Commonwealth v. Berry (Lawyers Weekly No. 10-004-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11190 COMMONWEALTH vs. SHEILA BERRY. Plymouth. September 10, 2013. ‑ January 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Mental Impairment. Evidence, Expert. Practice, Criminal, Witness, Capital case. Witness, Psychologist, Expert. Intoxication. Indictment found and returned in the Superior Court Department on January 24, 2003. Following review by this court, 457 Mass. 602 (2010), the case was tried before Linda E. Giles, J. Kevin S. Nixon for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In March of 2006, a jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty.[1] See Commonwealth v. Berry, 457 Mass. 602 (2010). This court reversed the defendant’s conviction because of an error in the jury instructions on lack of criminal responsibility, and we remanded the case for a new trial. Id. at 615-618. The defendant was tried again in October, 2011, and again was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. Before us is the defendant’s appeal from that conviction. The defendant argues that the trial judge erred in refusing to strike an expert’s testimony that the defendant was criminally responsible; she argues also that in the circumstances of this case, pursuant to G. L. c. 278, § 33E, we should reduce the degree of guilt or order a new trial. For the reasons set forth below, in the exercise of our responsibility under § 33E, we conclude that the interests of justice require a reduction of the degree of guilt to murder in the second degree. Background. The evidence presented in the defendant’s second trial was substantially similar to the evidence in the first, and it is summarized in Commonwealth v. Berry, 457 Mass. at 603-605. A major focus of both trials was on the defendant’s mental state at the time of the crime; her defense was lack of criminal responsibility. We summarize here the basic outline of the events leading up to and including the death of the victim, and reserve additional facts for later discussion in connection with our consideration of the entire case under § 33E. 1. The homicide. On the night of August 14, 2002, after having dinner with a friend during which she drank two or […]