Commonwealth v. Nino Dipadova.

• Decision Date: 22 August 2011
• Docket Number: SJC–10743.
• Citation: 460 Mass. 424,951 N.E.2d 891
• Parties: COMMONWEALTHv.Nino DiPADOVA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 424

951 N.E.2d 891

COMMONWEALTH

v.Nino DiPADOVA.

SJC–10743.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 8, 2011.Decided Aug. 22, 2011.

Kevin S. Nixon, Boston, for the defendant.Bethany Stevens, Assistant District Attorney (Kevin L. Ryle, Assistant District Attorney, with her) for the Commonwealth.Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.BOTSFORD, J.

The defendant was convicted of murder in the first degree in the death of Nancy Carignan, his former landlady, on theories of deliberate premeditation and extreme atrocity or cruelty. The primary defense at trial was that the defendant lacked criminal responsibility for his actions because, at the time of the murder, he was suffering from auditory hallucinations commanding him to kill the victim. In his direct appeal, the defendant asserts that two errors at trial created a substantial likelihood of a miscarriage of justice and necessitate reversal. First, he argues that the judge instructed the jury incorrectly regarding criminal responsibility. Second, he claims that findings from the autopsy of the victim were admitted improperly through the testimony of a substitute medical examiner who did not perform the autopsy.

We agree with the defendant that the instructions regarding the interaction of the voluntary consumption of drugs and mental illness were flawed and incomplete, and created a substantial likelihood of a miscarriage of justice. We reverse the defendant's conviction and remand for a new trial on that basis.

1. Background. a. The murder. Based on the evidence at trial, the jury could have found the following. The victim was found dead in her home in Lowell on July 28, 2004.¹ She had been stabbed approximately one hundred times in the head, arms, and upper body. The victim rented rooms in her home to patients of a community mental health facility, and the defendant, who was thirty-one years old at the time, had lived there briefly in June and July, 2004. By the time of the murder in late July, he lived with his mother nearby. The defendant reportedly was friendly with the victim and there was no evidence of any animosity toward her on his part.

Police questioned the defendant several times from the evening of July 28 into the morning of July 29. After giving two written statements denying that he had seen the victim recently and making no mention of the murder, the defendant, in a manner of speaking, confessed. In a series of tape-recorded statements, he said that he had gone to the victim's home late on the night of July 26. Voices had told the defendant to get money from the victim, but the defendant just “wanted to talk to her.” The victim “refused,” and the voices told the defendant to kill her. He tried to fight the voices, but, “[i]t just didn't work.” He recalled seeing a person stabbing the victim, and acknowledged that only he and the victim were in the room at the time and that it was “my body” doing the stabbing. Afterward, as the defendant was walking to his mother's house, the voices said, “Good job.” ²

In his recorded statements and in later interviews, the defendant reported that he did not have “a consciousness” of the murder and had trouble remembering the details of the stabbing or events afterward. He claimed that, although he thought he should go to the police, he did not do so because “he thought it was not really something that happened.” In an interview with the Commonwealth's expert witness before trial, the defendant indicated that he was not sure that he had committed the murder.

b. Defendant's mental illness and substance abuse. At trial, evidence was offered by both the defense and the Commonwealth indicating that the defendant had a long history of serious mental illness. Prior to the murder, the defendant had been diagnosed with bipolar disorder with psychotic features, posttraumatic stress disorder (PTSD), and attention deficit hyperactivity disorder. He had attempted suicide numerous times as a young adult and had been hospitalized at least twenty times in the preceding decade.³ Family, friends, and local police described his erratic and disturbing behavior over the years. In particular, the defendant had reported experiencing auditory hallucinations (i.e., hearing voices) on a regular basis since the age of fifteen, and witnesses testified that he often exhibited behavior consistent with hearing voices or attributed conduct to the voices “making him do things.”

Evidence also was presented suggesting that the defendant's mental illness made him prone to violent behavior. The defendant himself informed police that the voices told him “to kill people all the time.” Witnesses also testified to past episodes where the defendant threatened violence while displaying symptoms of psychological distress. In one incident from May of 2004, two months before the murder, a police officer sent the defendant for an involuntary psychiatric evaluation because he was “acting crazy” and threatening to kill himself and his mother. The defendant later told his stepsister that voices were telling him at the time to kill his mother.

There was evidence that in the months leading up to the murder, the defendant was “becoming more depressed and more distressed” and family members were increasingly concerned about his mental state. By July of 2004, the defendant was taking numerous psychiatric medications and receiving near-daily visits through a local treatment program. A report from that program on the day of the murder indicated that he appeared “disheveled” but “coherent”; the day after the murder, the defendant was again “disheveled” and said that he “didn't feel right” and was hearing voices. However, a police officer and an acquaintance, both of whom interacted with the defendant within hours of the murder, testified that the defendant “seemed fine” and was acting “relatively normal.” The defendant told the police that the voices “come and go” but had started two weeks prior to the murder.

It was undisputed at trial that the defendant was a regular user of alcohol and drugs, including marijuana and “crack” cocaine. In addition, evidence suggested that he had used drugs shortly before the murder. The defendant's medical, psychiatric, and outpatient treatment records, admitted at trial, indicated that the defendant reported using drugs several times in the days before the stabbing. Although the evidence was conflicting as to whether he did so before or after killing the victim, both the defendant (in his statements to the police) and an acquaintance reported that the defendant had used cocaine on the night of the murder. The defendant stated that he had used crack cocaine on the night of the murder, but did not indicate clearly whether he did so before or after killing the victim. Similarly, an acquaintance testified that he had used cocaine with the defendant that night but offered conflicting testimony regarding the time when he was with the defendant. However, in one of the defendant's written statements to the police that was read into the record at trial, he stated that he had used cocaine at about 7:30 p.m. and 9:30 p.m. on the night of July 26, 2004, as well as early in the morning of July 27. Other evidence at trial suggested that the killing occurred at approximately 11:30 p.m. on July 26.

[951 N.E.2d 895 , 460 Mass. 428]

There was also evidence of an interaction between the defendant's drug use and his mental illness. His former girl friend testified that his use of cocaine would “speed up the process of him going into a form of psychosis”; she also stated, however, that he exhibited symptoms of mental instability and hearing voices even when he was not using drugs. The defendant's treatment records attributed several episodes of psychological “decompensation” and hospitalizations to drug use combined with failure to take his psychiatric medications. Those records also indicated the defendant was aware that his drug use contributed to and exacerbated the symptoms of his mental illness. In addition, the defendant told the police that the voices in his head “love when I do drugs” because it made the voices “more powerful.” ⁴

c. Evidence regarding criminal responsibility. At trial, the defendant claimed that he lacked criminal responsibility for his actions because, due to a mental disease or defect, he lacked the substantial capacity at that time both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546–547, 226 N.E.2d 556 (1967) ( McHoul ). In support of this claim, the defendant offered the expert testimony of Dr. Tali Walters, a forensic and clinical psychologist. Walters concluded that the defendant lacked criminal responsibility as a result of his bipolar disorder with psychotic features ⁵ and PTSD. She opined that at the time of the murder he experienced auditory hallucinations as a result of his bipolar disorder, and dissociation (i.e., feeling that he was watching someone else stab the victim) as a result of his PTSD. While she noted that the defendant may have exaggerated his symptoms to some degree, she concluded that his claims of hearing voices were not fabricated, and that he did hear a voice or voices telling him to stab the victim.

Walters opined that the defendant's inability to appreciate the wrongfulness of his actions at the time of the murder was evidenced by the fact that, after he stabbed the victim, the voices said he had done a “good job.” In addition, his statement that he was “compelled to obey” the voices indicated to Walters that he “was unable to engage in any kind of alternative behavior” or stop his actions once he began stabbing the victim. As a result, Walters found that the defendant, at the time of the murder, met both prongs of the McHoul test.

Walters acknowledged that the defendant had a substance abuse problem, that...