mental impairment defense in Massachusetts

2023The trial judge declined to give the instruction, explaining that there was insufficient evidence of mental impairment and that he "[did not] view mental impairment to be a live issue in this case." "[W]here evidence of the defendant's mental impairment is significant and where it is a critical aspect of [the defendant's] defense, the failure to instruct the jury that they could consider evidence of that impairment" is error. 21 Commonwealth v. Rutkowski, 459 Mass. 794, 799 (2011).26 To be entitled to a mental impairment instruction, "a defendant must, at a minimum, introduce evidence that suc

2014In relation to extreme atrocity or cruelty, the judge’s mental impairment instruction, which focused solely on intent and knowledge, missed the mark: “Intent and knowledge are not aspects of extreme atrocity or cruelty.” Rutkowski, 459 Mass. at 797-798 . 33 Rather, as was true in that case, “[i]t should have been made clear to the jury that they could consider evidence of mental impairment on the specific question whether the murder was committed with extreme atrocity or cruelty.” Id. at 798 .

2023Compare Commonwealth v. Doughty, 491 Mass. 788 , 800 (2023) (no mental impairment instruction 26Evidence of a defendant's mental impairment "bears on the specific intent required for murder in the first degree based on deliberate premeditation," Commonwealth v. Gould, 380 Mass. 672, 682 (1980), and also on the defendant's "ability to make a decision in a normal manner," relevant to "whether the murder was committed with extreme atrocity or cruelty," id. at 685-686 . 27In connection with his consideration of the requested instruction, the trial judge mentioned the failure of the defendant to of

2023Compare Commonwealth v. Doughty, 491 Mass. 788 , 800 (2023) (no mental impairment instruction 26Evidence of a defendant's mental impairment "bears on the specific intent required for murder in the first degree based on deliberate premeditation," Commonwealth v. Gould, 380 Mass. 672, 682 (1980), and also on the defendant's "ability to make a decision in a normal manner," relevant to "whether the murder was committed with extreme atrocity or cruelty," id. at 685-686 . 27In connection with his consideration of the requested instruction, the trial judge mentioned the failure of the defendant to of

2025While the heat of passion defense was not inherently inconsistent with the mental impairment defense, we have recognized that "[c]ounsel is not required to raise every conceivable defense," Commonwealth v. Montez, 450 Mass. 736, 759 (2008), and, in particular, is not required to "rid[e] 'two horses'" and pursue a defense posing "extreme difficulty," where the defendant has a "viable alternative defense," Commonwealth v. Kolenovic, 471 Mass. 664, 675-676 (2015), S.C., 478 Mass. 189 (2017).

2025While the heat of passion defense was not inherently inconsistent with the mental impairment defense, we have recognized that "[c]ounsel is not required to raise every conceivable defense," Commonwealth v. Montez, 450 Mass. 736, 759 (2008), and, in particular, is not required to "rid[e] 'two horses'" and pursue a defense posing "extreme difficulty," where the defendant has a "viable alternative defense," Commonwealth v. Kolenovic, 471 Mass. 664, 675-676 (2015), S.C., 478 Mass. 189 (2017).

2005To address this issue, it is useful to illuminate the difference between the criminal responsibility test we adopted in Commonwealth v. McHoul, 352 Mass. 544, 548-555 (1967), and the mental impairment doctrine set forth in Commonwealth v. Gould, 380 Mass. 672, 680-683 (1980).

2005“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Commonwealth v. McHoul, supra. See infra. On the other hand, the mental impairment defense allows a defendant to argue that an abnormal mental condition negates his capacity to form a specific intent or his ability to make a decision in a normal manner.

2025See Commonwealth v. Grey, 399 Mass. 469 , 470 n.2 (1987).

2025See Commonwealth v. Dinkins, 440 Mass. 715, 722 (2004) ("In deciding what to highlight during closing argument, counsel inevitably [has] to make strategic choices with regard to emphasis and importance . . .").

2025See Commonwealth v. Denis, 442 Mass. 617 , 627 n.7 (2004). b.

2025While the heat of passion defense was not inherently inconsistent with the mental impairment defense, we have recognized that "[c]ounsel is not required to raise every conceivable defense," Commonwealth v. Montez, 450 Mass. 736, 759 (2008), and, in particular, is not required to "rid[e] 'two horses'" and pursue a defense posing "extreme difficulty," where the defendant has a "viable alternative defense," Commonwealth v. Kolenovic, 471 Mass. 664, 675-676 (2015), S.C., 478 Mass. 189 (2017).

2025While the heat of passion defense was not inherently inconsistent with the mental impairment defense, we have recognized that "[c]ounsel is not required to raise every conceivable defense," Commonwealth v. Montez, 450 Mass. 736, 759 (2008), and, in particular, is not required to "rid[e] 'two horses'" and pursue a defense posing "extreme difficulty," where the defendant has a "viable alternative defense," Commonwealth v. Kolenovic, 471 Mass. 664, 675-676 (2015), S.C., 478 Mass. 189 (2017).

2024Accordingly, with respect to armed robbery, a defendant may present evidence of a mental impairment to challenge the prosecution's proof of the required specific "intent to steal." Tevenal, supra at 228-229 & n.2.

2024See Commonwealth v. Tevenal, 401 Mass. 225 , 228–229 (1987).

2024Brown's testimony that the defendant suffered from PTSD at the time he shot the victim provided a basis for the mental impairment 23In his brief, the defendant fails to quote the portion of the instruction instructing the jury not to consider the defendant's mental impairment "in determining whether a reasonable person in those circumstances would have believed he was in immediate danger." Model Jury Instructions on Homicide 29. 27 instruction.24 See Armstrong, supra at 352-353, quoting Commonwealth v. Santiago (No. 2), 485 Mass. 416 , 426-427 (2020) ("To be entitled to a mental impairment ins

2023This clarification, designed to prevent a jury from finding "extreme atrocity or cruelty based only on the degree of a victim's suffering," rather than in reference to the "extreme nature of the defendant's conduct," id. at 865, does not change our historical analysis of the purpose and need for the mental impairment instruction for extreme atrocity or cruelty -- to serve as the conscience of the community, as explained supra. 27 explained that the language of the model jury instructions was "consistent" with Cunneen and its clarification of Gould: "[W]hile reduced mental capacity is relevant

2023Compare Commonwealth v. Doughty, 491 Mass. 788 , 800 (2023) (no mental impairment instruction 26Evidence of a defendant's mental impairment "bears on the specific intent required for murder in the first degree based on deliberate premeditation," Commonwealth v. Gould, 380 Mass. 672, 682 (1980), and also on the defendant's "ability to make a decision in a normal manner," relevant to "whether the murder was committed with extreme atrocity or cruelty," id. at 685-686 . 27In connection with his consideration of the requested instruction, the trial judge mentioned the failure of the defendant to of

2017In analyzing defense *814 counsel’s presentation of the defense of mental impairment, we “evaluate the conduct from counsel’s perspective at the time.” Lang, 473 Mass. at 21 (Lenk, J., concurring), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).

2017In analyzing defense *814 counsel’s presentation of the defense of mental impairment, we “evaluate the conduct from counsel’s perspective at the time.” Lang, 473 Mass. at 21 (Lenk, J., concurring), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984).

2016See Commonwealth v. Sanna, 424 Mass. 92, 102 (1997).

2015Last, the defendant’s reliance on Commonwealth v. Federici, 427 Mass. 740 (1998), to advance the argument that he was entitled to make the choice whether to present a mental impairment defense and that counsel’s strategic decision not to do so constituted ineffective assistance of counsel, is misplaced. 18 In Federici, supra at 743-744 , we determined only that a defend ant’s choice to forgo an insanity defense is a constitutionally protected right.

2015Last, the defendant’s reliance on Commonwealth v. Federici, 427 Mass. 740 (1998), to advance the argument that he was entitled to make the choice whether to present a mental impairment defense and that counsel’s strategic decision not to do so constituted ineffective assistance of counsel, is misplaced. 18 In Federici, supra at 743-744 , we determined only that a defend ant’s choice to forgo an insanity defense is a constitutionally protected right.

2014“A jury could have found the defendant’s act intentional, yet not extremely atrocious or cruel, due to the defendant’s [mental impairment],... [T]hejury should reflect the community’s conscience in determining what constitutes an extremely cruel or atrocious killing.” Commonwealth v. McDermott, 393 Mass. 451, 458 (1984).

2013See Sliech-Brodeur, supra at 332, 346 (Gants, J., dissenting).

2009Contrast Commonwealth v. Roberio, 428 Mass. 278, 278-279 (1998) (trial counsel’s failure to investigate defense of lack of criminal responsibility amounted to ineffective assistance).

1998See Commonwealth v. Fitz-meyer, 414 Mass. 540, 549 (1993).