Commonwealth v. Berry

Citation2 N.E.3d 177,466 Mass. 763
Decision Date09 January 2014
Docket NumberSJC–11190.
PartiesCOMMONWEALTH v. Sheila BERRY.
CourtUnited States State Supreme Judicial Court of Massachusetts

466 Mass. 763
2 N.E.3d 177

COMMONWEALTH
v.
Sheila BERRY.

SJC–11190.

Supreme Judicial Court of Massachusetts,
Plymouth.

Argued Sept. 10, 2013.
Decided Jan. 9, 2014.


[2 N.E.3d 178]


Kevin S. Nixon for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.


Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

BOTSFORD, J.

In March of 2006, a jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty.1 See Commonwealth v. Berry, 457 Mass. 602, 931 N.E.2d 972 (2010). This court reversed the defendant's conviction because of an error in the jury instructions on lack of criminal responsibility, and we remanded the case for a new trial. Id. at 615–618, 931 N.E.2d 972. The defendant was tried again in October, 2011, and again was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. Before us is the defendant's appeal from that conviction. The defendant argues that the trial judge erred in refusing to strike an expert's testimony that the defendant was criminally responsible; she argues also that in the circumstances of this case, pursuant to G.L. c. 278, § 33E, we should reduce the degree of guilt or order a new trial. For the

[2 N.E.3d 179]

reasons set forth below, in the exercise of our responsibility under § 33E, we conclude that the interests of justice require a reduction of the degree of guilt to murder in the second degree.

Background. The evidence presented in the defendant's second trial was substantially similar to the evidence in the first, and it is summarized in Commonwealth v. Berry, 457 Mass. at 603–605, 931 N.E.2d 972.2 A major focus of both trials was on the defendant's mental state at the time of the crime; her defense was lack of criminal responsibility. We summarize here the basic outline of the events leading up to and including the death of the victim, and reserve additional facts for later discussion in connection with our consideration of the entire case under § 33E.

1. The homicide. On the night of August 14, 2002, after having dinner with a friend during which she drank two or three glasses of rum, the defendant went to a neighborhood market. An altercation arose between the defendant and a man outside the store, during which he spit on her and punched her in the face, making her furious. The defendant entered the store, swearing and muttering to herself; she grabbed two large beer bottles from the store, went outside, and threw the bottles at the man. She missed but did not stop yelling and screaming. Admilson Goncalves, the victim, arrived at the market on a bicycle. He and the defendant knew each other from the neighborhood, and he tried to calm her. The effort failed; the defendant jumped on the victim's bicycle and rode on it to the home of her friend Deanna Marshall. The victim arrived at the house, seeking to retrieve his bicycle. When Marshall came out of the house, she saw the victim restraining the defendant, holding her against the side of the house; the victim said that the defendant had been hitting him. The defendant was extremely agitated and out of control. Despite agreeing with Marshall to go behind the house to calm herself, the defendant continued to be agitated and angry. She returned to the front of the house carrying a cinder block, walked to the victim, and struck him repeatedly over the back of the head until the cinder block crumbled into pieces. The victim died as a result of severe head injuries.

2. History of the defendant's mental illness. The defendant has a long history of mental illness. In 1989, at the age of fourteen, she fell off the roof of a car and hit her head. She was in a coma for some time and also suffered a skull fracture, with damage to the frontal lobe of her brain. After this head injury, there was a marked change in the defendant's “school functioning” and behavior, consistent with mood and personality changes associated with frontal lobe damage. The defendant became aggressive and disinhibited, and she began to show signs of mental illness. She left school in the ninth grade.

In 1994, the defendant was diagnosed with bipolar disorder with psychotic features.3 Frequent psychiatric hospitalizations followed in which the defendant's behavior was “extremely agitated, aggressive, [and] out of control.” She was hospitalized on account of her mental illness several times between 1994 and 1998, despite

[2 N.E.3d 180]

the fact that she remained on prescribed medication for that entire period. The defendant also suffered from auditory hallucinations and chronic delusions. She believed that she had been raped and “run over,” that Osama Bin Laden had been visiting her since she was eight years old, and that she was the “Bionic Woman.” The defendant dove out of a plexiglass window during a 1994 admission to McLean Hospital, a psychiatric facility, thinking that she could fly.

In 1995, a small cyst or tumor was found on the defendant's cerebellum, a part of the brain that “takes the edge off” and works as a “homeostasis mechanism.” By 1999, the tumor had doubled in size and become “space-occupying,” meaning that it was exerting pressure on the surrounding area. Hospital records spanning from 1990 to 2003 indicated that the defendant's levels of rage and agitation became gradually “worse and worse,” which, in the view of at least one of the expert witnesses,4 was consistent with the tumor growing and contributed to the defendant's level of aggression.5 Both experts based their opinions on recent scientific research indicating that a midline tumor on the vernix, where the defendant's was located, was most apt to cause problems with behavior, behavioral discontrol, disinhibition, and aggression.6

Very soon after the defendant's arrest in August of 2002, she was committed to Taunton State Hospital (Taunton), where she remained until October, 2003. The defendant was evaluated at Taunton for competency to stand trial and found incompetent two times, in September or October, 2002, and March, 2003. When the defendant arrived at Taunton, she acted “absolutely wild at times and unmanageable”; records indicated that she would be calm one minute and totally enraged the next with little or no provocation. The defendant had to be put in four-point restraints twice while at Taunton because she was unable to control her behavior.

In March of 2003, the defendant also was found incompetent to make decisions with regard to her need for psychiatric medication, and a court order was obtained to require, with force if necessary, administration of antipsychotic and mood-stabilizing medication. After a period of being on the medication, she began to have fewer verbal outbursts, but she still suffered from psychosis. In April of 2003, the defendant's cerebellar tumor was removed surgically. Thereafter, the defendant displayed a “tremendous improvement,” an almost immediate “drastic change in her anxiety level,” and “a greater degree of emotional control.” According to Dr. Bernice Kelly, one of the

[2 N.E.3d 181]

defendant's expert witnesses (see note 4, supra ), the defendant's Taunton medical records indicated that the defendant became more submissive and docile, and her tendency to become enraged with little or no provocation “just went away.”

Discussion. 1. Testimony of Dr. Michael Murphy. The defendant argues that the trial judge erred in declining to strike at least a portion of the testimony of Dr. Michael Murphy, a forensic psychologist who had worked at Taunton during the time the defendant was admitted there and who was called by the Commonwealth as a rebuttal witness to testify about the defendant's mental state. Murphy had interviewed the defendant nine times in the year following her admission to Taunton, and he had performed the defendant's competency evaluations, twice finding her incompetent to stand trial.7 On direct examination at trial, Murphy testified to his opinion that while the defendant suffered from a major mental illness, schizoaffective disorder, she nevertheless was criminally responsible in that she could appreciate the wrongfulness of her conduct and conform her behavior to the requirements of the law. See Commonwealth v. Berry, 457 Mass. at 612, 931 N.E.2d 972. On cross-examination, in direct response to a question by defense counsel, Murphy stated:

“It is my opinion that to the degree that [the defendant's] capacity to inhibit her behavior may have been affected by the taking in of large amounts of alcohol, and she is determined to be responsible for that behavior, that is, it was voluntary behavior on her part, then any diminishment of her capacity, as is often the case with individuals who engage in criminal behavior while under the influence of substances, would be thought to be behavior for which, in my opinion, she is criminally responsible.”
Following this response, the defendant moved to strike Murphy's entire testimony on the ground that Murphy had misstated the law.
The judge declined to do so, concluding that while it could be said that Murphy's opinion did not appear to reflect the law accurately, this went to the weight of the opinion, not its admissibility.

On appeal, the defendant argues that the judge committed reversible error in refusing to strike this response by Murphy because his incorrect statement of the governing law was irrelevant and unfairly prejudicial. More specifically, the defendant argues that she suffered prejudice as a consequence of Murphy's misstatement of the law as set out in Commonwealth v. DiPadova, 460 Mass. 424, 432, 951 N.E.2d 891 (2011).8

In DiPadova, this court explained that where a defendant suffers from a mental illness that, by itself, causes her to lack the substantial capacity to appreciate the wrongfulness of her acts or to conform her conduct to the law, any voluntary consumption of alcohol or drugs by the defendant does not defeat a defense of lack of criminal responsibility,...

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