Commonwealth v. Mulgrave

• Citation: 33 N.E.3d 440,472 Mass. 170
• Decision Date: 13 July 2015
• Docket Number: SJC–11569.
• Parties: COMMONWEALTH v. Craig MULGRAVE.
• Court: United States State Supreme Judicial Court of Massachusetts

472 Mass. 170
33 N.E.3d 440

COMMONWEALTH
v.
Craig MULGRAVE.

SJC–11569.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 6, 2015.
Decided July 13, 2015.

33 N.E.3d 442

Robert S. Sinsheimer (Lisa Parlagreco with him) for the defendant.

David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, BOTSFORD, LENK, & HINES, JJ.

Opinion

33 N.E.3d 443

HINES, J.

In March, 2012, a Superior Court jury convicted the defendant, Craig Mulgrave, of murder in the first degree on the theory of extreme atrocity or cruelty in the stabbing death of his wife, Christina Mulgrave.¹ On appeal the defendant asserts that the judge erred in certain evidentiary rulings that violated his right to due process under the United States Constitution and the Massachusetts Declaration of Rights: (1) admitting in evidence as an excited utterance a cellular telephone text message sent by the victim; (2) granting the Commonwealth leave to present general evidence that the defendant made statements, which previously were suppressed, to impeach proffered evidence that he was noncommunicative; and (3) excluding the proffered testimony of a defense expert witness. The defendant also argues error in the jury instructions on diminished capacity. We discern no error in the judge's evidentiary rulings or instructions to the jury. We decline to exercise our authority pursuant to G.L. c. 278, § 33E, and affirm the defendant's convictions.

1. Background. a. The Commonwealth's case. The jury could have found the following facts. The defendant and the victim were married in Jamaica in July, 2008. The two had met while the victim was on vacation in Jamaica, where the defendant had lived. In October, 2009, the defendant obtained a visa and moved to Las Vegas, Nevada, to join the victim. The couple moved to Haverhill one or two months later, where they would be closer to the victim's two children and her sister.

The victim's sister and son testified that the defendant was depressed and frustrated that he was unable to find employment. In February, 2010, the victim told her sister that there were problems in the marriage and that she had asked the defendant to go back to Jamaica, but he would not leave. Two letters were read in evidence, one from the victim to the defendant and the other his response. The victim's letter expressed her difficulties with the marriage and asked the defendant either to make the marriage work or to separate. The defendant responded by also expressing

his unhappiness in the marriage and telling her he felt “unhappy, depressed, without a job, unemployed, dependent on [her] for everything.” The defendant expressed his love for her and said that he wanted to “make this right.”

On February 7, 2010, the day of the National Football League's Super Bowl, the couple hosted the victim's family for dinner at their apartment. The victim's son, Evan McCain, testified that the defendant left the house during the party and went out walking “all day.” The next evening, the victim came home to find the defendant unconscious and lying on the floor with a string tied into a noose around his neck, a knife tucked into the waistband of his pants, and a bottle of alcohol nearby. The victim, a nurse, took a photograph of the defendant but did not call for medical care. She sent Evan a text message, which prompted him to come over about ten minutes later. The victim and Evan stood over the defendant talking for about ten minutes, during which time the defendant never responded or acknowledged their presence. Evan testified that the defendant “drank a bunch of liquor” that evening. He left the defendant a handwritten note expressing his disapproval.

The following day, on February 9, the victim had an interview at Lowell General Hospital and, thereafter, went to her sister's house. During this visit, the victim

33 N.E.3d 444

told her sister about the incident the prior evening. The sister asked the victim to stay at the sister's home that evening. The victim, however, “was adamant about going home to handle her business” and left at about 1 p.m. for the forty-minute drive to her home. Two hours later, at 3:03 p.m. , the victim sent a text message to Evan stating, “He is threatening to kill me I am scared he said if I pick up the phone he will kill me.” Six minutes after that, at 3:09 p.m. , she telephoned 911 and frantically reported that her husband was stabbing her.

A sergeant with the Haverhill police department arrived at the couple's apartment within two minutes of the 911 call. As the sergeant entered the walkway to the apartment building, he heard a female screaming from one of the upstairs apartments. He ran up the stairs and entered the apartment on the left side of the hallway. A few seconds later, a man came out of the apartment on the right side of the hallway. The sergeant asked him if he heard anything, and the man, later identified as the defendant, responded, “It's in here. I just killed my wife.”

The defendant was standing at the door to the apartment he shared with the victim; he was covered in blood and holding a

knife. The defendant complied with the sergeant's requests to drop the knife and get down on the floor. After the defendant was handcuffed, the sergeant asked him, “Where is she?,” and he motioned toward the office in the front of the apartment.

Inside the office, the victim was lying on her left side on the floor in a pool of blood. Emergency medical technicians (EMTs) arrived and found the victim with a weak pulse and barely breathing. The first attempt to ventilate the victim was unsuccessful because air from a breathing tube placed through the victim's mouth escaped from a stab wound in her neck. A second tube was inserted directly into the stab wound and down into the lungs. As the EMTs continued to render aid to the victim, they transported her to Merrimack Hospital, where she was pronounced dead shortly after arrival.

An autopsy revealed twelve stab wounds, twelve incise wounds, and miscellaneous blunt force injuries. Of the stab wounds, nine were to her torso, one to her left arm, one to her right arm, and one to her right shin. Three of the stab wounds penetrated her lungs, two penetrated her liver, and a stab wound in her neck penetrated her trachea. The medical examiner who performed the autopsy testified that the specific cause of death was blood loss and puncture injuries to the lung and trachea, which inhibited the body's ability to oxygenate. The crime scene analyst who inspected the apartment testified that the location of the blood inside the office demonstrated that the victim was upright when some of the stab wounds were inflicted and was lying down or very low to the ground when other stab wounds were inflicted. The knife that the defendant was holding when the sergeant arrived had the victim's blood on it and the defendant's fingerprint on the handle.

The defendant was arrested at the scene and taken to the Haverhill police station. He was wearing the same clothes as during the incident the prior evening and the string was still tied around his neck as a noose. The patrolman who transported the defendant testified that the defendant had no alcohol odor, no difficulty walking, and no difficulty getting into or out of the cruiser. A bottle of rum, approximately two-thirds full, and several prescription medication bottles containing pills were seized from the apartment after the stabbing.

33 N.E.3d 445

b. The defendant's case. The defendant conceded guilt as to murder in the second degree but argued that depression rendered him incapable of the elevated mental state required for murder in

the first degree. He introduced the testimony of three mental health experts and his cousin. The experts all had experience working with depression and explained the various stressors that could worsen depression symptoms. Specifically, the experts noted that unemployment, cultural transition, and breakdown of a marriage can intensify depression. The defendant's cousin testified that she talked to him about once a week while he was in Las Vegas, but hardly at all once he was in Massachusetts. She stated that it was a big opportunity for the defendant to go to the United States and that he would have looked like a failure if he had returned to Jamaica.

The defendant's first expert, Ronald P. Winfield, a psychiatrist, did not interview the defendant but explained that depression is an imbalance in brain chemicals that can cause unusual brain function, especially when triggered by stressors. Two additional experts interviewed the defendant multiple times and diagnosed him with a major depressive disorder at the time of the stabbing. Both experts, Robert H. Joss, a forensic psychologist, and Elizabeth Davis, a psychiatrist, opined that the defendant lacked the capacity to deliberately premeditate or to act with extreme atrocity or cruelty because of his depression.

Doctors Joss and Davis reviewed the defendant's medical records from before the stabbing, which showed that the defendant was diagnosed on December 22, 2009, with depression with anxiety, and was prescribed Celexa, an...