Host: SJC-11589, Commonwealth v. Thomas E. TOOLAN,
the third.
-: Attorney Menken.
-: Good morning.
I'm Michelle Menken on behalf
of appellant Tom TOOLAN, Third.
May it please the court.
And this morning I intend to address
the first three arguments in appellant's brief in order.
So, the first issue in the brief concerns
the testimony of the Commonwealth's expert, Martin Kelly,
which was wrong.
The testimony that the terms mental disease or defect
were written into a statute
that determines criminal responsibility in Massachusetts
at a time when those terms
had a specific meaning in psychiatry, was wrong.
There is no criminal responsibility statute.
And contrary to the clear implication
of Dr. Kelly's phrasing,
the legal definition of mental disease or defect
is not a matter of medical or psychiatric terminology.
Even if he were correct
it's not his place to be opining on the statute
that would be usurp the judge's role
and intrude on the jury's function
to apply the facts as given to them by the judge.
I'm sorry, the law as given to them by the judge
to the facts.
So when defense counsel objected to this testimony,
three things should have happened.
The testimony should have been stricken,
the judge should have immediately interjected
an instruction to the jury
that the law comes from the judge not from a witness
and it would've been appropriate to do as defense counsel
in requested and instruct the jury in the closing charge
in supplemented the comments on mental disease or defect
to clarify the distinction between the psychiatric experts,
medical understanding of the term,
and the jury's prerogative
to find a mental disease or defect independent of that.
-: So, counsel, do you think that there's anywhere
in the testimony of the Emmy or the doctor that was correct
in terms of how he or she characterized that phrase?
-: Well,
I don't doubt his own understanding of the term as a doctor.
So he had his own definition that of applies to him
as he's making certain assessments,
but as far as the law stands right now,
I don't think that his testimony in any respect
was in line with the legal definition,
because there essentially is no legal definition
other than the jury is allowed
to look at all of the evidence of mental impairment
and make an assessment
about whether that constitutes mental disease or defect.
-: You wanna address whether
it's a substantial likelihood
of a miscarriage of justice, though.
-: Sure.
So it is in this case because whether or not,
Mr Toolan had a mental disease or defect
that would sort of qualify that was legally cognizable
and would give rise to this.
The further considerations
in the criminal responsibility test.
The jury would have to find
that he had this qualifying mental disease or defect.
So, no other expert,
no expert for the defense sort of took it upon themselves
to say what was or wasn't a mental disease or defect.
They testified to their observations,
they testified to their conclusions
as to what was going on in his brain,
but they didn't say this is or isn't
a mental disease or defect because of X, Y, Z.
They just said, he's got these,
he's got the frontal lobe damage.
He's got disorders of memory perception, thought and mood.
And by the way, I just wanna correct my sister's brief,
mentioned that the defense expert said
that there were just mild disorders
of memory, perception, thought and mood.
When in fact, what was said was that
there was frontal lobe damage,
and to a milder extent, there was also disorders
of memory, perception, thought, and mood.
So these were real things, not just mild.
He had substance use disorder, he was acting psychotically.
According to the law, according to (indistinct) clearly,
the jury could look at all of this evidence
and make its own determination
as to whether there was disqualified
for their real genuine consideration
of whether he let substantial capacity
to conform his conduct to their requirements of the law.
And to be clear, that was the only wrong
that his defense arose under.
But under Dr. Kelly's definition,
which was echoed by the judge's instructions,
exception possibly of frontal lobe damage would qualify.
And his definition would encourage the jury
to look at these diagnostic labels
and they did not need to be tied
to any of these diagnostic labels.
-: I thought the judge gave the model instructions.
-: He did.
-: He gave the model instructions and how does he
then include erroneous statements of law from Kelly
I'm confused how that happens.
-: Okay, sure.
So yes, he gave the model instructions,
but the instructions don't define mental disease or defect,
and I'm not arguing that the instructions always have to.
That is a claim that has been asserted in many cases before.
And there is a suggestion in the law
that it would aid the administration of justice.
But I am arguing that without that definition here,
where Dr. Kelly has given this other definition,
that's where the jury could be confused.
If Dr. Kelly had given this erroneous legal definition,
and then the judge had correctly instructed
on the legal definition,
then maybe the harm would've been mitigated as happened in,
I believe (indistinct) is a good example of that
and Barry is another example of that both sided in my brief.
So, and how did the judge's instruction
kind of echo Martin Kelly's testimony?
That was because in particular,
what the judge himself noted was that
there was this reference to anti-social conduct disorder
not being included.
So the only thing that the mental jury instruction says
about mental disease or defect is that
it's not anti-social conduct disorder
and it's not intoxication,
and it's a legal term and not a medical term.
So what the judge was saying to defense counsel
is like, I'm not gonna add anything.
I'm not gonna make this any clearer to the jury
than what Dr. Kelly has done,
and I'm gonna be echoing him
and bolstering his testimony 'cause Dr. Kelly said
that personality disorders and in particular,
anti-social personality disorder won't cut it.
And that's what the model jury instruction says too.
So the impression that the jury is gonna get
is that Kelly is correct.
That he is in fact reciting a real definition,
which he was not.
And so the danger and the substantial risk
of a miscarriage of justice is that
the jury is not gonna understand
that it actually was entitled to look at
these more minor disorders of memory,
the inefficient thought processes.
-: Counsel, if I could, could ask you though,
as to the substantial likelihood
of miscarriage of justice issue.
What Dr. Kelly did was clearly give his understanding
in psychiatry of the term mental disease or defect.
What the judge told the jury clearly,
following the model instructions,
is that mental disease or defect is a legal term.
So from that dichotomy, how do you get
to a substantial likelihood and miscarriage of justice?
-: Because when the first part of what you said
was that Dr. Kelly clearly said that this
was his sort of psychiatric understanding
and I disagree with that.
And I disagree with that because he actually said,
there's a statute, and this is what the terms mean
and the statute.
And then when defenses counsel objected, he said,
okay, well, here's what it means in psychiatry
and he used the exact same language.
And so without any correction, without telling the jury,
here's why defense counsel objected.
Here's what's wrong about what Kelly said,
how is the jury supposed to know that this is limited
to just the medical psychiatric?
-: Well, because the judge said
that you follow the law provided by the court
and the law provided by the court was that
mental disease or defect is a legal definition.
-: That's so two things,
one, actually, if you look at the final charge,
I actually looked for a place where the judge would,
I give you the law, follow the law that I give you,
and I didn't find it.
But also Kelly gave a legal definition.
So if the judge says,
"This is a legal term, not a psychiatric term."
And he doesn't tell the jury
what the meaning of the legal term is,
but Dr. Kelly said, "It's a legal term.
"It defined in a statute and here's what it means."
And they're never told that that's not right.
So that's how you get to a substantial risk
of a miscarriage justice,
because this is a critical factor for the main defense
and the jury was misled.
And our position with respect to that,
if there are no further questions.
I'll move on to the second issue.
So the second issue has to do with the distinction
between the lack of criminal responsibility,
instructions and the diminished capacity instructions.
And our position is that then there are really two aspects
to this argument here,
and there's a little bit of overlap
with the issue that we just discussed.
So the first issue is that the distinction
was not clearly set out in the jury instructions.
And the second aspect is that the distinction
between mental disease or defect
as required for criminal responsibility defense
and mental impairment as required
for a diminished capacity defense
also was not clearly explained to the jury.
So to the extent that the jury was misled as to
that there was a very high bar for mental disease or defect,
and didn't understand the breadth of sort of factors
that it could take into consideration.
-: Well, counsel, can I ask you a question?
What effect the defense have had on this
in terms of the defense expert witnesses
and how they testified about that issue?
-: Well, what's remarkable
about the defense witness testimony
is how very significant Mr. Toolans's intoxication was
to his behavior.
He had had copious amounts of alcohol
and sort of an unreal amount of pills.
So he was certainly his behavior was effective.
There was strong evidence that his behavior in this case
was affected by that consumption.
So-
-: Did the defense expert define mental disease or defect?
-: No, they never did.
They never did.
And I think that the testimony was simply,
what was going on in his head and the expert said,
here's what's going on in his head.
And the terminology was not used
in the way that it was in the examination-
-: He did do I think it didn't,
the witness Dr. Joseph testify
that disease or defect was the number of processes occurring
at the time that rendered him unable
to conform his behavior to the law.
-: That's correct-
-: He didn't give a definition.
-: Well, I would disagree that he gave a definition.
I think that what defense counsel asked him
and you correct me if I'm wrong,
but my recollection is the defense counsel asked him,
do you think that Mr Tooolan
had had a mental disease or defect
on what was going on with Mr. Toolan?
And he said, here are the number of processes
that were happening in Mr. Toolan's brain
and the distinction between the way that he talked about it
and the way that Dr. Kelly talked about it
is Dr. Kelly sort of said,
here's what is a mental disease or defect
it's a disease first fall,
which means that it has a biological component
and it responds to medication.
And the person doesn't necessarily know that they have it,
or have any control over whether they do or don't have it.
And I won't go on and on about it,
but he gave a sort of a definition that could apply
to any scenario whereas Dr. Joseph have said,
here are the processes that I consider to be a defect
in Toolan's mind and the question is,
would the jury think that any of that was legit,
that that was entitled to their considerations
based on the definition that has been given to them by-
-: Counsel, can I ask you on this particular issue,
what's the standard of review on this issue
because wasn't there real request for clarification
and then the judge deny that.
-: Yes, on the second issue in the brief
that the Commonwealth agrees that that is a preserved error.
-: So is the standard prejudicial error on this issue?
-: Yes, that's my understand.
-: So from that framework
wasn't there were a lot of evidence here that,
I mean, you have a lot of evidence here
that the jury was given as to what Mr. Toolan's actions
were the day before and the day of,
and directly proceed this.
So, do we have prejudicial error here
in light of all of the evidence that came in
about what Mr. Toolan did
in the days and the hours before this murder?
-: Well, I would say yes,
because part of what he did in the days before
was get sort of out of control, intoxicated
and exhibit his impairment, his suicidality,
and all of these things that could have been
considered by the jury
in a sort of diminished capacity context.
This could have led to a second degree murder conviction,
and we've seen it in other cases.
So I would say yes,
if you're asking about sort of the Commonwealth's position
that Mr. Toolan's conduct in the days
leading up to the offense
showed executive functioning, planning,
step after step and things like this,
I mean, it's a jury question.
It's a jury question whether those things
Nick established that he had full cognitive,
full enough cognitive functioning to be able to contemplate,
to premeditate form a specific intent to kill.
There was testimony from Dr. Joseph
specifically on this point,
and that's the defense expert
on criminal responsibilities specifically saying that
it wasn't necessarily so that Mr. Toolan
had a specific intent to kill
that he had taken these steps with the intent to harm her
because that's how arrest he was behaving
and thinking and psychotically.
-: Well, I know that you are saying that counsel should have,
that the requested additional clarification
by (mumbles) one dollar now.
Are you saying that the instructions did give
did not (mumbles) to what was required
to be given at that time?
-: The judge gave the model jury instructions on homicide
and our position is that in a case such as this,
they needed to be supplemented as counsel requested.
And in fact, as the judge himself flagged.
So just-
-: Thank you.
I'll just briefly touch on the third issue in the brief,
which and I'm touching on it,
because at first blush you could respond
as Commonwealth did to thinking, this is absurd
we're asking that addiction, excuse
all conduct that is undertaken
while the person is intoxicated.
And that is not actually what this is about.
This is about, and a really clear dissonance in the law.
This exception to the DiPadova defense or charge,
or the DiPadova charge saying,
you may lack criminal responsibility
if you have a mental disease or defect
that was triggered by alcohol.
So once upon a time back in she days,
if you became voluntarily intoxicated,
that meant that you were fully responsible
for everything that happened after.
And at some point, this court said,
we wanna clarify that
just because you became voluntarily intoxicated,
if that triggered a mental disease or defect,
you're still lack criminal responsibility,
but then there's this exception
you're still fully on the hook.
If you knew that becoming intoxicated
would cause you to act violently
or would trigger your mental disease or defect.
But interestingly, since Shean the court has said,
well, never one in she's thought
that you can't consider intoxication on specific intent
for example, you can,
because it's totally unjust
to have some be found fully culpable for their conduct
if they in fact were so obliterated
that they didn't know what they were doing.
And that is true,
whether or not the person who is using the alcohol
knows that using alcohol is gonna cause them to get drunk
(chuckles)
and to make poor decisions, to not be fully functioning.
It doesn't matter (chuckles).
And this is the only context
in this type of scenario where it matters,
where you are sort of strictly liable
for the consequences because you knew.
And the question that I have for this court is, why?
-: What you say the Commonwealth is overstay (mumbles)
or misinterpreting, what you're saying,
what is the limiting principle for what you're arguing?
How will this not be a get outta jail free guard?
Explain that to us.
-: So in the short time that I have it,
that answer is because in this unique context,
liability is flow from the choice to use substances,
not from what you do once you're intoxicated.
So this is a person who is not criminally responsible,
they meet both prompts of the cool test, or I'm sorry,
they need at least one prompt,
they satisfy the cool test
they would be found not criminally responsible.
But they are still on the hook
because they made this choice to get drunk.
And our position is that
when liability is flowing from that,
and not from the conduct itself,
that adjust for example, same with the probation violation,
or I've given you a few other examples in the brief
about sort of loss of veterans benefits.
But when the question,
when liability is flowing from your decision to use,
it is only fair to allow the fact finder
to consider whether that was a willful choice.
And there's no other circumstance,
this is not in any other circumstance
where somebody is saying,
first of all, intoxication is mitigating
in every other circumstance,
at this point in this day and age.
But so at the example,
I gave him my brief as somebody who says,
"Well, I robbed the bank," this wasn't my brief,
but here's an example.
"I robbed a bank because I needed the money
"to feed my cocaine habit because I am addicted."
So addiction is not an excuse there
because what you have done is,
we have the law has said that,
being intoxicated in addiction
is not a mental disease and defect that you can claim,
I had a lack of criminal responsibility for that behavior.
So the only issue is whether you are,
the addiction doesn't excuse it,
you're a on the hook because you robbed a bank
and you are criminally responsible.
In my situation, the person is not criminally responsible,
but they are being held criminally responsible
because they should have known that this would happen.
Whereas in,
when alcohol is considered as mitigating knowledge,
intent, deliberate premeditation,
that does not turn on whether the person knew
that getting drunk would cause them
to make these poor decisions or,
I don't know if I've made that answer clear enough,
but I know I'm over my time.
-: Okay, thank you.
Attorney Sweeney.
-: Good afternoon, may it please the court.
Elizabeth Sweeney on behalf the Commonwealth.
Addressing the first argument,
Dr. Kelly's brief comment regarding his understanding
of the term mental disease or defect
as a psychiatrist referring briefly
to a criminal responsibility statute.
And opining on where that statute's from does not result
in a substantial likelihood of a miscarriage to justice.
Dr. Kelly's brief comment, which was objected to,
and then the Judge Nickerson redirected the witness
and the prosecutor ask a different question,
did not blur the distinction
between criminal and legal concepts.
And in this case,
the jury was properly instructed
under the model jury instructions,
defense counsel stated that he was happy
with the model charge on volume seven page 1295.
And the jury heard that the phrase mental disease
or defect is not,
it is a legal term, it is not a medical term,
and it does not need to fit in a formal medical diagnosis.
And the phrase, mental disease or defect
does not include an abnormality manifested
by repeated criminal or antisocial conduct.
And then the judge said,
consistent with the model charge
that it's for the jury to determine
in light of all the evidence,
whether the defendant had a mental disease or defect.
So based on those jury instructions
consistent with model charge,
defense counsel's, trial counsel's statement
that he was happy with the model charge.
And the fact that this issue was address on the record,
I state that there is no substantial likelihood
of miscarriage justice.
The jury was well instructed,
they heard from four different experts
on mental disease or defect,
alcoholism, substance abuse, frontal lobe damage.
And also Dr. Joseph, the defendant's expert
did state that in his opinion
the defendant suffered from a mental disease or defect
and gave reasons as to why he supported that statement.
So in light of the litany of evidence on this subject,
and the very brief comment by Dr. Kelly
and the fact that Judge Nickerson immediately addressed it
and directed the prosecutor, ask a separate question.
I state that there is no substantial likelihood
of miscarriage justice.
Addressing the second issue about the difference
between criminal responsibility and diminished capacity,
I also state that the judge instructed the jury
consistent with the 2013 model jury instructions.
The jury was instructed by Judge Nickerson
more than once on criminal responsibility.
And the claim that the jury
should have had heard the differences
is not appropriate.
The judge should not be explaining degrees of intoxication
or opining on separate mental illnesses
that the defendant assert that he has,
because then the judge sort of give the jury
telling them how to weigh evidence,
how to weigh evidence on criminal responsibility.
And this court is recognized in Commonwealth v. Fuller
or in Commonwealth v. Torres
that the subject of mental disease or defect
is so complex and obscure
that any general explanatory formula
is likely to mislead and confuse.
So here, the very issue at trial was criminal responsibility
to diminished capacity
and the jury heard from many experts on that.
And also the judge gave the necessary instructions
in the adequate and the appropriate words.
The judge first instructed on criminal responsibility,
which this court recognized in Commonwealth lawyer.
And then as he got into the elements of the offenses
and intent, he then said,
and don't forget about criminal responsibility.
He also said at the beginning,
when he was instruct on criminal responsibility,
that this is, the Commonwealth has to prove this
and this should be ever present.
And I would be hard pressed
to think of a more stronger instruction
than a judge saying that criminal responsibility
must be ever present in your deliberations.
And the judge should not be required
to explain the differences
between the complete defense of criminal responsibility
and then so-called diminished capacity defense.
(indistinct)
-: The judge does segue from a responsibility
to diminish capacity,
how does the jury know we're dealing (indistinct)?
-: I'm sorry (indistinct).
-: So the judge segues,
so we're moving from criminal responsibility
to the diminished capacity.
So how does the jury know we're,
it's a related, but a different concept?
How does the jury understand that?
-: So the judge explains diminished capacity
and how that relates to intent.
And then he said,
and also don't forget that the Commonwealth
needs prove beyond reasonable doubt that
the defendant was criminally responsible at the time.
So I think that in the criminal's position,
the jury heard the diminished capacity defense
and how that relates to intent.
And then he redirects them to the element
that we have to prove criminal responsibility,
which they heard at the get go.
They heard right at the beginning of the instructions,
which is consistent with the 2013
and also the 2018 model jury instructions.
So they heard that that was ever present.
And so I suggest that when he said that it was an element,
the Commonwealth needed to prove that
that was the difference.
And the difference is elusive and undefined (indistinct).
And so, I think just directing them back
that the Commonwealth needed to prove that element
is enough of a difference and opining on each.
-: And what was the supplemental instruction
that defense requested to clarify that I can't,
remind me what it was and why it's not necessary.
-: The defense didn't say specific differences
or degrees of mental illness
or where intoxication should be explained.
The Judge Nickerson said,
counsel, do you believe that the difference
between criminal responsibility and diminish capacity
is addressed and he did object,
but there wasn't any examples or frontal lobe damage
needs to be listed under this category,
or the fact that we alleged that he took pills that morning
needs to be alleged here, so...
-: Defense counsel requested
some language from a different case, right?
I can't remember what the defense counsel requested now
and the judge said, I'm not giving that, right?
-: Yes, and-
-: And what was that language, and put it in context.
-: The specific case is not coming to my mind right now,
but I do recall that the language was,
I think it was criminal fee buried,
but I'm not positive in discussing examples
in reminding the jury about the weighing the evidence
of intoxication and alcoholism.
And the judge didn't want to get
into this province of the jury
and explaining to them how to evidence
and how this is left for the jury.
And he explained, again,
that criminal responsibilities matter
that Commonwealth has to prove beyond a reasonable doubt.
So it's Commonwealth's position that sticking
to the model jury instructions
and not opining in additional evidence
when that was the main issue at trial
thoroughly vetted the issue for the jury
after all these experts, (indistinct).
-: (mumbles) the model jury instructions,
but at a point of transition,
I think you, as you've already mentioned,
he did more than that,
when he was talking about diminished capacity
as it relates to capacity to formulate intent,
he also paused for a minute to emphasize
that other issue we had talked about criminal responsibility
being ever present.
So to extent that there was a deviation
from the model instruction to his a deviation
that helped the organization of the instruction precisely
to the issue that the defendant was concerned about?
-: Yes, that's exactly the Commonwealth's position.
And I describe it in my brief,
as he wove in the criminal responsibility instruction,
he mentioned it no less than six times.
He reminded the jury at every opportunity
when they're dealing with intent
that do not forget criminal responsibility.
And he redirected them back
to the initial instruction that he gave.
And the model jury instructions
are both 2013 and 2018 do state that
if the main issue in the trial is criminal responsibility,
that instruction should be given first,
and it was given first here.
And then he ended up discussing
the elements of the offenses.
And every time he discussed intent diminished capacity,
he again, redirected them back to criminal responsibility.
So that issue was at the forefront of the jury's minds
after hearing those strong instructions
and also the four experts
that testified at this trial.
Addressing briefly the defendant's claim
that the jury should have heard,
whether addiction rendered the defendant
in capable of resisting the urge to use substances.
I just note that in 2011,
this court issued the opinion in tool
and stated that
the judge should consider Commonwealth to be DiPadova
and now the defendant challenges that
that instruction was given
the defense counsel at trial did request
the DiPadova instruction
that was given consistent with the tool and opinion
and consistent with the defendant's request.
And there is no support in the law,
and there is no support in anywhere in Massachusetts
for Judge Nickerson to go beyond that
and instruct now that
whether addiction rendered the defendant
and keep (indistinct) resisting the urge to use substances,
and it's the criminal's position as I argued my brief that
this is an issue that wasn't fully vetted at trial,
there was no motion asking for this instruction
about addiction.
There was nothing on the record asking
about this instruction.
The judge provided the defendant,
what he requested and what this court suggested
in the tool and opinion.
And I suggest that the record is not fully developed
to who address this issue.
This is a direct appeal,
there was no motion for a new trial,
there was no motion filed in the lower court
for these instructions.
And there's not enough on the record
to expand beyond the Shean decision.
And for those reasons,
I suggest that the judge properly instructed
with the DiPadova instruction.
Lastly, I'd asked that this court declined
to exercise its discretion to reduce the verdict under 33E.
This crime was one based on the victim's decision
to leave a relationship that was not healthy
and she was stabbed over 20 times.
For that decision,
the defendant went from New York to Nantucket
enter her home,
bought a knife that morning and stabbed her.
And for that reason, the facts of this case,
weren't nothing less than a first degree murder.
The jury heard from the experts
on criminal responsibility and diminished capacity
and rejected that, that's a question for the jury.
And if there are no further questions,
I rest on my brief.