COMMONWEALTH v. GOODWIN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, Jahvon Goodwin, the defendant, was convicted of second degree murder. The sole issue at trial was the defendant's criminal responsibility. The defendant raises several claims of error on appeal. We agree with the defendant that the jury instruction on the so-called “presumption of sanity” caused him prejudice, and accordingly reverse the judgment.

Background. On August 15, 2012, the defendant killed Rashad Lesley Barnes, a stranger, by stabbing him repeatedly near a bus stop in the Roxbury section of Boston. Two experts opined that the defendant had a mental disease, schizophrenia, and that he lacked the substantial capacity to conform his conduct to the requirements of law.² Thus, the experts testified that the defendant was not criminally responsible for his actions.

Discussion. The defendant contends that the judge erred in instructing the jurors that they could consider “that the great majority of people are legally sane and that there is a resulting likelihood that any particular person is legally sane.” In Commonwealth v. Lawson, 475 Mass. 806, 815 n.8 (2016), the Supreme Judicial Court concluded that “given the meager weight of this inference and the risk of juror confusion regarding the burden of proof, judges should not instruct juries regarding this inference.” ³ Because the defendant objected to the instruction, we review the error for prejudice.

The judge acknowledged at the charge conference that the Model Instructions on Homicide at the time did not “include anything regarding the so-called inference or presumption of sanity” but expressed his view that he was required to instruct on that presumption based on then-current case law. See Commonwealth v. Keita, 429 Mass. 843, 846 (1999) (“A jury instruction concerning the presumption of sanity should be given in every case in which the question of the defendant's criminal responsibility is raised”); Model Jury Instructions on Homicide 2-1 through 2-9 (2013). Though the judge in his instructions also reminded the jurors that the Commonwealth conceded that the defendant had schizophrenia, the judge's insertion of the word “legally” before the word “sane” in the model instruction further conflated the legal and medical definitions of sanity, and raised the risk of precisely the confusion against which Lawson cautions.

The sole issue at trial was criminal responsibility, on which the evidence was far from overwhelming. The only two experts to testify on the question of criminal responsibility opined that the defendant was not criminally responsible.⁴ See Lawson, 475 Mass. at 818. Compare Commonwealth v. Waweru, 480 Mass. 173, 187-188 (2018). In the circumstances, we “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Commonwealth v. Vinnie, 428 Mass. 161, 163 (1998), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

We briefly address certain of the defendant's other contentions that may arise at any retrial.⁵ First, the judge did not abuse his discretion by excluding evidence of which party retained Dr. Martin Kelly, as that evidence would have suggested that the Commonwealth was withholding evidence from the jury. See Commonwealth v. Meas, 467 Mass. 434, 450, cert. denied, 135 S. Ct. 150 (2014) (“In the circumstances of this case, we conclude that the judge did not abuse his discretion in precluding inquiry concerning possible bias”).

The judge also did not abuse his discretion in admitting prior bad act evidence. “Evidence of prior bad acts ․ may be admissible if relevant for other purposes such as common scheme, ․ intent, or motive.” Commonwealth v. Oberle, 476 Mass. 539, 550 (2017), citing Commonwealth v. Carriere, 470 Mass. 1, 16 (2014). “However, evidence of other bad acts is inadmissible where its probative value is outweighed by the risk of unfair prejudice ․” Mass. G. Evid. § 404(b)(2) (2019). “Determinations of the relevance, probative value, and prejudice ․ are left to the sound discretion of the judge ․” Oberle, supra, quoting Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007). Here, the judge did not abuse his discretion in concluding that the evidence was relevant and admissible, as it went to the defendant's state of mind and had been referenced earlier in the trial.⁶

Judgment reversed.

Verdict set aside.

FOOTNOTES

2.   One of the experts also testified that the defendant lacked the substantial capacity to appreciate the wrongfulness of his actions.

3.   Although the judge did not have Lawson's guidance when he instructed the jury, the Commonwealth acknowledges that “the defendant is entitled to the benefit of Lawson, as that case was released while the defendant's appeal was pending on direct review.” Commonwealth v. Muller, 477 Mass. 415, 431 (2017).

4.   We note that all three expert witnesses testified -- and the Commonwealth conceded -- that the defendant had schizophrenia. However, though symptoms of schizophrenia include an inability to distinguish between what is real and what is imagined, a diagnosis of schizophrenia does not in and of itself equate to a lack of criminal responsibility.

5.   We consider the defendant's claim of improper burden shifting in the prosecutor's closing, and of prejudice flowing from a description by a rebuttal witness of a person as “Muslim-looking,” unlikely to recur at any retrial. The defendant's claim of error based on an instruction pursuant to Commonwealth v. Mutina, 366 Mass. 810, 823 (1975), rather than Commonwealth v. Chappell, 473 Mass. 191, 206 (2015), also is unlikely to recur, though we note that at any new trial in this case, the jury should be instructed on the consequences of a not guilty by reason of lack of criminal responsibility verdict in accordance with Chappell.

6.   To the extent that the defendant raises an argument that the rebuttal witness's identification of a photograph of the defendant was improper, and to the extent that admitting the identification was improper, we note that there was no prejudice, as the defendant's identity was not an issue at trial.