COMMONWEALTH vs. BRADFORD W. PRENDERGAST.

ABRAMS, J. The defendant, Bradford W. Prendergast, was convicted of murder in the first degree for the December 20, 1979, slaying of Patricia Gilmore. At trial, the defendant acknowledged that he killed the victim, but he asserted that he was not criminally responsible. The jurors rejected the defendant's claim that he was not criminally responsible and returned a verdict of guilty of murder in the first degree. [Note 1] On appeal, the defendant argues error concerning (1) the empanelment of the jury; (2) the denial of a motion for a mistrial based on the prosecutor's conduct; (3) the denial of a motion for a mistrial based on the prosecutor's summation; and (4) the judge's instructions. Finally, the defendant

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argues that "justice and fairness demand that [he] be granted a new trial." G. L. c. 278, Section 33E. We affirm the defendant's convictions. We conclude that there is no reason to exercise our power under G. L. c. 278, Section 33E.

1. A. Jury empanelment. The defendant asserts that prejudice against the defense of lack of criminal responsibility is as pervasive as racial prejudice and thus "there [is] a substantial risk that the jury [were] influenced by extraneous issues." Commonwealth v. Sanders, 383 Mass. 637, 639-640 (1981). In light of this risk, the defendant claims error in the refusal of the trial judge to pose the following question to potential jurors: "If the evidence presented warrants a finding that the defendant is guilty of murder and the evidence further warrants a finding that the defendant had a mental disease at the time of the alleged crime, and as a result of this mental disease, he did not have substantial capacity to conform his conduct to the requirements of law, have you any opinions that would prevent you from finding the defendant not guilty by reason of insanity?"

To support his argument, the defendant relies on thirteen newspaper articles. Only four of these articles appeared prior to the empanelment. Although all four articles mentioned Prendergast, only one discussed the issue of criminal responsibility. The defendant's evidence does not show a substantial risk of juror bias against the defense of lack of criminal responsibility.

"[W]e are not prepared to assume . . . that there is such widespread prejudice against psychiatrists and the concept of criminal irresponsibility as to mandate pretrial inquiry on these subjects. See Commonwealth v. Ricard, 355 Mass. 509, 511-512 (1969). Absent some reason to suspect that the jurors may be so prejudiced, see Commonwealth v. Campbell, 378 Mass. 680, 696 (1979), a judge is warranted in relying upon his final charge to the jury to purge any bias from the jurors prior to their deliberations." Commonwealth v. Estremera, 383 Mass. 382, 388 (1981).

Further, the judge inquired of each potential juror as to his or her knowledge of the case, if any, from the media. He

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also asked each potential juror whether he or she had the ability to consider psychiatric testimony impartially. In response to these questions some potential jurors admitted that they would be biased against finding the defendant not guilty by reason of insanity. The judge excused those jurors. [Note 2] Moreover, if the judge received an answer which he or either party regarded as equivocal, the judge would ask additional questions. [Note 3] Finally, throughout the empanelment, the judge excused several jurors whose answers were "marginal" so that the defendant could conserve his peremptory challenges. Thus, we conclude that the judge did explore each potential juror's view on the subject of criminal responsibility, although he did not ask the precise question suggested by the defendant. "The judge has broad discretion as to the questions to be asked, and need not put the specific questions proposed by the defendant." Commonwealth v. Sanders, 383 Mass. 637, 641 (1981).

We do not require as a matter of law that questions be directed at discovering bias against the defense of lack of criminal responsibility "in every case involving testimony by psychiatrists and the defense of insanity." Commonwealth v. Estremera, 383 Mass. 382, 388 (1981), quoting from Commonwealth v. Killelea, 370 Mass. 638, 649-650 (1976). Nevertheless if the defendant shows that there is a "substantial

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risk that the jury would be influenced by extraneous issues," Commonwealth v. Sanders, 383 Mass. 637, 639-640 (1981), the judge should ask questions aimed at discovering those factors.

B. Capital punishment. The defendant claims that the judge wrongfully excluded five jurors opposed to capital punishment. The defendant asserts that the exclusion of these five jurors produced a jury that favored the prosecution. [Note 4] We disagree.

At the time of the defendant's trial, St. 1979, c. 488, had not been declared unconstitutional. See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980). There was therefore a possibility that the defendant might be sentenced to death. In these circumstances, there was no error in the judge's asking prospective jurors if they had a "belief, philosophy, state of mind or opinion, which would prevent [them] from making a recommendation, either to impose the death penalty or not to impose the death penalty." See Commonwealth v. Curry, 368 Mass. 195, 203-204 (1975); Commonwealth v. Ladetto, 349 Mass. 237, 245 (1965). The five potential jurors who were excluded all indicated that they would not recommend the death penalty in any circumstance. In addition, the judge declared indifferent one juror who was generally opposed to capital punishment. We, therefore, are not persuaded that the exclusion of the five jurors in this case deprived the defendant of a jury that could fairly and objectively determine his guilt or innocence. [Note 5]

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2. Motion for a mistrial based on prosecutorial conduct. The defendant claims that the judge erred in denying the defendant's motion for a mistrial based on what he perceives as prosecutorial errors: (1) the prosecutor's objections to the admission of a psychologist's opinion in a medical record; (2) the prosecutor's question concerning the opinion of a psychiatrist in a medical record; and (3) the prosecutor's redirect examination of the Commonwealth's psychiatrist. We conclude that there is no error.

A. Objection to psychologist's opinion in a medical record. The defendant claims that during the trial the prosecutor unfairly sought to diminish the importance of an opinion of a psychologist in a medical record. The psychologist was the deputy medical director of the Massachusetts Correctional Institution at Bridgewater. In a report, dated August 16, 1979, the psychologist wrote that the defendant is "mentally ill" and that failure to hospitalize [this patient] in strict security would constitute a likelihood of serious harm . . . to at least one potential victim and to himself." In the presence of the jury, the prosecutor objected to a "psychologist making a medical opinion. It is not competent, practicing medicine without a license." The defendant objected and the judge sustained the objection. The judge immediately instructed the jury to disregard the prosecutor's remarks. [Note 6] The judge acted promptly to neutralize the prejudicial

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effect, if any, arising out of the prosecutor's statement. "[W]e shall not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration." Commonwealth v. Gordon, 356 Mass. 598, 604 (1970).

B. Question concerning psychiatrist's opinion in a medical record. The defendant claims that a portion of the redirect examination of the prosecution's expert on criminal responsibility was unfairly prejudicial. Specifically, the defendant objects to the following questions by the prosecutor: "[D]id you receive any information that causes you to change your opinion as to criminal responsibility . . .?" "Did you, in fact, determine [whether a doctor had an] opinion as to the criminal responsibility of Bradford Prendergast." The defendant claims that these questions incorrectly suggested that two doctors had concluded that Prendergast was criminally responsible. [Note 7]

At trial, the judge sustained the defendant's objections to these questions. The Commonwealth's expert was not allowed to answer these questions. Further, the prosecutor did not even finish the question about the doctor. This incomplete

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question gave the jury no idea of the doctor's opinion. [Note 8] We conclude that the judge's action in promptly sustaining the defendant's objection was sufficient to neutralize any possible prejudice. There was no error in denying the defendant's motion for a mistrial.

C. Redirect examination of the Commonwealth's expert. The defendant's final point challenges the prosecutor's redirect examination of the Commonwealth's expert. The Commonwealth's expert rejected the opinion of the chief psychiatrist at Lemuel Shattuck Hospital (the defendant's expert) that the defendant was unable to conform his conduct to the requirements of the law on December 20, 1979. On cross-examination, defense counsel asked the Commonwealth's expert if he had taken the defense expert's opinion into consideration when he concluded that Prendergast was criminally responsible. On redirect examination, the prosecutor asked the Commonwealth's expert several questions aimed at explaining his rejection of the defense expert's opinion. These questions included the following: "Were you aware that [the defense expert] . . . changed his opinion for the third time, regarding his observations of [Bradford] Prendergast?" "Were you aware that . . . [the defense expert] got up at 8:00 o'clock in the morning and went over to [the defendant's attorney's] office, to discuss what his testimony was to be?" The defendant claims that these questions were unfairly prejudicial because they suggested that defense counsel tried to fabricate the defense expert's testimony. [Note 9]

As we read the record, these questions were aimed at rehabilitating the credibility of the Commonwealth's expert. The prosecutor asked these questions on redirect examination after the defendant had tried to discredit the opinion of

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the Commonwealth's expert. In asking these questions, the prosecutor was eliciting an explanation as to why the Commonwealth's expert rejected the opinion of the psychiatrist who interviewed the defendant on December 21, 1979, the day after the slaying. "The party for whom a witness testified may introduce evidence that contradicts or explains the evidence adduced to impeach the witness." P.J. Liacos, Massachusetts Evidence 165-166 (5th ed. 1981), and cases cited. There was no error.

3. Prosecutor's summation. The defendant claims that the judge erred in denying his motion for a mistrial based upon a remark made by the prosecutor during closing argument. In his closing, the prosecutor remarked that the defendant's hospital records do not mention that Prendergast lacked criminal responsibility. The defendant asserts this remark is unduly prejudicial because it suggests that the doctors who prepared these records concluded that Prendergast was criminally responsible. Since these records were prepared before criminal responsibility became an issue, the defendant argues that his remark impermissibly exceeded the bounds of fair argument by creating a false impression that the defendant had been found criminally responsible. We do not agree.

The summation of the prosecutor suggested to the jury that the diagnosis in the hospital records that the defendant was mentally ill did not foreclose juror consideration on the issue of criminal responsibility. The prosecutor stated that the two issues were different and that the issue before the jury was criminal responsibility, not mental illness. He conceded that the defendant was mentally ill.

Further, the prosecutor made this comment in response to the defense attorney's closing remarks. In his summation, the lawyer for the defense cited the defendant's hospital records as evidence that the defendant was mentally ill and dangerous and, therefore, not criminally responsible. In this context, the prosecutor's statement about the hospital records was within the prosecutor's right of retaliatory reply. See Commonwealth v. McColl, 375 Mass. 316, 325

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(1978). Cf. Commonwealth v. Burke, 373 Mass. 569, 576 (1977); Commonwealth v. Haas, 373 Mass. 545, 561 (1977). Finally, "[t]he jury could be expected to take both arguments with a grain of salt." Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982).

4. Instructions on mental impairment. The defendant claims that the judge did not properly instruct the jury to consider the effect of the defendant's mental condition on the issues of deliberate premeditation and extreme atrocity or cruelty. [Note 10] We disagree.

Since the defendant did not object at trial to the instruction on the effect of mental impairment, we review this claim under G. L. c. 278, Section 33E, to determine whether there is a "substantial likelihood that a miscarriage of justice has occurred." Commonwealth v. Garcia, 379 Mass. 422, 439 (1980). We only reverse on a showing of grave prejudice. Commonwealth v. Tavares, 385 Mass. 140, 149 (1982).

If expert testimony on the defendant's mental state is presented, a "judge should instruct the jury that the defendant's mental illness may be considered on the issue of deliberate premeditation . . . [and] extreme atrocity or cruelty." Commonwealth v. Gould, 380 Mass. 672, 683, 686 (1980). "Evidence of the defendant's mental disease . . . bears on the specific intent required for murder in the first degree . . . ." Id. at 682.

In this case, the judge told the jury that they "may consider a defendant's long-standing mental illness in ascertaining whether the defendant had sufficient mental capacity to deliberately premeditate the acts charged." Quoting from Commonwealth v. Gould, 380 Mass. 672 (1980), the judge defined deliberate premeditation as " `critically evaluating the pros and cons of proceeding to effectuate the desire.' " Id. at 683. The judge explained that if the defendant suffered

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from a mental impairment "that affected his mental processes," the jury should reduce the verdict from murder in the first degree to murder in the second degree. These instructions adequately informed the jury of the effect of the defendant's mental condition on his ability to premeditate.

In his charge, the judge instructed the jury that an impaired mind may be considered as evidence whether or not the defendant committed murder with extreme atrocity or cruelty. The judge told the jury that in determining extreme atrocity or cruelty, they "are not restricted to considering only the defendant's course of action, but are also permitted to consider the defendant's peculiar mental state." We believe that the judge adequately informed the jury that they should consider the defendant's mental state on the issue of extreme atrocity or cruelty. [Note 11] We conclude that the defendant has failed to show a substantial likelihood of a miscarriage of justice.

5. Relief pursuant to G. L. c. 278, Section 33E. The court has the obligation pursuant to Section 33E to consider the whole case on the law and the facts. "Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence . . . or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt." G. L. c. 278, Section 33E, as amended through St. 1979, c. 346, Section 2. Our power is to be used with restraint. Commonwealth v. MacDonald, 371 Mass. 600, 604 (1976).

On December 20, 1979, the defendant on furlough from the Billerica house of correction [Note 12] purchased a knife with a

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six-inch blade from one store and a starter pistol from another. He paid for the items with a credit card. The sales personnel who observed the defendant did not notice anything bizarre or unusual in the defendant's behavior. [Note 13]

The victim, the defendant's former girl friend, [Note 14] came home for lunch at approximately 1:35 P.M. At that time the victim's two sisters, her brother, and her mother were at home. Shortly after the victim arrived home, the defendant ran through the front door holding a gun. [Note 15] He said "Don't anyone move or I'll shoot you. . . . I've been planning this for a year." [Note 16] He asked for money so he could leave the State. He grabbed the victim and left. [Note 17]

At approximately 4:23 P.M., the defendant registered at the Dedham Holiday Inn. He appeared calm, mild and

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"quite composed." At 5:45 P.M., the defendant was found in the corridor of the Holiday Inn with cuts on his wrists and neck. The bathtub was filled with bloody water, and the curtain reel was pulled out to one side. It had a rope noose tied to it. The defendant told police that he loved the victim, that he stabbed the victim, and that Satan made him stab her.

The victim was found in Middleborough at approximately 8 P.M. Her hands were tied behind her back. She had been stabbed twenty-six times. Cuts in the victim's right hand were described as defensive wounds.

There was evidence that three psychiatrists were of the opinion that the defendant was not criminally responsible for his conduct. See Commonwealth v. McHoul, 352 Mass. 544 (1967). Additionally, there was evidence that from October, 1978, to September 28, 1979, the defendant was in and out of various institutions for the mentally ill and had several diagnoses including severe depression and schizophrenia. [Note 18] His treatment included electro-convulsive shock.

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Relying on his extensive records and the testimony of three psychiatrists, the defendant claims that "justice demands . . . a new trial."

The Commonwealth concedes that the defendant was mentally ill, but argues that there is more than adequate evidence to support the jury's verdict. We agree. "To the extent that the evidence permitted conflicting inferences, it is for the jury to determine the issue of responsibility. There was ample lay testimony to support the jury's conclusion that [Prendergast's] conduct exhibited an ability to control his behavior and an awareness of the wrongfulness of his conduct. The testimony of the witnesses who saw [Prendergast before the offenses and] at the time of the offenses and immediately thereafter adequately rebutted the testimony of the experts on the issue of sanity." Commonwealth v. Cole, 380 Mass. 30, 37-38 (1980). The Commonwealth also had an expert opinion that Prendergast was responsible for his conduct as well as a plethora of evidence that Prendergast controlled his behavior when it suited his purposes. [Note 19] Since "[t]he jury were correctly instructed on the law and the evidence was sufficient to support their verdict that the defendant was guilty of murder in the first degree," Commonwealth v. Cadwell, 374 Mass. 308, 320 (1978) (Quirico, J., dissenting in part), there is no reason for us to exercise our power under Section 33E. We are not a second jury. We do not determine the issue of criminal responsibility.

Judgments affirmed.