Commonwealth v. Muller

477 Mass. 415

78 N.E.3d 51

COMMONWEALTH

v.Christian MULLER.

SJC-11176

Supreme Judicial Court of Massachusetts, Worcester..

Argued December 9, 2016

Decided July 11, 2017

Deirdre L. Thurber for the defendant.

Susan M. Oftring, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.

HINES, J.

During an armed home invasion of an apartment in Dudley, the defendant, Christian Muller, and an accomplice¹ shot and killed two of the occupants and critically wounded a third. After a jury trial, the defendant was convicted of two counts of murder in the first degree, on the theories of deliberate premeditation and felony-murder,² armed assault with intent to murder, armed home invasion and unlawful possession of a firearm.

At trial, the defendant admitted that he had shot the victims; his primary defense was that he lacked criminal responsibility because of mental illness and cocaine addiction. On appeal, the defendant argues that (1) the jury instruction on criminal responsibility and voluntary intoxication was erroneous because it failed to comply with Commonwealth v. Berry , 457 Mass. 602, 931 N.E.2d 972 (2010), S .C ., 466 Mass. 763, 2 N.E.3d 177 (2014), and Commonwealth v. DiPadova , 460 Mass. 424, 951 N.E.2d 891 (2011) ; (2) certain of the other jury instructions were fatally flawed; and (3) the prosecutor's closing argument was improper. We affirm the convictions and decline to grant relief pursuant to G.L.c. 278, § 33E.

Background . 1. The trial . We summarize the facts as the jury could have found them, reserving additional details for later discussion.

a. The Commonwealth's case . On the evening of July 8, 2007, Joanne Mercier was in her bedroom in the third-floor apartment that she shared with her brother, Aaron Bash, in Dudley. Bash was asleep in his bedroom and their friend, Denise Johnston, was sleeping on a sofa in the living room. Shortly after midnight on July 9, the defendant and Marc Letang kicked down the back door and entered the apartment with their guns drawn.³ The men walked through the kitchen and entered Mercier's bedroom, asking where Bash was. After Mercier told them that Bash was asleep in his bedroom, the men left Mercier's room and awoke Bash. As Mercier followed the men into Bash's bedroom, she heard the defendant asking Bash whether he was sleeping with the defendant's wife. Bash denied the accusation.

Letang went into the living room and brought Johnston into Bash's bedroom at the defendant's request. The defendant was at the foot of the bed facing the victims, who were all sitting on the bed, while Letang stood in the corner of the room. The defendant continued to accuse Bash of sleeping with his wife and Bash repeatedly denied it, stating that he would not do that to his friend. Finally, the defendant told Bash that if he just admitted it and told the defendant what he wanted to hear, this would all be over. When Bash refused to admit to the defendant's accusations, the defendant said, "Fuck this," and shot Johnston in the head. As Bash asked the defendant, "What the eff are you doing?" the defendant shot Mercier in the head. When Mercier regained consciousness a few minutes later, she realized that the defendant and Letang were gone, and discovered that Johnston was still breathing despite the gunshot to her head.

Mercier had not yet comprehended that she had been shot, but knew she needed to call an ambulance for Johnston. She retrieved her cellular telephone and then called to Bash. When Bash failed to answer her, she looked him and saw that he had been fatally shot in the head. Mercier was so distraught that she had to telephone 911 twice because, at first, she could not remember where she was.

Shortly after midnight on July 9, 2007, a patron was leaving a nearby bar when he heard five to seven loud noises he assumed were fireworks. Approximately one minute later, he observed two men, whom he was able to describe, running around the corner; one of the men was carrying a firearm. The witness heard someone say, "Go. Let's go," as the men got into a vehicle and drove away.

When officers entered the apartment, they observed Mercier conscious and bleeding from her head. She was in shock, crying and "yelling things," but was able to communicate that "Christian" shot her.

Officers then discovered Bash and Johnston. Bash was found on the bed; he was dead from two gunshot wounds to his head. Johnston was found near the end of the bed, but she appeared to be alive. She later died at a hospital of a gunshot wound to her head.

Right before the shootings, the defendant and Letang had been at the home of a friend of the defendant, who lived in Webster; a woman and a man were also there. Both the woman and the defendant had been smoking "crack" cocaine. The woman testified that the more "crack" the defendant smoked, the more "crazy" he became. The defendant was agitated; he was pacing back and forth, waving his gun around, saying that he was going to put bullets in their heads. He also said that Bash owed him money for drugs and that Mercier was "just a stupid bitch."⁴ Prior to leaving the house, the defendant said he was going to "take care of some business" and left with his firearm.

The defendant and Letang returned to the friend's home. They came running up the stairs, saying that they had just murdered some people. The defendant and Letang told the woman that if she said anything about their involvement in the murders that they would "put a cap in her head." There was discussion about killing the woman because she knew and had seen too much. The defendant eventually went outside the house and demanded that the woman join him. He was pacing in the road with his firearm, telling the woman both that he did not mean to do it and that he did not commit the murders. Ultimately, however, the defendant told her that he "shot the motherfucker," referring to Bash, and that he put the three victims on the bed and shot them execution style. He put the gun to the woman's head several times, threatening to shoot her in the head if she said anything about his involvement in the murders.

The woman and the defendant walked down the street where the defendant stopped to hide his gun, which the defense stipulated was used to shoot the victims, in the cellar of a home. He warned the woman not to tell anyone where he hid the gun. Next, they walked to the defendant's parents' home, where he changed out of his bloody clothing. Finally, they walked through town and ended up back at the friend's home where they slept until later that morning.

When they woke up, the police had the house surrounded. The defendant got up, saying, "I didn't do it," as he left the house and ran into some woods behind the home, where he was arrested.

The defendant was interviewed by two State police troopers at the Dudley police department. Although the defendant initially declined to speak with the officers, after he spoke to his wife and mother, he agreed to the interview. The defendant admitted that he was in Webster the night before and "smoked a bunch of crack," but initially denied seeing Bash.

However, after the defendant figured out that Mercier had survived and was told that the police had found his gun, he admitted to committing the shootings and stated that he knew he was going to jail. The defendant stated that he had been doing a lot of drugs that night, and after "the gun went off" and he shot Johnston, he thought, "If I leave them alive, I'm going to jail for my life, so I [shot Bash and Mercier]."

He also told the officers, "When I'm on drugs, I see ... lots of things. I get real crazy. I hallucinate ... I have psych attacks. I get rages. I am a different total person." The defendant told the officers that he was off his medications and that he was bipolar and schizophrenic, had anxiety, and suffered from panic attacks and paranoia. He also noted that when he is off his medication, he gets even more paranoid and goes "cuckoo."

b. The defendant's case . The defendant offered five witnesses in support of his lack of criminal responsibility defense, including three expert witnesses.

i. Dr. Giulia Mezzacappa . Mezzacappa, a clinical psychiatrist, evaluated the defendant at an organization providing mental health services, in February and June, 2006, one year before the murders.⁵ As part of her psychiatric evaluation of the defendant, Mezzacappa also interviewed the defendant's family, including his wife, sister, stepfather, and mother. Based on Mezzacappa's evaluation of the defendant and interviews with his family, Mezzacappa diagnosed the defendant with schizoaffective disorder.⁶ At the time of Mezzacappa's February, 2006, evaluation, the defendant had stopped taking his prescribed antipsychotic and anxiety medications. As a result of her evaluation, Mezzacappa prescribed an antipsychotic mood stabilizer. During his evaluations, the defendant and his family freely reported the defendant's use of heroin, marijuana, and "crack" cocaine.

Mezzacappa opined that "substance abuse can definitely worsen any mental illness, especially a psychotic disorder or mood disorder," and agreed that drug usage can also trigger psychotic effects in an individual suffering from a mental disease or defect. She noted that she had no reason to believe that the defendant was exaggerating his symptoms or malingering, especially where his family also supported his history. Nonetheless, she did believe that the defendant was aware of the effect drugs like cocaine and heroin had on him, although she could not opine as to the degree of his knowledge. Finally, Mezzacappa had no opinion as to whether the defendant was criminally responsible for his actions at the time of the murders.

ii. Dr. Hanya Bluestone . Bluestone, a forensic psychologist employed by the courts, evaluated the defendant's competence to stand trial and criminal responsibility, pursuant to G.L.c. 123, § 15 (a ), on July 10, 2007. In order to evaluate the defendant's...