Mass. 130 , 141-142

(2023). Media coverage is

"extensive" when it is "all-consuming and constant"

(citation omitted). Id. at 142. Pretrial publicity is not likely to be

extensive, in contrast, when it "becomes more factual and the frequency of

coverage decreases in the time period between the crimes and jury

empanelment." Hoose, 467 Mass. at

406 . And publicity "is sensational

when it contains emotionally charged material that is gratuitous or inflammatory,

rather than a factual recounting of the case." Id. at 407 .

Second, we examine "whether the judge was in fact able to empanel

jurors who appear impartial." Id.

at 406 .

Our

review of the record supports the judge's finding that the extensive media

coverage, while sometimes graphic due to the nature of the crimes, had been

"predominately factual in nature and [had] not risen to the level of

[being] emotionally charged, gratuitous, or inflammatory, even with the

coverage [of] the [d]efendant's alleged [suppressed] confession." See Morales, 440 Mass. at 540 (media

references to defendant's confession, criminal record, victim's twenty-one year

service as police officer, victim's popularity in community, and memorials in

victim's honor were "significantly short of the type of emotionally

charged, inflammatory, sensationalistic coverage needed to support a

presumption of prejudice" [citation omitted]). See also United States v. Angiulo, 897 F.2d

1169, 1181 (1st Cir.), cert. denied, 498 U.S. 845 (1990) (no presumption of

prejudice despite frequent characterization of defendant as mafia crime

boss).

Additionally,

the defendant failed to establish that it was difficult to empanel an impartial

jury. "Where a high percentage of

the venire admits to a disqualifying prejudice, a court may properly question

the remaining jurors' avowals of impartiality and choose to presume

prejudice" (citation omitted).

Morales, 440 Mass. at 541 . The

judge individually questioned 140 potential jurors, and less than ten percent

of the venire was excused, either in whole or in part, due to exposure to

prejudicial publicity. See Hart, 493

Mass. at 142 (no presumption of prejudice where less than twenty percent of

potential jurors were excused); Commonwealth v. Angiulo, 415 Mass. 502, 515

(1993) (no presumption of prejudice where forty-two percent of potential jurors

excused).

The

defendant also failed to establish that he was actually prejudiced by pretrial

publicity. See Hoose, 467 Mass. at

408-409 . In a case involving extensive

pretrial publicity, "the voir dire procedures utilized by the judge are

particularly important." Id. at

408 . After review of the trial

transcript, we conclude that the judge conducted careful and thorough voir dire

to address the potential risks of pretrial publicity. Over the course of the nine-day empanelment,

potential jurors were cleared for hardship and knowledge of any witnesses, and

were required to fill out a detailed fifteen-page questionnaire. The questionnaire provided a summary of the

facts of the case and required each potential juror to disclose the

following: (1) any "knowledge of

this case gained from any source"; (2) the source of such knowledge (with

check boxes for television, radio, newspapers, magazine, Internet, social

media, family or friends, overheard discussion, and other); (3) the details of

the case the juror was able to recall; (4) any awareness of a "specific

impact this criminal allegation has had on [the juror's] community"; (5)

his or her primary source of news; (6) how often he or she read print or online

newspapers (including nine local examples); (7) the frequency of the juror's

exposure to news from radio, television, or social media platforms; and (8) the

juror's familiarity with the case prior to the day of empanelment. With this information in hand, the judge

asked follow-up questions during individual voir dire to probe the potential

jurors' exposure to pretrial publicity.

See Morales, 440 Mass. at 542 (right to fair and impartial jury does not

include right to jurors with no prior knowledge of case).

Of

the twelve jurors who returned a verdict, nine reported not knowing any details

beyond the facts set forth in the court's summary. One recalled that the "defendant went to

the movies or something afterwards, . . . and then was found later on

Route 1, I think, in Topsfield."

Another seated juror also recalled "Mr. Chism was picked up on

Route 1." And the twelfth juror

heard a radio report that the judge was "going to make a decision on

whether the defendant was able to stand trial." He added, "I don't know what the

decision was, but that's what I heard just briefly. That's the only thing I've heard about the

case." See Smith, 492 Mass. at

609-610. Defense counsel's failure to

challenge any of the seated jurors for cause on grounds of exposure to pretrial

publicity "further belies any claim of juror partiality." Morales, 440 Mass. at 543 .[15]

Where the defendant failed to establish a

solid foundation of fact establishing presumptive prejudice or actual

prejudice, the judge did not abuse his discretion in denying the defendant's

motions for a change of venue.

k.

The proportionality of the aggravated rape and armed robbery sentences

under art. 26. At the time of

sentencing, the judge, defendant, and Commonwealth assumed, based on Diatchenko

v. District Attorney for the Suffolk Dist., 466 Mass. 655, 661-667 (2013),

S.C., 471 Mass. 12 (2015), that the defendant was entitled to a so-called

Miller sentencing hearing to "consider the defendant's age, the

possibility of rehabilitation, and the brain development of

adolescents." See Miller, 567 U.S.

at 477-478 . After such a hearing, and

the application of then-existing parole eligibility statutes, the judge

sentenced the defendant to mandatory life imprisonment with the possibility of

parole in twenty-five years for his conviction of murder in the first

degree. He sentenced the defendant on

the aggravated rape and armed robbery convictions to imprisonment for from

forty years to forty years and one day, to run concurrently with the life

sentence for murder in the first degree -- a sentence, the judge indicated,

that did not "utilize the horrific rape and robbery of [the victim] to

punish the defendant for this unspeakable murder more than the law

allows." Under the aggregate

sentence, the defendant is parole eligible at age fifty-four.

The defendant contends that the aggravated

rape and armed robbery sentences must be vacated, and the case remanded for

resentencing, as his current sentence violates the proportionality requirement

of art. 26. This contention raises two

issues: first, whether the defendant was

entitled to a Miller hearing to begin with; and second, if so, whether the

judge's consideration of the Miller factors supported his sentence.[16]

A juvenile is entitled to a Miller hearing

if a sentence is presumptively disproportionate under art. 26. See Commonwealth v. Concepcion, 487 Mass. 77 ,

89 n.19, cert. denied, 142 S. Ct. 408 (2021).

See also Cepulonis v. Commonwealth, 384 Mass. 495, 497 (1981) ("To

reach the level of cruel and unusual, the punishment must be so

disproportionate to the crime that it shocks the conscience and offends

fundamental notions of dignity" [quotation and citation omitted]). We have yet to decide the issue presented in

this appeal: whether a sentence imposed

on a juvenile convicted of both homicide and nonhomicide offenses against the

same victim and sentenced in the aggregate to parole eligibility exceeding that

allowed for a conviction of murder in the first degree is presumptively

disproportionate.

Our analysis starts with the art. 26

proportionality principles articulated in Commonwealth v. Perez, 477 Mass. 677,

678-679 (2017) (Perez I), S.C., 480 Mass. 562 (2018) (Perez II), a case

involving the sentencing of a juvenile, convicted of violent nonhomicide

crimes, to imprisonment for over thirty years.

To assess proportionality, we examined the disparity "between the

sentence imposed on the juvenile and punishments prescribed for the commission

of more serious crimes in the Commonwealth." Id. at 685 , quoting Cepulonis, 384 Mass. at

498 . The lengthy sentence was

presumptively disproportionate, we concluded, because "the aggregate

sentence imposed on this juvenile defendant, albeit for serious crimes, is more

severe -- at least as to parole eligibility -- than a sentence that could be

imposed on a juvenile convicted of murder." Perez I, supra at 685-686 . "That presumption is conclusive, absent

a hearing to consider whether extraordinary circumstances warrant a sentence

treating the juvenile defendant more harshly for parole purposes than a

juvenile convicted of murder." Id.

at 686 . See Commonwealth v. Lutskov, 480

Mass. 575, 583 (2018) (youthful offender's mandatory twenty-year minimum

sentence for armed home invasion with resulting parole eligibility exceeding

that applicable for murder was presumptively disproportionate under art.

26).

The same reasoning applies to the

defendant's case. We recognize that the

defendant, unlike the juvenile offender in Perez I, is "a juvenile convicted

of murder." Notwithstanding that

distinction, the same proportionality benchmark of parole eligibility for

murder in the first degree applies to nonhomicide offenses in the same homicide

case and involving the same victim. To

hold otherwise risks diminishing State constitutional protections afforded to

juvenile offenders convicted of murder by allowing lengthy sentencing imposed

on the nonhomicide portion of a sentence to dictate parole eligibility. See Commonwealth v. Wiggins, 477 Mass. 732,

747-748 (2017) (juvenile defendant entitled to resentencing on home invasion

and robbery convictions in light of Diatchenko adjustment to sentence on murder

conviction).

The Commonwealth contends that

Commonwealth v. Sharma, 488 Mass. 85 (2021), compels a different result. Sharma, however, is distinguishable because

the sentences imposed for nonhomicide offenses were not presumptively

disproportionate. There, a seventeen year

old defendant pleaded guilty to murder in the second degree for the death of

one victim, and two counts of armed assault with intent to murder for shooting

two of the victim's friends. Id. at

86. He was sentenced to life in prison

with the possibility of parole for the murder conviction and received two

concurrent sentences of from seven to ten years for the assaults to run

consecutive to the life sentence.

Id. The court found the

consecutive sentences not presumptively disproportionate under art. 26. Id. at 92-93.

In weighing proportionality, the court determined that the additional

punishment beyond the murder conviction resulted from the defendant's

convictions for the armed assault with intent to murder two others. Id.

See Commonwealth v. LaPlante, 482 Mass. 399, 403 (2019) (declining to

set ceiling or floor for aggregate parole eligibility for juvenile offender

convicted of murdering multiple victims).

Moreover, the sentences of from seven to ten years imposed for the

nonhomicide offenses did not themselves, unlike in the instant case, exceed the

benchmark of parole eligibility for a juvenile convicted of murder in the first

degree.

Having determined that the sentences

imposed on the nonhomicide offenses were presumptively disproportionate, the

next question to address is whether the judge abused his discretion in weighing

the Miller factors. The judge ordered a

presentence investigation. See

G. L. c. 119, § 58; Mass. R. Crim. P. 28 (d), 378

Mass. 898 (1979). The report resulting

from that investigation addressed the defendant's familial, educational,

social, physical, and mental health histories.

At the sentencing hearing, the defendant called no witnesses, but

admitted six exhibits, including the defendant's DYS records and the results of

a psychological examination conducted during the defendants' commitment

pursuant to G. L. c. 123, § 18 (a). Furthermore, the judge relied on the evidence

presented at trial on the topics covered in the presentence report as well as

expert testimony concerning the defendant's mental health. See Perez II, 480 Mass. at 564 n.3

(discussing judge's ability to rely on trial evidence). We view the trial judge's posttrial findings

of fact with "special deference."

Id.

While "merely stating that [the

judge] considered the Miller factors, without more, would constitute a cursory

analysis that is incompatible with art. 26." Deal v. Massachusetts Parole Bd., 484 Mass.

457 , 462 (2020), there is no indication that the judge engaged in such a

cursory analysis here. In addition to

traditional sentencing considerations, the judge considered the nature and

circumstances of the crimes; the defendant's age, family circumstances, and

mental health; the brain development of adolescents; and the possibility of

rehabilitation. He observed that the

defendant "did not start life on third base"; his absentee father was

"abusive, harsh, unfaithful, and unpredictable," and his mother had

"mixed success" in providing emotional and financial support. The crimes, however, did not reflect the

immaturity or impulsivity of youth. The

defendant "carefully and deliberately prepared to kill his math

teacher."

Relying on the sentencing memorandum and

the judge's statements during the hearing, we conclude that the defendant was

afforded all the protections that a juvenile sentenced after Perez I would have

received. Perez I, 477 Mass. at

686. The defendant's allegations of

error concern the weight assigned to the Miller factors, a matter within the

judge's discretion. See Lutskov, 480

Mass. at 582 .

The proportionality requirements of art.

26 are meant to ensure that a defendant's punishment is not "so

disproportionate to the crime that it 'shocks the conscience.'" Diatchenko, 466 Mass. at 669 , quoting

Cepulonis, 384 Mass. at 497 . The

nonhomicide offenses were distinct heinous acts that inflicted, as the

Commonwealth argues, "suffering and humiliation in their own

right." A forty-year prison

sentence does not shock the conscience.

l.

Relief under G. L. c. 278, § 33E. The defendant asks that we exercise our

extraordinary power pursuant to G. L. c. 278, § 33E, and either

order a new trial or reduce the murder verdict.

After carefully reviewing the record, we conclude that none of the

asserted errors, standing alone or cumulatively, requires a new trial, and that

there is no other basis on which to disturb the jury's verdict.

Judgments

affirmed.

footnotes

[1] We

acknowledge the amicus briefs submitted in support of the defendant by the

youth advocacy division of the Committee for Public Counsel Services and the

Massachusetts Association of Criminal Defense Lawyers.

[2] The jury

heard conflicting evidence regarding the defendant's reason for staying after

school. According to a student, the

victim asked the defendant to stay after school because the defendant "was

struggling a little bit . . . and [the victim] wanted to help him." The student added that the victim was

"really nice about it."

[3] The facts

surrounding the victim's and defendant's appearances and movements throughout

the high school are based largely on video recordings from the school's

motion-activated network of more than one hundred surveillance cameras. A video compilation of relevant clips, from

6:53 A.M. to 4:31 P.M., and still images from the video compilation were

introduced in evidence.

[4] The defendant

is dark-skinned.

[5] Based on this

evidence of perimortem injury (inflicted at around the time of death or during

the dying process), the defendant argued that the Commonwealth failed to

establish that the victim was alive at the time of this injury. The jury found the defendant not guilty of

aggravated rape "to wit:

penetrating genital opening with tree branch."

[6] Anime is

"a style of animation originating in Japan that is characterized by stark

colorful graphics depicting vibrant characters in action-filled plots often

with fantastic or futuristic themes."

Merriam-Webster Online Dictionary, https:

//www.merriam-webster.com/dictionary/anime

[https://perma.cc

/A3DG-8S8E].

[7] Among the

associated features supporting a diagnosis of schizophrenia, the DSM-V

notes: "Currently, there are no

radiological, laboratory, or psychometric tests for the disorder. Differences are evident in multiple brain

regions between groups of healthy individuals and persons with schizophrenia,

including evidence from neuroimaging, neuropathological, and neurophysiological

studies. Differences are also evident in

cellular architecture, white matter connectivity, and gray matter volume in a

variety of regions such as the prefrontal and temporal cortices. Reduced overall brain volume has been

observed, as well as increased brain volume reductions with age." American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders 101-102 (5th ed. 2013).

[8] Manga are

"Japanese comic books and graphic novels considered collectively as a

genre." Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/manga

[https://perma.cc/42K5-LS3A].

[9] We note that

the judge's decision predated Rodriguez, 484 Mass. 677 .

[10] Further,

defense counsel argued to the jury that Dudley, utilizing his vast clinical

experience, observed the defendant's auditory command hallucinations and

delusional behavior.

[11] "If the

notice of the defendant . . . indicate[s] that statements of the

defendant as to his or her mental condition will be relied upon by a

defendant's expert witness, . . . the defendant [may be ordered] to

submit to an examination." Mass. R.

Crim. P. 14 (b) (2) (B).

[12] The

defendant does not dispute the Commonwealth's contention that the discovery

supplied to Kinscherff by defense counsel included the suppressed Danvers

police department videotaped statement.

[13] The

defendant contends also that the prosecutor misstated the evidence by arguing

that the defendant raped and robbed the victim in the bathroom. Having found sufficient evidence to support

the Commonwealth's argument, see supra, the claim that the prosecutor misstated

the evidence is unavailing.

[14] Defense

counsel had argued: "[W]hen [the

defendant] followed [the victim] into that bathroom he was not himself, he was

not the kind, smart [fourteen year old] boy.

He was totally and absolutely responding to the terrible command

hallucinations that were in his head."

[15] The court

conducted a competency evaluation of the defendant after the third day of

empanelment. In opposition, the

prosecutor expressed her belief that the defendant was "feigning" to

delay trial, was "manipulating" the court, and was "concerned

that we are all going to be held hostage to his behavior for the next four to

six weeks." The judge found the

defendant competent, and when empanelment resumed, the defense renewed its

motion for a change of venue or, in the alternative, dismissal of the

venire. Defense counsel pointed to

widespread media coverage of the prosecutor's statements. The judge denied the motion without

prejudice, indicating that "everything that's happened since impanelment

stopped is important" and that he would address any potential exposure to

this information in voir dire. Relying

on press coverage of the competency hearing, the defendant argues on appeal

that the venire was likely influenced by the prosecutor's "inflammatory

comments." The defendant, however,

has not brought to our attention a single instance where a potential juror

reported knowledge of the prosecutor's alleged inflammatory comments.

[16] The

defendant further argues that the aggregate sentence with parole eligibility at

forty years constitutes the functional equivalent of life without the

possibility of parole in violation of art. 26.

See Commonwealth v. Brown, 466 Mass. 676 , 691 n.11 (2013), S.C., 474

Mass. 576 (2016). While we decline to

draw a bright-line rule for what the functional equivalent of life without the

possibility of parole is in terms of years, we conclude that the defendant's

aggregate sentence allowing parole eligibility at age fifty-four does not reach

that threshold. See Commonwealth v.

LaPlante, 482 Mass. 399, 406-407 (2019) (upholding forty-five year aggregate

sentence for juvenile convicted of three counts of murder in first degree). See also Diatchenko, 471 Mass. at 29-30

("The art. 26 right of a juvenile homicide offender in relation to parole

is limited. To repeat: it is not a guarantee of eventual release,

but an entitlement to a meaningful opportunity for such release based on

demonstrated maturity and rehabilitation").