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Commonwealth v. Yancy10/21/2003
Hill would have offered some support for Dr. Bursztajn's anatomical testimony, but he resisted giving an opinion as to how any particular person's brain functioned. He therefore would have added nothing significant on this point.
Dr. Bursztajn gave extensive testimony about the result of the SPECT scan of the defendant's brain. The largest portion of his testimony involved brain anatomy and psychiatry, and he made use of Dr. Hill's SPECT scan results and the SPECT scan transparencies to support that testimony. Dr. Bursztajn acknowledged that he was not an expert in reading SPECT scans. In that regard, however, he pointed out that, like the primary care physician who relies on the reports of a radiologist, the forensic psychiatrist relies on the reports of the neuroradiologist to assist in the diagnosis and treatment of conditions that are not visually apparent. He also indicated that his teachings include the use of SPECT scans in psychiatry. He was entitled to rely on the SPECT scan report as a basis for his opinion. Although not an expert in SPECT scan technology, he was sufficiently familiar with it to offer testimony about its use in psychiatry. Other contentions about his testimony are insignificant to merit discussion. Contrary to the defendant's assertion, Dr. Bursztajn's SPECT scan testimony was appropriate.
Finally, there is no merit to the criticism of Dr. Bursztajn for his use of colloquialisms like "cold spot," "hot spot," and "emotional thermostat" to explain complex medical and psychiatric concepts. The fact that both Dr. Hill and Dr. Kelly were critical of such use does not make them ineffectual teaching aids for the jury. It is apparent from the record that Dr. Bursztajn was apologetic for their use, but he proceeded to use them in an attempt to make his testimony more accessible to the jury.
We conclude that counsel's failure to call Dr. Hill to testify probably would not have affected the verdicts, and that there was no error in the denial of the defendant's motion for a new trial. We add that, where there were multiple expressions of an intent to kill and unmistakable indicia of planning (references to insurance, cremation, taking the whole family with him), expert opinion that the defendant was incapable of intending or premeditating what he obviously did was unlikely to create a reasonable doubt.
3. Jury instructions.
The defendant claims that the jury instructions on "diminished capacity" were inadequate. There was no objection, so we review under G. L. c. 278, § 33E, to determine whether any error in the instructions created a substantial likelihood of a miscarriage of justice. We have reviewed the instructions, and conclude that the jury were properly instructed that they could consider "diminished capacity" both as to deliberate premeditation and malice aforethought, conformably with Commonwealth v. Grey, 399 Mass. 469 (1987), and Commonwealth v. Gould, 380 Mass. 672, 680-683 (1980). The judge instructed the jury that they could consider the defendant's mental condition on the day in question, including mental impairment, if any, or voluntary intoxication from the use of alcohol or drugs, if any. The defendant contends that the charge was defective because the judge did not use the precise language used in Commonwealth v. Delle Chiaie, 323 Mass. 615, 617 (1949). The precise Delle Chiaie language is not required. See Commonwealth v. Freiberg, 405 Mass. 282, 303, cert. denied, 493 U.S. 940 (1989). There was no error.
4. General Laws c. 278, § 33E, review.
We have reviewed the transcripts, the entire record, and the briefs, and conclude that neither a reduction of the convictions nor a new trial is warran
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