NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]

SJC-10340

COMMONWEALTH vs. ROY DOWDS.

Essex. December 7, 2018. - November 8, 2019.

Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

Homicide. Felony-Murder Rule. Motor Vehicle, Theft. Robbery. Mental Impairment. Constitutional Law, Assistance of counsel, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Capital case, New trial, Motion for reconsideration, Assistance of counsel, Admissions and confessions, Voluntariness of statement.

Indictment found and returned in the Superior Court Department on June 9, 2006.

The case was tried before Richard E. Welch, III, J.; a motion for a new trial, filed on October 6, 2014, was heard by him; and a motion for reconsideration, filed on June 30, 2017, was heard by Kenneth W. Salinger, J.

David J. Nathanson (Eva G. Jellison also present) for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

GAZIANO, J. In May 2006, Keith Koster was killed while 2

attempting to prevent the defendant from stealing Koster's sport

utility vehicle (SUV). The incident was seen by a number of

witnesses, and the defendant was arrested shortly after he

crashed the SUV to which Koster had been clinging. Although the

defendant suffers from long-standing brain injuries that affect

his cognition and behavior, trial counsel took no steps to

research or present any such evidence in the defendant's motion

to suppress or at trial. A Superior Court jury found the

defendant guilty of murder in the first degree on theories of

extreme atrocity or cruelty and felony-murder predicated on

unarmed robbery.1

Represented by new counsel, the defendant filed a motion

for a new trial; he argued ineffective assistance due to trial

counsel's failure to consult an expert about the defendant's

mental capacity. The motion was denied by the trial judge. A

different judge subsequently denied the defendant's motion to

reopen and reconsider the motion for a new trial.

We discern no error in the decisions to deny the motion for

a new trial and the motion to reopen and reconsider that motion.

In the circumstances of the case, however, we conclude that,

1 The jury did not find the defendant guilty of murder in the first degree on a theory of deliberate premeditation, but did convict him of larceny of a motor vehicle. At sentencing, the court placed the convictions of unarmed robbery and larceny of a motor vehicle on file. 3

pursuant to our authority under G. L. c. 278, § 33E, the

interests of justice require that the degree of guilt be reduced

to murder in the second degree.

1. Background. a. Facts. We recite the facts the jury

could have found, reserving some details for later discussion.

The victim, who was twenty years old, worked at a retail

shop located on Route 114 in Danvers. On an evening in May

2006, the victim parked his SUV outside the shop, leaving the

keys inside the vehicle. At approximately 7:30 P.M., the

victim's coworker saw the defendant walking towards the area

where the SUV was parked. Seeing the SUV being driven away, the

shop's owner alerted the victim, who ran out to the SUV as it

prepared to merge onto Route 114.

The victim banged on the front passenger's side window and

yelled for the defendant to stop. The victim then clung to the

SUV's exterior as it pulled out of the parking lot and

accelerated down Route 114. Witnesses observed the SUV

"shaking" as it swerved back and forth, changed lanes,2 and

veered from side to side. The SUV struck a telephone pole

approximately one-half mile from the shop, causing the vehicle

to "fl[y] up in the air," spin into two vehicles parked at a

2 Route 114 has two traffic lanes traveling east and two lanes traveling west. It is a major State highway lined with retail establishments. 4

nearby automobile dealership, and then collide with a light

pole, where the SUV came to a stop.

A collision analyst determined that the SUV had been

traveling forty-nine miles per hour when it was spinning, and at

a greater speed immediately prior. During the crash, the victim

struck a telephone pole, was thrown into the air, and landed in

the street. He incurred a fractured skull, two contusions on

his brain, numerous broken bones, a torn liver, and severe

wounds to his right leg and arm.

The defendant got out of the SUV and stumbled away from the

scene, passing behind a row of vehicles parked at the automobile

dealership. A witness called the police, who arrived within

minutes. Officers initially requested an aerial medical

evacuation, then canceled it due to the victim's fatal injuries.

Approximately fifteen to twenty minutes after the crash,

officers apprehended the defendant in a parking lot near the

scene.

The defendant, who had scratches on his arm and a small

amount of blood on his neck, told the officers that he did not

need medical attention. An arresting officer informed the

defendant of his rights pursuant to Miranda v. Arizona,

(1966), and the defendant indicated that he understood those

rights. The defendant admitted that he stole the SUV because he

wanted to drive it to his home in Lawrence. He also 5

acknowledged that he had left the scene after the crash. Two

witnesses identified the defendant as the man they had seen

leaving the SUV.3

Officers brought the defendant to the Danvers police

station, where he again waived his Miranda rights, this time by

signing a waiver form. Immediately before being questioned, the

defendant was again read his Miranda rights, and signed another

waiver form. When interviewed by Lieutenant Norman Zuk and

Sergeant Carole Germano, the defendant stated that at

approximately 11:30 A.M. that day, he had smoked "weed" and had

consumed "a forty" ounce beer at an apartment in Beverly. At

approximately 2 P.M., he began to walk the roughly twenty miles

from Beverly to his home in Lawrence. Along the way, in

Danvers, the defendant encountered the victim's SUV. The

defendant said that he chose to steal that particular vehicle

because he had looked inside and seen the keys. Following

questioning, the defendant said that, after getting into the

SUV, he saw the victim at the passenger's side window. The

defendant also observed the victim jump onto "the side of the

3 Prior to trial, the defendant also moved separately to suppress the witness identifications. After a hearing, the judge denied the motion. On appeal, the defendant does not challenge this denial. We nonetheless have reviewed the record pursuant to G. L. c. 278, § 33E, and discern no substantial likelihood of a miscarriage of justice as a result of the denial. 6

vehicle," bang his fist on the closed window, and yell at the

defendant to stop. The defendant said that he had wanted to

remove the victim from the SUV "through any means necessary," so

that the defendant could "have whatever [he] felt . . . was

right for" him. The defendant explained that he swerved around

other vehicles on the road in an attempt to shake the victim

from the vehicle.

The defendant mentioned that he had a history of seizures,

but said that he had not experienced a seizure for approximately

forty-five days. He also discussed Michelle Kitchen, a reentry

case manager who had helped him to secure housing after he had

completed serving a prison sentence approximately six weeks

earlier.

b. Prior proceedings. The defendant was indicted on

charges of murder in the first degree, G. L. c. 265, § 1;

unarmed robbery, G. L. c. 265, § 19; and larceny of a motor

vehicle, G. L. c. 266, § 28. He filed a motion to suppress his

statements on the ground that his Miranda waivers and subsequent

statements had not been voluntary. The motion was denied.

Following a seven-day trial, a Superior Court jury convicted the

defendant of murder in the first degree on theories of extreme

atrocity or cruelty and felony-murder premised on unarmed

robbery.

After the defendant's direct appeal was entered in this 7

court, we allowed his motion for psychiatric evaluation and

remanded the case to the Superior Court. Based on evidence from

a psychiatric evaluation obtained after trial, the defendant

filed a motion for a new trial. The trial judge denied the

motion after a two-day hearing. The defendant timely filed his

notice of appeal. He later filed a motion to reopen and

reconsider the motion for a new trial. A different judge denied

that motion, and the defendant timely filed a notice of appeal.

The defendant's direct appeal was consolidated with his appeal

from the denials of his motions for a new trial and for

reconsideration of that denial.

2. Discussion. The defendant's primary claim asserts

ineffective assistance based on trial counsel's failure to

obtain evidence of the defendant's childhood brain injuries and

counsel's failure to use such evidence to challenge the

defendant's mental capacity to commit murder or to waive his

Miranda rights and speak with officers voluntarily. The

defendant also raises a number of other issues, including

improprieties in jury voir dire and errors in jury instructions.

We have reviewed the instructions given and discern no

substantial likelihood of a miscarriage of justice. Nor do we

discern any such likelihood in the defendant's cursory claim 8

that the judge improperly conducted voir dire of the venire.4

a. Ineffective assistance of counsel. For claims

involving ineffective assistance, our standard of review under

G. L. c. 278, § 33E, is more favorable to a defendant than the

constitutional standard for ineffective assistance applicable in

noncapital crimes. See Commonwealth v. Fulgiam,

, cert. denied,

(2017). Contrast Commonwealth

v. Saferian,

(1974). Thus, when reviewing

ineffective assistance of counsel claims under G. L. c. 278,

§ 33E, we first determine "whether there was an error in the

course of the trial . . . and, if there was, whether that error

was likely to have influenced the jury's conclusion,"

Commonwealth v. Wright,

(1992), S.C.,

(2014), such that it created a "substantial likelihood

of a miscarriage of justice" (citation omitted).5 Fulgiam,

4 Because of the result we reach, the defendant's assertion concerning the disproportionality of his punishment for felony- murder is moot. For the same reason, we do not reach the defendant's claim regarding the elements of extreme atrocity or cruelty.

5 A motion judge in a capital case who reviews a claim of ineffective assistance of counsel must conduct "a discerning examination and appraisal of the specific circumstances of the given case" to determine whether counsel fell "measurably below that which might be expected from an ordinary fallible lawyer" and, "if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." See Commonwealth v. Saferian,

(1974). As stated, on appeal to this court, we review the defendant's claim under G. L. c. 278, § 33E, which provides a 9

supra.

i. Motion for a new trial. Represented by new counsel

posttrial, the defendant acquired medical records demonstrating

that he long has suffered from frontal brain injuries that

impair his cognition and behavior. The defendant also obtained

an expert witness, Dr. Montgomery C. Brower, who interviewed the

defendant and conducted a forensic evaluation of the defendant's

medical, educational, and criminal records. Based on these

materials, Brower opined that, at the time of the offense, the

defendant lacked the mental capacity to commit murder, or waive

Miranda rights and speak with officers voluntarily, due to the

defendant's intoxication, depression, and brain injuries.

Accordingly, the defendant filed a motion for a new trial.

After a two-day hearing, the trial judge denied the motion.

The defendant contends that trial counsel was aware of his

seizure disorder and unreasonably failed to obtain and review

his medical records. Had those records been obtained, the

defendant argues, counsel would have learned of the defendant's

standard of review more favorable to the defendant. We consider "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." See Commonwealth v. Wright,

(1992), S.C.,

(2014). The defendant requests that motion judges in capital cases be required to apply the standard of Wright, supra, rather than that of

We decline to adopt this request. 10

long-standing brain injuries, and would have been able to

consult an expert concerning the defendant's capacity to act

with conscious disregard for human life, as well as his capacity

to waive his Miranda rights and to speak with police

voluntarily.

We review the consolidated appeal of the defendant's

conviction and the denial of his motion for a new trial under

G. L. c. 278, § 33E. Commonwealth v. Moore,

(2018), citing Commonwealth v. Alicea,

,

(2013). Pursuant to Mass. R. Crim. P. 30 (b), as appearing in

(2001), a judge may grant a new trial "if it

appears that justice may not have been done." In reviewing the

denial of a motion for a new trial, we "examine the motion

judge's conclusions only to determine whether there has been a

significant error of law or other abuses of discretion"

(citation omitted). Commonwealth v. Ferreira,

(2019). See L.L. v. Commonwealth,

, 185 n.27

(2014).

Findings of fact made by a judge after an evidentiary

hearing on a motion for a new trial "will be accepted if

supported by the record." Commonwealth v. Walker,

(2005). The judge is the "final arbiter" on "questions

of credibility."

Where, as here, the motion judge was also

the trial judge, "we give 'special deference' to the judge's 11

findings of fact and the ultimate decision on the motion"

(citation omitted). Commonwealth v. Kolenovic,

(2015), S.C.,

(2017). If a motion for a

new trial is premised on a claim of ineffective assistance of

counsel, "the burden of proving ineffectiveness rests with the

defendant" (citation omitted). Id. at 673.

Although the defendant did not specifically inform his

attorney about his brain injuries, trial counsel was aware that

the defendant suffered from seizures. We agree with the motion

judge that "a history of seizures alone might alert defense

counsel" to the fact that medical records "would be worth

examining." We agree also that, had trial counsel subpoenaed

the defendant's medical records, counsel "rather easily" could

have discovered that the defendant suffered from long-term brain

injuries first sustained when he was a young child.

Armed with the defendant's medical records, counsel readily

could have obtained the services of a forensic psychiatrist to

assist the defense. Therefore, we conclude that trial counsel

erred in failing to consult with an expert regarding the

defendant's brain injuries. See Commonwealth v. Field,

(2017) (failure to consult expert constitutes

error when facts known to counsel raise "reasonable doubt" as to

defendant's mental condition).

Accordingly, the question is whether counsel's error likely 12

influenced the jury's verdict. See Wright,

.

A. Capacity to commit murder. At the time of the

defendant's trial, a conviction of felony-murder required proof

of three elements: first, that the defendant committed or

attempted to commit a felony with a maximum sentence of life

imprisonment; second, that the killing occurred during the

commission or attempted commission of that felony; and, third,

that the felony was inherently dangerous, or that the defendant

acted with conscious disregard of human life. See Model Jury

Instructions on Homicide 15-16 (1999).6 In his final charge, the

judge properly instructed the jury on the elements of felony-

murder. As to the third element, the judge instructed only on

conscious disregard of human life, and the jury convicted the

defendant on that basis.

In the context of the defendant's motion for a new trial,

Brower opined that, at the time of the offense, the defendant

had been incapable of consciously disregarding the risk to human

life due to intoxication, depression, and "traumatic brain

injury," which resulted in "impulsivity, lack of insight,

failure to anticipate the consequences, and other impairments"

6 In a case tried today, the requirements to establish felony-murder differ and require proof of malice. See Commonwealth v. Brown,

(2017), cert. denied,

(2018) (prospective convictions of felony-murder require proof of malice); Model Jury Instructions on Homicide 59-60 (2018). 13

that made him "essentially unable to reason through or

anticipate or weigh the consequences of his actions at the

time." The motion judge found portions of Brower's testimony,

namely his discussion of the defendant's brain injuries,

"credible" and "convincing," and "assume[d] that a jury would

also." The judge found other portions of Brower's testimony --

the degree of the defendant's intoxication, depression, and

cognitive ability -- "without support," based on "faulty

information," and "undermined" by a "lack of balanced

evaluation." The judge ultimately concluded that Brower's

opinion would not have altered the jury's verdict with respect

to the conviction of felony-murder.

Although the judge did not decide whether Brower's

testimony would have had an effect on the jury's verdict with

respect to the theory of extreme atrocity or cruelty, when, as

here, a conviction of murder in the first degree is based on

more than one theory, "the verdict remains even if only one

theory is sustained on appeal." Field,

.

As to Brower's opinion concerning the defendant's asserted

intoxication, the judge found that the facts at trial

demonstrated that the defendant was not inebriated at the time

of the crash. The defendant had smoked marijuana and consumed

forty ounces of beer at approximately 11:30 A.M. that day. He

did not "black out." Rather, at approximately 2 P.M., the 14

defendant left his cousin's apartment and began walking from

Beverly to Lawrence. At approximately 7:30 P.M., the defendant

stole the victim's SUV. The judge thus determined that the

crash occurred approximately eight hours after the defendant

last had consumed marijuana and beer, and that the defendant had

not been intoxicated at that point. While one officer noted

that, when he was arrested, the defendant "exuded a slight odor"

of alcohol and his eyes were "glassy," the judge's finding that

the defendant was not intoxicated is not inconsistent with the

record. See Commonwealth v. Candelario,

(2006); Walker,

.

In addition, because Brower's opinion concerning the

defendant's depression was premised primarily on observations

that Brower made during his interview of the defendant nearly

six years after the offense, and while the defendant was serving

a life sentence, the judge concluded that Brower's opinion shed

little light on the defendant's state of mind at the time of the

offense.7 See Commonwealth v. Foster,

(2015) ("the defendant's mental state in response to his

7 Although the defendant's educational and medical records indicate that he experienced depression and physical and mental traumas in his childhood, and attempted suicide multiple times, the records also suggest that the defendant's depression might have abated as an adult. The medical record most contemporaneous to the events at issue, from the Department of Corrections, indicates that the defendant did not require mental health services at that point. 15

incarceration does not bear on his mental state at the time of

the killing"). Moreover, at the hearing on the motion for a new

trial, Brower agreed that, to the extent that the defendant had

been depressed on the day of the offense, any depression did not

meaningfully contribute to his state of mind at that time. We

conclude that the judge's finding as to the defendant's

depression is not inconsistent with the record. See Walker,

.

The more difficult question is whether Brower's opinion

with respect to the defendant's brain injuries was likely to

have influenced the jury's verdict. In 1978, when the defendant

was four years old, a motor vehicle hit him, fracturing his

skull and leg, causing brain damage, and requiring him to be

hospitalized for at least six weeks. After the accident, the

defendant engaged in impulsive and self-harmful behaviors,

including setting fire to his own bed; swallowing shoe polish,

furniture polish, and fingernail polish; and eating paint. He

also was reported to have experienced lead poisoning. He had an

individual education plan and received special services in

school; he demonstrated repeated difficulties with impulse

control.

In 1987, when the defendant was a young teenager, he again

was struck by a vehicle, this time while riding his bicycle.

The accident left the defendant unconscious for two days and 16

caused him to suffer additional brain damage. An

electroencephalogram conducted in 1988 demonstrated abnormal

rhythmic spikes and slow wave activity over the right frontal

polar region of the defendant's brain. This abnormal brain

activity was observed both while the defendant was awake and

asleep. The patterns were determined to represent focal

pathology. Moreover, computerized tomography scans conducted in

1987 and 1991 showed areas of low density in the right frontal

and left front parietal cerebral regions of the brain,

representing an "old injury" with "atrophy." Although further

clinical examination was recommended, it does not appear that

any was completed.

After the 1987 accident, the defendant "exhibited

noticeable changes in behavior," began to experience seizures,

and struggled to control his impulses and his conduct. He was

diagnosed with a seizure disorder, and he presented with

antisocial qualities, learning disabilities, and poor judgment.

He also evinced impatient behaviors, such as "want[ing] things

or results right away." In addition, the defendant stole from

his foster family, was consistently disruptive at school,

urinated on the floor, and urinated in a vase before pouring the

urine onto the floor at a "Dare Mentor home." In 1990, the

defendant was "functioning in the 'Borderline' range of

intelligence," or "at about the 5th percentile overall," with 17

some areas "below the 1st percentile" and other areas in the

"low average" range.

The defendant continued to experience seizures into

adulthood, was easily aggravated, and struggled to control his

temper. As an adult, the defendant remained typically "slow to

respond" to questions, needed "time to retrieve detailed

information," and generally provided laconic verbal answers.

Although, as an adult, the defendant generally tested

academically at "low elementary school" levels, his spelling and

oral word recognition abilities were at an "eighth grade level"

and a "[h]igh school level," respectively. The defendant also

tested at a high school level for such things as visual memory,

visual reasoning, and motor functioning. The defendant

presented considerable difficulty, however, with "executive

functioning," testing in the "mentally handicapped range" for

such things as self-monitoring, attentional control, idea

generation, and problem solving. The defendant also tested in

the mentally handicapped range in a number of verbal skills,

such as when attempting to recall information told to him by

others.

Based on the defendant's medical history, and his own

observations of the defendant, Brower opined that the

defendant's "impulsivity, lack of insight, failure to

anticipate . . . consequences, and other impairments related to 18

his brain injury made him essentially unable to reason through

or anticipate or weigh the consequences of his actions at the

time."

We turn to the record of the defendant's mental capacity at

the time of the offense, bearing in mind Brower's opinion and

the defendant's medical record. Before he stole the victim's

SUV, the defendant peered into several vehicles, settling on the

victim's SUV because he could see the keys inside it. The

defendant said that he knew the vehicle did not belong to him

but chose to steal it anyway. He explained that he quickly

"tried to get away" with the SUV because after "get[ting] in the

car that's not [his], . . . it's only natural that [he was]

going to think that people [were] going to be watching" him. He

also said that Kitchen, his reentry case manager, would be upset

with him when she learned that he had caused the victim's death

by stealing and crashing the victim's SUV, indicating that he

understood his conduct had consequences.

The defendant refused a sobriety test when he was in police

custody, "figur[ing] that it wouldn't do [him] any good to take

one" after he had been drinking.8 He realized that a condition

of his probation required him to abstain from alcohol, and he

8 Because trial counsel argued that the defendant was intoxicated at the time of the crash, the judge concluded that the defendant's testimony about refusing a sobriety test properly was admitted to show his state of mind. We agree. 19

was concerned about the likely ramifications of taking the

sobriety test after drinking beer.9 Brower opined that the

defendant's statements demonstrated "self-preservation

thinking," and showed that the defendant was aware there likely

would be consequences for his actions. Brower also testified

that, when the defendant initially told the police that he did

not remember stealing or driving the victim's SUV, the defendant

was "not credible," and again was engaging in self-preservation

thinking. According to Brower, this demonstrated that the

defendant understood that there would be consequences for what

he had done, and that he was attempting to escape those

consequences.

Taking into account the defendant's brain injuries and his

cognitive impairments, the judge found that the defendant knew

the victim was clinging to the exterior of the SUV, and that the

victim had banged on the SUV window and yelled for the defendant

to stop. Aware that the victim was on the SUV, the defendant

chose to accelerate down Route 114, swerving through traffic in

an attempt to "shake" the victim from the vehicle.

On this record, the judge did not abuse his discretion in

finding that the defendant possessed the factual knowledge and

9 The defendant explained that he was on probation as a result of a previous offense during which he attempted to steal a vehicle and nearly hit a police officer with that vehicle before stalling and crashing. 20

the intellectual capacity to comprehend the clear danger posed

to the victim. Accordingly, we discern no error in the judge's

conclusion that expert testimony would not have altered the jury

verdict as to felony-murder.

B. Voluntariness. The defendant also argues that he

received ineffective assistance based on trial counsel's failure

to obtain an expert witness to challenge the voluntariness of

the defendant's Miranda waivers and his subsequent statements to

police. We conclude that the judge's decision did not

constitute a clear error of judgment such that it fell outside

the range of reasonable alternatives. See L.L.,

n.27.

A defendant who suffers from a cognitive disability may

waive his or her Miranda rights and provide statements to police

so long as he or she does so voluntarily. See Commonwealth v.

Zagrodny,

(2004). "The voluntariness of

the waiver on the basis of Miranda and the voluntariness of the

statements on due process grounds are separate and distinct

issues but they are both determined in light of the totality of

the circumstances and they share many of the same relevant

factors" (citation omitted). Commonwealth v. Woodbine,

(2012). A defendant must voluntarily, knowingly,

and intelligently waive his or her Miranda rights after being

informed of those rights. See Commonwealth v. Clark,

(2012). A defendant's subsequent statements must be

made of a rational intellect and a free will. See

As stated, Brower opined that the defendant was unable

voluntarily to waive his Miranda rights or voluntarily to speak

to officers because he was intoxicated and depressed, and had

long-standing brain injuries at the time of the crash. The

judge disagreed; he found it "highly unlikely" that depression

rendered the defendant incapable of voluntarily waiving his

Miranda rights or speaking intelligently and knowingly with

officers, and discerned "no evidence of intoxication." For the

reasons discussed, we conclude that the record supports the

judge's findings with regard to the absence of intoxication and

depression at the time of the offense.

The judge who heard the motion for a new trial also

concluded that the judge who conducted the hearing on the motion

to suppress had evaluated carefully the conduct of the police

during the interview. The motion for a new trial judge

determined that the defendant voluntarily waived his Miranda

rights prior to speaking with officers,10 and that the

10The defendant argues that one of the interviewing officers trivialized the significance of the defendant's Miranda rights by treating them as a nuisance to be rushed through. As with the prior administrations of Miranda warnings, the motion judge found that this administration was legally sufficient. The audio-visual recording supports this finding; it reveals 22

defendant's subsequent statements had been made of a free will

and a rational intellect. In his decision on the motion for a

new trial, the judge noted that the defendant was "cogent" and

that his responses had been "appropriate, throughout." The

judge also found that the defendant's conduct during the

interview suggested "careful calculation on his part." This

conclusion is consistent with Brower's testimony that the

defendant intentionally modified his statements to avoid harmful

personal consequences, and knowingly lied to police in an

attempt to avoid the repercussions of his conduct.

As noted, the record indicates that the defendant often is

slow to comprehend and respond to questions. Brower testified,

however, that when provided sufficient time to think, the

defendant is capable of reasoning and considering the

consequences of his actions. We have reviewed an audio-visual

recording of the interview,11 which demonstrates that the

that the officer recited the Miranda rights in a clear voice, provided the defendant with a written copy of those rights, allowed the defendant ample time to consider and sign the waiver form, and verbally verified that the defendant understood the rights and wished to speak with officers.

The defendant asserts also that his verbal waiver was equivocal. Even assuming this statement is accurate, the defendant unambiguously agreed to speak with the officers only moments thereafter, and again agreed to speak with police later during the interview.

11The defendant consented to the recording of the interview. 23

officers spoke calmly and slowly when asking the defendant

questions. They did not rush the defendant to answer those

questions, and allowed adequate time for him to consider the

questions and proffer his responses.

In addition, the defendant maintains that, during the

interview, the officers used tactics that overpowered his will,

and that his statements to Brower nearly six years later

indicate that the defendant apathetically had "abandon[ed]

himself to fate" during the interview. We have reviewed the

entire record and discern no appreciable basis to conclude that

the police employed tactics that overpowered the defendant's

will or that the defendant abandoned himself to fate.

ii. Motion to reopen and reconsider motion for a new

trial. In June, 2006, one of the interviewing officers spoke by

telephone with Kitchen, the defendant's reentry case manager,

and documented the conversation with handwritten notes. Kitchen

told him that the defendant had been struck by vehicles twice

when he was a child. In addition, Kitchen said that she

suspected the defendant suffered from a "head injury." Kitchen

also told the officer, however, that the defendant was "not

mentally impaired" and had "no retardation." Although the

officer and Kitchen initially scheduled a time to complete a

more formal interview, it was rescheduled multiple times.

On May 18, 2007, three days before trial, the officer again 24

interviewed Kitchen; this time, he recorded the conversation.

Kitchen reiterated that the defendant twice had been struck by

vehicles when he was a child. Because the defendant often was

slow to respond to questions, Kitchen said that she suspected

the defendant's childhood accidents had caused him to incur

permanent brain injuries. Kitchen also noted that she had

attempted to schedule an appointment for the defendant to be

examined by a neurologist. The defendant never saw a

neurologist, however, because he was arrested prior to the

scheduled appointment. In any event, Kitchen told the officer

that she did not believe the defendant suffered from mental

impairment or "retardation," but that she feared that he

suffered from a physical brain injury. She also observed that,

when provided sufficient time to think, the defendant understood

what others said to him.

Although the interviewing officer did not share the initial

Kitchen interview with the prosecutor, he did disclose the

second interview. On May 21, 2007, prior to jury empanelment,

the prosecutor provided defense counsel with a compact disc

containing an audio recording of that interview. Defense

counsel did not listen to the recording at that point, and did

not request a delay in empanelment or a continuance in order to

review the recording. The recording was not presented to the

jury, and Kitchen was not called as a witness. 25

The defendant's appellate counsel was unaware of either

Kitchen interview until March 2017, when the Commonwealth

provided defense counsel with the interviewing officer's

handwritten notes from the first interview and an audio

recording of the second interview. Based on the content of

those interviews, the defendant filed a motion to reopen and to

reconsider the motion for a new trial. He argued prejudice as a

result of the Commonwealth's late disclosure, and ineffective

assistance due to trial counsel's failure to review the

recording of the second Kitchen interview. After a hearing at

which Kitchen testified, a different judge denied the motion.

The judge found that the second Kitchen interview had been

disclosed to defense counsel prior to trial, and also that it

was largely duplicative of the evidence considered by the judge

who had denied the motion for a new trial. The defendant timely

filed a notice of appeal.

Before us, the defendant summarily reasserts his prior

arguments. The motion judge is correct that the Commonwealth

"should have disclosed the first Kitchen interview long before

trial," because the interview provided potentially exculpatory

information that the Commonwealth was constitutionally required

to disclose. We also agree with the judge, however, that, by

disclosing the second Kitchen interview, the Commonwealth shared

"all of the information that [the officer] had learned the first 26

time he spoke with Kitchen." Noting that delay alone does not

necessarily constitute prejudice, see Commonwealth v. Molina,

(2009), the judge rejected the defendant's

argument on that ground. We discern no error in the judge's

ruling.

Moreover, as stated, trial counsel was provided with a

recording of the second interview prior to jury empanelment, but

chose not to seek a continuance of trial or a delay of

empanelment. Those decisions are not fairly attributable to the

Commonwealth. In these circumstances, the last-minute

disclosure of the second Kitchen interview, although improper,

did not itself create a substantial likelihood of a miscarriage

of justice. Accordingly, there was no error in the decision to

deny the motion to reopen and reconsider the motion for a new

trial.

b. Review under G. L. c. 278, § 33E. The scope of our

review under G. L. c. 278, § 33E, is broader than the scope of

review employed by a trial or motion judge, because we may

consider the entirety of the appellate record, including

evidence that was not before any one judge. Kolenovic, 478

Mass. at 209-210. Our duty is not to sit as "a second jury"

but, rather, to consider "whether the verdict returned is

consonant with justice" (citation omitted). Commonwealth v.

Berry,

(2014). After such consideration, we 27

"may, if satisfied that the verdict was against the law or the

weight of the evidence, or because of newly discovered 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, § 33E. See, e.g., Commonwealth v.

Vargas,

(2016).

Here, the jury concluded that the defendant was culpable of

having committed murder, and we do not upset the jury's finding

on that issue. In the circumstances of this case, "there is no

question of reducing the verdict below murder" (citation

omitted). See Berry,

. Rather, the "less

drastic" question presented is whether there is ground to reduce

the verdict from murder in the first degree to murder in the

second degree (citation omitted).

We conclude that there

is.

As stated, the defendant sustained two serious brain

injuries as a child, which produced long-term brain damage. The

injuries caused abnormal brain functioning that inhibits the

defendant's ability to control his impulses. The defendant's

traumatic brain injuries prevented him from restraining his

impulses such that, at the time of the offense, his conduct was

driven by his incapacity for self-monitoring or self-control.

These uncommon facts were not presented to the jury. In such

unique circumstances, a verdict of murder in the second degree 28

is more consonant with justice than is a verdict of murder in

the first degree. See Commonwealth v. Colleran,

(2008) ("We are left with the clear sense that this

defendant's conduct, although culpable, was very much driven by

[his] mental condition"). See, e.g., Berry,

-

774. Compare Commonwealth v. Whitaker,

(2011) (declining to reduce verdict where "defendant's

psychological diagnosis, while significant, does not reach [a

sufficient] level of severity, and there is no evidence that it

was intertwined with the victim's killing").

3. Conclusion. The judgment of guilt of murder in the

first degree is vacated and set aside. The matter is remanded

to the Superior Court for entry of a verdict of guilty of murder

in the second degree, and for resentencing.

So ordered.