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. 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
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 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
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.
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 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 antidepressant. The record of the appointment references tearfulness, suicidal ideation, and anxiety on the part of the defendant. Based on the number of pills remaining in the Celexa bottle found in the apartment, the defendant was not taking this medication as directed, rendering the drug ineffective in ameliorating his symptoms. During his interviews of the defendant, Dr. Joss observed that the defendant appeared depressed, weary, and without much energy. Doctor Joss opined that the defendant was not faking depression because his prearrest medical records were consistent with his symptoms after the stabbing.
Doctors Joss and Davis testified that they would have considered immediate psychiatric hospitalization of the defendant if they had found him in the state he was in the evening before the stabbing. The defendant told the experts that, on the night before the stabbing, he consumed an excessive amount of alcohol and ingested pills.
c. The Commonwealth's expert. In rebuttal, the Commonwealth called Martin Kelly, a psychiatrist who evaluated the defendant and reviewed medical records, including the reports from Drs. Joss and Davis. Doctor Kelly opined that the defendant did not suffer from any mental defect or disease at the time of the stabbing; instead, he had situational or reactive depression. He described situational or reactive depression as a psychological condition, not a mental disease. He further explained that this condition is time limited and occurs after some sort of loss, such as a breakup of a relationship, unemployment, or cultural adjustment.
d. Excluded evidence. Prior to trial, a motion judge granted the defendant's motion to suppress statements made to police shortly after booking. The motion judge concluded that the statements were made in violation of the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. At trial, however, the defendant sought to introduce evidence, through cross-examination of a police officer, that he was silent and noncommunicative during booking as a factor demonstrating diminished capacity. The Commonwealth argued that such testimony would open the door to allow the suppressed statements to be admitted. The trial judge noted that the purpose of the rebuttal would be to show the defendant's capacity to answer questions, not the content or truth of the statements, and indicated that he would be inclined, if the defendant elicited such testimony, to allow the Commonwealth to introduce evidence about the number of questions asked and the defendant's manner and demeanor in answering the questions. The fact that the statements were made, but not the content of the statements, would be admitted. The defendant declined to introduce the evidence in light of that ruling.
The defendant also sought to introduce the testimony of a fourth medical expert, William Alan Stuart, an emergency medicine physician. The defendant intended to have Dr. Stuart testify to the effects of combining Celexa and alcohol and that the defendant's actions the night before the stabbing constituted a suicide attempt. Further, this proposed testimony would have included the witness's opinion that he too would have commenced an involuntary commitment if he had been aware of the events occurring the evening before the stabbing.
2. Discussion. a. Evidentiary issues. i. Text message. The defendant argues that the judge erred in admitting the content of the text message sent by the victim to her son approximately six minutes before she telephoned 911. The judge reasoned that the written statement, although hearsay, was admissible under the spontaneous utterance exception to the hearsay rule. Mass. G. Evid. § 803(2) (2015). The defendant objected to the admission of the text message, so we review for prejudicial error. Commonwealth v. Sleeper, 435 Mass. 581, 590 (2002).
Under our rules, admissibility under the spontaneous utterance exception requires that (1) "there is an occurrence or event `sufficiently startling to render inoperative the normal reflective thought processes of the observer'"; and (2) the statement was "a spontaneous reaction to the occurrence or event and not the result of reflective thought." Commonwealth v. Irene, 462 Mass. 600, 606-607, cert. denied, 133 S.Ct. 487 (2012), quoting Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). The defendant argues that the text message sent by the victim fails to meet either requirement for admissibility.
While Massachusetts appellate courts have yet to approve admission of text messages or any other writing under the spontaneous utterance exception to the hearsay rule, this exception does
The first requirement, that there be an exciting event giving rise to the exception, is clearly satisfied by the statement itself, the 911 telephone call, and the victim's condition approximately ten minutes later.
In determining the second element of spontaneity, we consider the circumstances of the statement, including the temporal relation between the event and the statement, and the tone and manner of the declarant. Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562 U.S. 874 (2010); Santiago, 437 Mass. at 623, 625; DiMonte, 427 Mass. at 239. Because the statement at issue here is
Here, the circumstances of the statement, although in the form of a cellular telephone text message, are entirely consistent with spontaneity. As described above, the victim telephoned 911 to report that the defendant was stabbing her six minutes after the text message to her son reporting that the defendant was "threatening to kill" her. This sequence of events closely resembles a scenario mentioned in DiMonte, 427 Mass. at 239, where we observed that a writing may be admissible "when a victim is held hostage and is unable to communicate in any way other than writing or when a person's vocalization is impaired" (footnote omitted).
The circumstances under which the text message was sent adequately compensate for the limitations inherent in a writing and meet the spontaneity test. Cellular telephone text messages are a unique form of written communications in that they allow for instant communication in much the same way as oral communications. The cellular technology that allows for the sending and receiving of a text message instantly, often as a substitute for oral expression, diminishes the concern about spontaneity that might arise with other more deliberative modes of written communication. Further, the growth of cellular telephones has made text messaging and other types of written electronic statements ubiquitous forms of rapid communication.
Although the temporal relation requires no definite and fixed limit of time for spontaneity, "the further the statement from the event, the more difficult it becomes to determine whether the statement is the result of reflection, influenced by other factors." DiMonte, 427 Mass. at 239, citing Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973). The rationale behind the temporal relation is that statements made before the declarant has time to "contrive and misrepresent" would be admitted, while others made after the "exciting influence [has lost] its sway" would be inadmissible. McLaughlin, supra, quoting 6 J. Wigmore, Evidence § 1750 (3d ed. 1940). In this case, the statement occurred within a reasonable temporal proximity to the exciting event because the victim's subsequent 911 telephone call and death shortly thereafter demonstrate that the event was in progress when she sent the text message.
Likewise, the tone and manner of the declarant, as evidenced by the writing itself, supports a determination that this statement was spontaneous, and thus reliable. See Simon, 456 Mass. at 296. The message was one sentence without any punctuation. The message related only to the circumstances of the threat to the victim's safety and her reaction (fear) to that threat. In contrast, the facsimile transmission in DiMonte, 427 Mass. at 234 n.4, which we said was not spontaneous, was much longer and related to arrangements for an upcoming concert at which the victim was to sing in addition to the prior assault.
For all the reasons explained above, we are persuaded that the circumstances of the statement, the tone and manner of the statement and its timing, establish the second requirement of the spontaneous utterance exception to the hearsay rule. The judge's
Last, statements admissible as spontaneous utterances must also satisfy the confrontation clause of the Sixth Amendment to the United States Constitution. See Irene, 462 Mass. at 609. "The confrontation clause bars the admission of testimonial out-of-court statements by a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had an earlier opportunity for cross-examination." Id. at 617, citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004). "Whether a particular statement is `testimonial' lies at the core of this analysis." Irene, supra, citing Davis v. Washington, 547 U.S. 813, 823-824 (2006). The defendant asserts that the statement was testimonial in fact because the victim did not ask for help or describe an earlier event and that she instead intended to establish the identity of her potential perpetrator. We disagree with the defendant's characterization of the statement.
"A statement is testimonial in fact if `a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.'"
ii. Availability of suppressed statement for impeachment. The defendant argues that the judge erred in ruling that the Commonwealth would be permitted to rebut evidence of the defendant's mental capacity insofar as it rested on the claim that he was noncommunicative during booking and during his receipt of Miranda and telephone rights. Although the judge explicitly ordered that the content of the statements would not be admitted, he
Both of these arguments are unavailing. The trial judge, after reviewing the transcript from the hearing on the motion to suppress and the video recording of the interrogation, concluded that the defendant's statements were voluntary because the defendant did not appear to be under the influence of drugs or alcohol, reported that he physically felt good, was tuned into subtleties, and responded to the police officer directly on the issues.
The defendant's argument fails for the additional reason that the judge precluded the admission of the content of the statements. The judge ruled that only evidence of the defendant's ability to communicate would be admitted and only for the purpose of impeaching the defendant's claim that he was noncommunicative in the aftermath of the killing. Evidence of the defendant's ability to answer questions, offered only to rebut evidence of the defendant's noncommunicability, is not barred by the Fifth or Fourteenth Amendment to the United States Constitution, or by art. 12.
The defendant next argues that this ability to communicate, as established by the existence of (the subsequently suppressed) statements to the police, was not admissible to impeach his expert
iii. Exclusion of expert witness testimony. The defendant argues that the judge violated his right to present a defense and call witnesses under the Sixth Amendment and under art. 12 by excluding the testimony of Dr. Stuart, whose testimony would review the effects of combining Celexa and alcohol and was proffered to show that the defendant's conduct the night before the stabbing was a legitimate suicide attempt. The judge excluded the testimony as cumulative, of limited relevancy, and unduly prejudicial, and because it could confuse the jury as to the relevant time frame in which to consider the defendant's mental state. "[A] trial judge has the discretion to control the scope of the examination of witnesses ... and can exclude witnesses whose testimony is cumulative, repetitive, or confusing." Commonwealth v. Boyarsky, 452 Mass. 700, 711 (2008), quoting Commonwealth v. Carroll,
Although Dr. Stuart was to be the only expert testifying about the effects of Celexa and alcohol in combination, there was no evidence about the quantity of alcohol or drugs ingested at or near the time of the stabbing.
b. Diminished capacity instruction. The defendant argues that the judge committed reversible error by failing to instruct the jury that they could consider evidence of diminished capacity as it related to the defendant's ability to act with extreme atrocity or cruelty, as required by Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011). Instead of giving the form of instruction approved in Commonwealth v. Gould, 380 Mass. 672, 686 n.16 (1980), as proposed by defense counsel, the judge gave the model jury instruction. See Model Jury Instructions on Homicide 61-62 (1999). The defendant's argument is unavailing because the judge instructed the jury in accordance with Rutkowski, supra.
c. Review under G. L. c. 278, § 33E. We have reviewed the entire record and see no reason to exercise our power under G. L. c. 278, § 33E, to reduce the degree of guilt as requested by the defendant or to grant other relief.
Judgment affirmed.