COMMONWEALTH vs. MICHAEL G. LALIBERTY.

WILKINS, J. We affirm the defendant's convictions of murder in the first degree of Frank C. Dickinson and Bertha L. Dickinson. The victims, husband and wife and each over eighty years old, were brutally murdered on the night of September 8, 1975, in their home in Auburn. The defendant was sentenced to consecutive life sentences.

The defendant argues that the judge should have excluded from evidence black and white photographs of the victims. The photographs were relevant to the question of extreme atrocity and cruelty, and their admission was within the judge's discretion. Commonwealth v. Bys, 370 Mass. 350, 358-361 (1976). He gave cautionary instructions to the jury concerning the photographs on more than one occasion. There were no extraordinary circumstances making the admission of the photographs improper. See Commonwealth v. Richmond, 371 Mass. 563, 564-565 (1976).

The only other exceptions argued by the defendant relate to the exclusion of testimony he offered from a psychiatrist in support of a claim of insanity. As will be seen, the judge's rulings were correct. The defendant makes further arguments as to which no exceptions were claimed.

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We consider all the defendant's arguments in the context of our obligation under G. L. c. 278, Section 33E, to review the whole case to determine whether justice requires a new trial or a reduction in the verdicts. Our consideration of arguments not based on exceptions is restricted, however, to a determination whether there was a miscarriage of justice. See Commonwealth v. Williams, 364 Mass. 145, 150-151 (1973).

The defendant offered the testimony of a qualified psychiatrist, Dr. Malcolm R. Sills. Dr. Sills saw the defendant on three occasions for a total of approximately six hours and prepared a report. He concluded that the defendant's thinking was "concrete and dull," that he was unable to think in terms of abstractions, that his affect tended to be overcontrolled, and that he had no attachment to members of his family and had no real friends. Dr. Sills concluded that the defendant "was not retarded but that he was either dull normal or borderline" between dull normal and retarded. He described what the defendant told him about his past, the incidents of September 8, 1975, and two occasions where the defendant was "amnesic." Dr. Sills gave his general impressions of the defendant. He indicated his awareness of the opinion of this court in Commonwealth v. McHoul, 352 Mass. 544 (1967). He was asked his understanding of the McHoul decision and responded as set forth in the margin. [Note 1] The answer was struck on motion of the Commonwealth. The judge said, "[W]e will give the doctor a chance to restate it." The defendant excepted to the judge's ruling. The ruling was correct because the answer was not responsive in all aspects. The ruling was not prejudicial because the defendant was not foreclosed from pursuing the line of questioning.

After another question was excluded, the judge suggested to defense counsel that he might ask "the appropriate

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question using the McHoul standards as the subject matter of your questions." The attempt to direct the inquiry in terms of the principles laid down in the McHoul case was appropriate. Commonwealth v. Martin, 357 Mass. 190, 193 (1970). It is clear that defense counsel was well aware of the McHoul case but was reluctant to follow the form of questions indicated in that opinion. In particular, for a reason which soon became apparent, he seemed reluctant to ask Dr. Sills whether the defendant had a mental disease or defect on the night of the killings. The judge indicated that, before going to other matters of opinion under the McHoul standard, the defense must ascertain whether in Dr. Sills's opinion the defendant had a mental disease or defect on the night of the killings: "Take it one step at a time." When he was asked whether the defendant had had a mental disease or defect on the night of the killings, Dr. Sills answered that in his opinion the defendant did not. The judge sustained an objection to a further question concerning the defendant's ability to appreciate the criminality of his conduct or his ability to conform his conduct to the requirements of law. The defendant excepted to that ruling. The ruling, however, was entirely consistent with the McHoul standards. Criminal conduct is excusable in this Commonwealth on the ground of insanity only where the defendant's capacity to appreciate the criminality of his action or his capacity to conform his conduct to the requirements of law was substantially impaired as a result of a mental disease or defect. We see no reason at this time to depart from the standards expressed in the McHoul case. If an expert witness for a defendant concludes that the defendant was not suffering from a mental disease or defect at the time of the defendant's alleged criminal conduct, that expert witness need not be permitted to testify concerning the defendant's ability to appreciate the criminality of his conduct or his ability to conform his conduct to the requirements of the law.

After a bench conference, during which the judge explained his ruling in terms of the requirements of the McHoul case, Dr. Sills was permitted to testify that he

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defined "mental disease" conservatively to apply to a person if he is "at the more extreme end of mental illness and psychotic in my opinion." He further testified to the difference between a mental disease and a mental defect, and said that the defendant did not have a mental defect. The defendant rested his case, and the Commonwealth then rested without putting on a psychiatric expert in rebuttal, as originally planned.

The defendant was not precluded from obtaining Dr. Sills's diagnosis of the defendant's mental condition at the time of the killings. All that was restricted was the eliciting of the expert's opinion of the defendant's criminal responsibility in terms other than those outlined in McHoul. An expert opinion concerning criminal responsibility must be given according to the McHoul standard, but an expert may testify to his diagnosis even if in his opinion the defendant was not suffering from a "mental disease or defect." [Note 2] Since, in an appropriate case, the jury must make the factual determination whether a defendant was legally insane at the time of his allegedly criminal conduct, they should be allowed to have information concerning the defendant's mental state. Although a particular expert's definition of the terms "mental disease or defect" is helpful to the jury in their finding, the jury are not required to adopt any particular definition as their own in a particular case. It is well established that experts differ on their definition of those terms. See, e.g., Drope v. Missouri, 420 U.S. 162, 176 (1975); Model Penal Code Section 4.01, Comment at 160 (Tent. Draft No. 4, 1955); A.S. Goldstein, The

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Insanity Defense 47-48, 134 (1967); Green, Proof of Mental Incompetency and the Unexpressed Major Premise, 53 Yale L.J. 271 (1944). In Commonwealth v. McHoul, supra at 550, we indicated that one of the advantages of the Model Penal Code test for insanity "is that under it, experts will be unrestricted in stating all that is relevant to the defendant's mental illness. . . . This means that experts experienced in the study and treatment of the mentally ill may testify fully as to the nature and extent of impairment of defendants' mental faculties as well as their observations or other bases for their conclusions" (footnote omitted). The use of the words "mental illness" and "mental faculties" indicates that expert testimony regarding a defendant's mental state would be admitted even if the expert does not believe or testify that the defendant was criminally irresponsible within the McHoul test. See id. at n.6; Model Penal Code Section 4.07 (4) and Comment at 198 (Tent. Draft No. 4, 1955); Huckabee, Resolving the Problem of Dominance of Psychiatrists in Criminal Responsibility Decisions: A Proposal, 27 Sw. L.J. 790, 791 (1973). The sole restriction we place on the admission of an expert's opinion concerning a defendant's mental state is that he may express an opinion only in accordance with the standard of the McHoul case.

Although defense counsel had earlier indicated that he would like to make an offer of proof, he made no such offer. Dr. Sills did testify to a diagnosis and gave his conclusions regarding the defendant's personality type and intelligence. There is little in the record to show what Dr. Sills would have testified to additionally, if he had been permitted to do so. On the record, we find no basis for a conclusion that Dr. Sills's excluded testimony would have aided the defendant.

The defendant has appended Dr. Sills's report to his brief. The Commonwealth argues that we should disregard the report. In assessing whether there was reversible error in the judge's ruling restricting further testimony from Dr. Sills, we agree that the report may not be considered. Moreover, our obligation under G. L. c. 278, Section 33E, to consider

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the whole case, extends only to the record on appeal. See Commonwealth v. Simpson, 370 Mass. 119, 126-127 (1976). An unauthorized annexation to a brief is not part of the record on appeal for the purposes of G. L. c. 278, Section 33E. Thus, the defendant has brought nothing before us with which he may challenge the application of the McHoul standards in this case.

The defendant did not claim surprise by his expert's testimony, and he hardly could have. Dr. Sills's report, dated more than three months before trial, indicates that he did not regard the defendant's mental condition on the night of the killings as a disease. [Note 3] The defendant never sought to obtain another psychiatric expert. See United States v. Dwyer, 539 F.2d 924, 926-928 (2d Cir. 1976). From Dr. Sills's testimony, it appears that he did not believe the defendant was insane under the McHoul test, although on certain facts it appears (from his report) that he was prepared to testify that the defendant was in a dissociative state at the time of the killings. [Note 4]

The defendant seems to argue that the judge should have submitted the question of his sanity, or criminal responsibility, to the jury. When the defense of insanity has been raised by the evidence, the judge must give a requested instruction concerning the defendant's criminal responsibility. In Commonwealth v. Kostka, 370 Mass. 516,

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526-527 & n.7 (1976), we noted that evidence tending to show insanity "may enter the case during the prosecution's case in chief, either . . . [by] direct questioning or . . . cross-examination." Of course, often the defendant's asserted lack of criminal responsibility is supported by expert testimony on his behalf. See, e.g., Commonwealth v. Walker, 370 Mass. 548, 577 (1976); Commonwealth v. Kostka, supra at 525-526; Commonwealth v. Boyd, 367 Mass. 169, 172 (1975); Commonwealth v. Costa, 360 Mass. 177, 182-183 (1971); Commonwealth v. Smith, 357 Mass. 168, 177 (1970); Commonwealth v. Ricard, 355 Mass. 509, 514 (1969); Commonwealth v. Francis, 355 Mass. 108, 110 (1969); Commonwealth v. DeSalvo, 353 Mass. 476, 478 (1968); Commonwealth v. Chester, 337 Mass. 702, 708-709 (1958); Commonwealth v. McCann, 325 Mass. 510, 514 (1950). We have recognized, however, that the facts of the crime are an element which may be considered in support of an insanity defense. See, e.g., Commonwealth v. Costa, supra at 182; Commonwealth v. Francis, supra at 111. Cf. Commonwealth v. Cox, 327 Mass. 609, 615 (1951) (defendant's acts considered in granting a new trial under G. L. c. 278, Section 33E). Indeed, we have suggested recently that a defendant "might argue that the very facts of the alleged crime create an inference of mental disease or defect." Blaisdell v. Commonwealth, 372 Mass. 753, 765 (1977). Thus, expert testimony is not required to raise a defense of the lack of criminal responsibility. Id. United States v. Hartfield, 513 F.2d 254, 260 & n.3 (9th Cir. 1975). In Commonwealth v. McInerney, ante, 136, 151 (1977), we noted that "the question whether the evidence in any particular case was sufficient to require the judge to instruct on the subject does not appear to have been at issue in any case decided by this court." In the McInerney case, we held that certain statements made by the defendant and his history of impotency were insufficient to raise the issue of criminal responsibility.

As an issue considered apart from our obligations under G. L. c. 278, Section 33E, the defendant's argument that the judge should have charged the jury pursuant to an "insanity

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defense" is wholly lacking in merit. The defendant did not request an instruction on the question of his sanity. He did not object to the judge's charge. [Note 5] We consider the contention that the defendant's criminal responsibility was an issue only as it relates to our function under G. L. c. 278, Section 33E.

The burden was on the Commonwealth to prove the defendant's criminal responsibility beyond a reasonable doubt. Commonwealth v. Mutina, 366 Mass. 810, 815 n.2 (1975). The "presumption of sanity" operates procedurally to meet that burden until the question of the defendant's sanity is raised. Commonwealth v. Kostka, 370 Mass. 516, 530 (1976). [Note 6]

The evidence was sufficient to raise a question of the defendant's criminal responsibility. The victims were stabbed repeatedly and their bodies mutilated. The evidence would permit a finding that the defendant was a drug user of marginal intelligence who had no memory of his conduct after he entered the victim's premises. He told the police that he remembered walking on the driveway, and that he felt strange, "kind of like floating." He testified that he "felt almost like I was hallucinating." An insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning

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the defendant's criminal responsibility at the time of the killings. United States v. Currier, 405 F.2d 1039, 1042 (2d Cir.), cert. denied, 395 U.S. 914 (1969). See A.S. Goldstein, The Insanity Defense 112-113 (1967). However, as we have said, because the defendant not only did not request an instruction on criminal responsibility but consciously eschewed pressing the point, the matter of his criminal responsibility was not fairly raised in this case.

We conclude under our obligation pursuant to G. L. c. 278, Section 33E, that the defendant is not entitled to a new trial on the ground that his criminal responsibility was not submitted to the jury. [Note 7] His argument, if accepted, would mean that a defendant could conduct his defense on one theory, such as a claim, as here, that someone else committed the crime, and then argue on appeal that he should have a new trial because he did not advance a claim of criminal irresponsibility, as he should have. We do not regard G. L. c. 278, Section 33E, as a procedural device by which a defendant may challenge his own trial tactics.

Even if a defendant were permitted to pursue such a dichotomous approach under G. L. c. 278, Section 33E, the record in this case does not support a claim that he should have a new trial in which he could try the question of his criminal responsibility. This is unlike those cases involving an insanity defense where this court or certain Justices have concluded that a new trial should be granted in exercise of this court's power under G. L. c. 278, Section 33E. See Commonwealth v. Walker, 370 Mass. 548, 584 (1976) (Hennessey, C.J., and Kaplan, J., dissenting in part) (Liacos, J., concurring); Commonwealth v. Kostka, 370 Mass. 516, 539 (1976) (Hennessey, C.J., and Kaplan, J., dissenting in part); Commonwealth v. Francis, 355 Mass. 108, 112 (1969) (Whittemore and Cutter, JJ., dissenting); Commonwealth v. Cox, 327 Mass. 609, 615 (1951). In all these cases, the defendant actively asserted his lack of criminal

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responsibility, and there was expert testimony indicating that the defendant was not criminally responsible. In all but the Francis case, there was no expert testimony at all on behalf of the Commonwealth concerning the defendant's sanity. [Note 8] Here the only expert testimony indicated that the defendant was not suffering from a mental disease or defect at the time of the killings. [Note 9] From our assessment of this entire record, we conclude that substantial justice does not require a new trial at which the defendant's criminal responsibility at the time of the killings would be submitted to the jury. See United States v. Spenard, 438 F.2d 717, 720 (2d Cir. 1971).

The defendant's motion for a new trial, as argued here, presents no independent issue and was properly denied. Convictions of murder in the first degree were appropriate, and, assuming that the imposition of consecutive life sentences is a matter which we can consider under G. L. c. 278, Section 33E, we believe that consecutive sentences were fully warranted in this case. The convictions are affirmed.

Judgments affirmed.