COMMONWEALTH vs. ALFONSO CRUZ.

GREANEY, J. On March 29, 1989, a jury in the Superior Court found the defendant guilty of murder in the first degree based on extreme atrocity or cruelty. We agree with the argument made by the defendant's new counsel that the trial judge erred in excluding expert testimony, offered in the form of an opinion, that the defendant's blood alcohol level impaired his mental capacity. That evidence was relevant to the jury's consideration of the defendant's culpability for first degree murder. Although the issue was not fully preserved by the defendant's trial counsel, we conclude that the jury's consideration of the case could have been influenced by the evidence.

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The defendant, therefore, is entitled to relief pursuant to G. L. c. 278, Section 33E (1990 ed.), see Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), and we order a new trial.

The following summary provides relevant background. The Commonwealth's eyewitness testified that he lived in the Bay Village area of Boston and made his living by dressing in women's clothing and "going out" with men. On October 4, 1987, around 11 P.M., the witness was dressed in "drag" and looking for men near South Charles Street when he encountered, and had a conversation with, the defendant who offered him money for "a date." The offer was rejected. A few blocks from the site of this encounter, approximately twenty minutes later, the eyewitness heard screams. Moving toward the screams, he saw the defendant pulling a woman, later identified as the victim, into a well-lit garage bay toward an open space between two parked automobiles. [Note 1] Keeping the garage bay under surveillance, the eyewitness summoned help. At no time did he see anyone drive out of the area nor did the number of automobiles parked in the bay decrease.

Two Boston police officers arrived. They entered the garage bay and saw the victim lying on the ground. The defendant crouched nearby holding a knife. After having the defendant put down the knife, the police observed that the knife was bloody and that the defendant had what appeared to be bloodstains on his pants, hands, and face. Money taken from the defendant's coat pocket was bloodstained.

The victim had been killed by multiple stab wounds in a manner which would warrant a jury finding of murder by extreme atrocity or cruelty. There was evidence that both the defendant and the victim had type A blood, and that type A blood was found on the knife and one $20 bill taken from the

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defendant. [Note 2] The victim was known to the police by reason of several prior arrests for prostitution. When arrested in the past, she usually was found to carry condoms, cigarettes, and United States currency which she placed inside her boots or shoes. Photographs of her body at the scene showed that one of her boots had been unzipped.

The defendant, a thirty year old Mexican national, testified in his own behalf. He indicated that he had entered California about twenty days before he was arrested and had come to Boston from San Francisco. In Boston, he slept "[i]n churches, in missions." The defendant indicated that on the day of the murder he had consumed twenty or thirty beers. The defendant had been drinking since age thirteen and usually drank beer and whiskey, but only on weekends. The defendant had no memory of eating anything or going to the garage bay on the day of the murder. He claimed he was drunk and asleep in the garage bay when he was awakened by a woman's voice. From the rear he saw some of the cars leaving the area. He testified that he saw the victim and that as he touched her body with his hands, a knife fell off her. The defendant stated that he wiped the blood from his hands on his pants and picked up the knife just before the police arrived. He denied stabbing the victim and claimed that he had no memory of events of the night, including his attempt to solicit the eyewitness.

As part of his case, the defendant called a forensic chemist. During a voir dire on his qualifications, the chemist indicated considerable training and experience in evaluating blood alcohol levels. In addition to other qualifications, [Note 3] his experience included over 200 occasions when the expert had

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been called to give opinion testimony in various State, Federal, and foreign courts on blood alcohol concentrations. The forensic chemist also testified that, based on extensive reading in the area, he was qualified to form an opinion "as to how the [amount of] alcohol [consumed] would affect judgment of an individual." Based on the information before him, [Note 4] and certain scientific formulations, the acceptability of which is not challenged, the defendant's expert was prepared to testify that (1) at the time of the incident, the defendant would have had a blood alcohol level of approximately .19; and (2) such a blood alcohol level would have "severely affect[ed]" the defendant's judgment. The judge ruled that he would allow the expert's first opinion, but not the second "because that is . . . an ultimate issue for the jury to decide." This ruling was made without any objection having been interposed by the prosecutor and without objection or argument from the defendant's trial counsel. The prosecutor then stated his understanding to be that the judge would "permit the witness to testify as to only the forensic chemical aspects and not as to whether or not alcohol impaired the judgment of the defendant." That understanding was confirmed by the judge, and the testimony before the jury thereafter proceeded in accordance with the judge's ruling.

1. The judge should have admitted all of the expert's testimony. In a first degree murder trial, a defendant may show that he was so far overcome by intoxicating substances as to be rendered incapable of forming the intent or knowledge necessary to commit premeditated murder, or murder with extreme atrocity or cruelty, and, based on such evidence, a jury would be warranted in returning a verdict of second degree

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murder, if they were satisfied beyond a reasonable doubt that all other elements of the crime had been proved. See Commonwealth v. Sires, ante 292, 298-301 (1992); Commonwealth v. Sama, 411 Mass. 293, 297-299 (1991); Commonwealth v. Doucette, 391 Mass. 443, 455-456 (1984). Consistent with these principles, the defendant presented evidence raising a substantial claim that, because of intoxication, he lacked capacity to commit deliberate, premeditated murder or murder with extreme atrocity or cruelty, and the jury were instructed (and reinstructed during deliberations at their request) on the subject. The judge excluded the evidence, not on the basis of lack of qualification of the defendant's expert, but because he thought the opinion improperly intruded on the jury's consideration of an ultimate issue. [Note 5] However, "expert testimony . . . is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide." Simon v. Solomon, 385 Mass. 91, 105 (1982). See Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977); Commonwealth v. Montmeny, 360 Mass. 526, 527-528 (1971); Proposed Mass. R. Evid. 704. Indeed, evidence at trial that a defendant's mind may have been impaired at the time of a crime, due either to a mental disease or to intoxication by drugs or alcohol, almost always includes expert testimony that relates to the ultimate issues of intent, knowledge, and the ability to premeditate by describing both the nature of a

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defendant's mental condition and its effect on his state of mind at the relevant time. [Note 6] If the jury credited the defendant's evidence on intoxication, they would not have necessarily known, apart from the excluded expert testimony, what effect a blood alcohol level of .19 might have had on the defendant's mental processes. See Simon v. Solomon, supra at 105. We reject the Commonwealth's argument, based on Commonwealth v. Blake, 409 Mass. 146 (1991), that the judge's ruling should be sustained because the question asked of the expert was overbroad or confusing. [Note 7]

2. The Commonwealth has indicated that, if a basis for relief is found pursuant to G. L. c. 278, Section 33E, it would desire to reprosecute the defendant. We, therefore, conclude that the appropriate remedy is a new trial. The judge presiding at retrial may consider anew the qualifications of any expert offered as to the effects of intoxication. The judge should deny a request to instruct the jury that an individual with a blood alcohol level exceeding .10 per cent can be found to be intoxicated. We do not think the percentage of blood alcohol level that applies to motor vehicle cases should become the

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basis of an instruction in a first degree murder case on the effects of intoxication. The instructions that would apply here can be drawn from Commonwealth v. Sires, supra, and Commonwealth v. Sama, supra.

The judgment is reversed, and the verdict is set aside. The case is remanded for a new trial.

So ordered.