NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-13552
COMMONWEALTH vs. LATARSHA L. SANDERS.
Plymouth. March 6, 2026. - August 6, 2026.
Present: Budd, C.J., Gaziano, Kafker, Georges,
& Wolohojian, JJ.
Homicide. Criminal Responsibility. Mental Health. Evidence,
Medical record, Hospital record, Exculpatory, Expert
opinion, Hearsay, Relevancy and materiality, Argument by
prosecutor. Witness, Expert. Practice, Criminal, Hearsay,
Argument by prosecutor, New trial, Capital case.
Indictments found and returned in the Superior Court Department on March 30, 2018.
The cases were tried before William F. Sullivan, J.
Robert F. Shaw, Jr., for the defendant.
Melissa W. Johnsen, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. In early February 2018, the defendant stabbed
to death her two sons, eight year old Edson "Marlon" Brito and
five year old La'Son Brito. The victims were found in separate
bedrooms, swaddled in sheets and blankets, having suffered
2
multiple, horrific knife wounds. There is no doubt the
defendant committed these incomprehensible crimes. The sole
issue before a Superior Court jury was whether she lacked
criminal responsibility. After trial, the jury convicted the
defendant of two counts of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty.
On appeal, the defendant contends that the judge impeded
her ability to present fully a criminal responsibility defense
by excluding relevant medical records, admissible under G. L.
c. 233, § 79 (§ 79), documenting postarrest diagnoses or
treatment of mental illness. The defendant argues also that
several statements made during the prosecutor's closing argument
were improper and prejudicial. Further, she requests that we
exercise our extraordinary authority, pursuant to G. L. c. 278,
§ 33E, to order a new trial or reduce the verdicts.
For the reasons that follow, we hold that the exclusion of
the defendant's relevant medical records relating to the
diagnoses or treatment of mental illness constituted prejudicial
error, and as a result, the defendant is entitled to a new
trial.
1. Background. a. Facts. We summarize the facts the
jury could have found, reserving certain details for later
discussion. In February 2018, the forty-three year old
3
defendant lived in a third-floor apartment in Brockton with
Marlon, La'Son, and her fifteen year old daughter, Tamia Sanders
Brito. The defendant's eldest daughter, Shalea Sanders, also
lived in Brockton with children of her own. The victims'
father, Edson Brito, did not live with the family. The
defendant's mother, Erlene Sanders, lived in Randolph.1
In addition, the defendant had a seventeen year old son,
Kadeem Sanders Alfred. Following a disagreement with his mother
over household expenses, Kadeem moved out of the defendant's
apartment to live with his girlfriend. Although she took away
his key, the defendant told Kadeem that he could move back in at
any time. Kadeem's father, Ixer Alfred, lived in Fall River,
and was no longer close to the defendant.
Prior to February 2018, the defendant, by all accounts, was
a loving, caring, and affectionate mother. She "put all of [her
children] first," and had never been violent with Tamia, Kadeem,
Marlon, or La'Son.
The defendant did not have a documented history of mental
illness prior to the murders, a fact emphasized by the
Commonwealth. She had, however, become obsessed with a secret
1 For the sake of clarity, we refer to the family members by their first names. We use the victim's name Marlon (as did his family) to distinguish him from his father. La'Son's name is spelled in various ways throughout the record; we refer to him as "La'Son" based on information in the record that suggests this is the correct spelling.
4
society called "the Illuminati," fueling her interest by
watching videos posted on the Internet "[twenty-four] hours a
day." According to the defendant, the Illuminati ruled the
world by "sacrific[ing] human beings" and killed by means of
"chemical bombs." The defendant was fearful that the Illuminati
were "out to get" her and her children. Responding to this
perceived threat, on an unspecified date, the defendant "rounded
up the kids" and fled to Connecticut. She also feared voodoo, a
practice she associated with Kadeem's father, Ixer.
The defendant killed her children sometime between February
3 and 5, 2018. On Friday, February 2, the defendant and her two
young sons spent the night with her mother, Erlene, in Randolph.
On Saturday morning, February 3, the defendant returned to her
Brockton apartment with the boys to retrieve clothing and drove
back to Erlene's house, accompanied by Tamia. Later that day,
the defendant brought Marlon and La'Son to a Taunton hospital
due to concerns that they had contracted the flu. Despite plans
to pick up Tamia at Erlene's house on Saturday, the defendant
arrived on Monday morning, February 5, by herself.
By then, the defendant's appearance and behavior had
changed. She told Tamia that she needed to protect Marlon and
La'Son from their grandmother and her older sister Shalea
because she feared that they would poison the children. Tamia
observed that the defendant's clothes were disheveled, with
5
"[o]ne pants leg . . . up and one down." The defendant's eyes
appeared dark, her lips dry, and her breathing heavy and
abnormal. She spoke in a "mean" and "[s]tatic" voice, which
Tamia characterized as "very forensic." Of further concern, the
defendant slapped her mother across the face, something Tamia
had never before witnessed.
Leaving her mother's house, the defendant drove her car,
accompanied by Tamia, to Shalea's apartment. During the drive,
the defendant explained to Tamia that they were going to "beat
[Shalea] up." Tamia, frightened by the defendant, sat in the
back seat. Once there, Tamia ran from the car to warn her
sister. The defendant lunged at and hit Shalea. Yelling at her
mother to stop, Tamia was eventually able to break them up. The
defendant then urged Tamia to come home with her because she was
not going to "do[] it alone." Tamia refused.
On Monday, February 5, at 12:10 P.M., emergency medical
technicians (EMTs) were dispatched to the defendant's apartment
building for a suspected seizure. EMTs found the defendant
seated on the porch rocking back and forth under a blanket.
After assessment, the EMTs placed her on a stretcher for
transport to a Brockton hospital with a chief complaint of
behavioral issues. The defendant began to scream, flail her
arms, kick her legs, and throw herself back and forth. Asked
6
what was wrong, the defendant responded that "Akeem" (the name
heard by the EMT) and his father were trying to kill her.
Police officers, also responding to the apartment building,
searched the defendant's home. They discovered La'Son's body
tucked into bed in a bedroom adjacent to the kitchen. He was
"motionless," "cold," and "stiff," with his eyes "glazed over,"
indicating he had probably been "deceased for quite some time."
The five year old was covered in blankets and a Spider-Man
bathrobe with an elastic bandage wrapped tightly around his
neck. He suffered blunt force injuries to his face and back,
along with severe stab wounds to his neck and chest that
penetrated his external jugular vein, cervical spinal cord,
heart, lungs, diaphragm, and liver. In addition, there were
postmortem injuries consisting of over eighty superficial
incised abdominal wounds and facial skin peeling, which was
possibly caused by the rubbing of a corrosive chemical, such as
bleach. A candle, broken into two pieces, had been shoved down
La'Son's throat, deep into the esophagus.
On the floor of another bedroom, officers located Marlon's
lifeless body wrapped in several layers of bedding with his bare
feet sticking out. He had suffered an "overwhelming amount" of
sharp force injuries to the neck -- transecting the carotid
artery, jugular veins, trachea, and spinal cord. He also had
stab wounds to the chest cavity that fractured ribs and
7
punctured the heart and lungs. Like his younger brother, Marlon
had been deceased for "a little while."
There was also evidence that the defendant had cleaned the
apartment after killing Marlon and La'Son. Police officers
noticed a strong odor of cleaning fluids on entry and found
bottles of ammonia and bleach on the kitchen table near a
bloodstained mop and a cardboard box filled with bloody bedding.
In addition, there was a surprising absence of blood near the
bodies considering the number and extent of sharp force wounds
inflicted on both victims.
On further search of the apartment, officers discovered a
large kitchen knife, visibly bloodstained (with Marlon's blood),
in the kitchen sink. In the defendant's bedroom, officers
flipped a mattress, revealing that the underside was
bloodstained (again with Marlon's blood). Hidden under the
mattress were two more knives; on one of these knives, trace
amounts of La'Son's blood were later detected. The bathroom
sink, floor, and bathtub were also stained with the victims'
blood.
Meanwhile, the defendant arrived at the hospital emergency
department at 1:10 P.M. with signs of emotional distress,
including moaning, yelling, and expressing fear of "something or
someone." Dr. Erik Deede, the attending physician, diagnosed
the defendant with anxiety and stress reaction. He noted, "she
8
does not appear to be psychotic." To calm her agitation, Deede
administered a sedative (lorazepam), which reduced her wailing
and screaming.
At 1:15 P.M., State police Sergeant Shaun Bellao and
Brockton police Detective Ernie Bell interviewed the defendant
at the hospital. In the thirty-five minute interview, the
defendant claimed that her eldest son Kadeem and his father,
Ixer, had stabbed the victims. She insisted, "I didn't
participate in nothing. I was trying to stop it." Responding
to police allegations, she posed the question, "Why would I hit
the children? They're my children." The defendant detailed (in
a disjointed manner) how Kadeem and Ixer arrived at her
apartment at some point that weekend. Ixer, armed with a knife,
stabbed La'Son "all over," and Kadeem stabbed "his own
brother[]" Marlon. She attempted to stop them by jumping on
Ixer's back but was hit on the back of her head with a frying
pan. She left the apartment to inform police, driving by the
police station four times, but did not go inside or call because
she was scared, as there were "people" following her. When she
returned to the apartment, the doors were open. She found
Marlon and La'Son in different bedrooms. The boys "wouldn't get
up." According to the defendant, Ixer killed them because he
was angry with her for refusing to let him claim the victims as
dependents on his tax return.
9
The interview ended at 1:50 P.M. Deede did not see a need
for additional medical workup or treatment. At 2:26 P.M., he
discharged the defendant to police custody because he had been
assured that she would be in a safe place, unable to hurt
herself or others, and that, if released, she would return to
the hospital for a mental health evaluation.
Thereafter, officers transported the defendant to the
Brockton police department for an interview with Bellao and
Brockton Detective Santiago Cirino. In this one hour and fiftyminute interview, which was audio-visually recorded, the
defendant continued to claim that Ixer and Kadeem went to her
apartment uninvited, attempted to kill her, and murdered the
boys. According to the defendant, Ixer stated, "I'll show you
something." He then retrieved a knife and started stabbing
Marlon. As this was happening, the defendant was being held
down. She was told, "You're just going to watch. You're going
to watch this." She denied stabbing her children, insisting,
"Nothing would make me want to do that." Again, she claimed
that this was a fight with Ixer over "the income tax."
Questioned about Kadeem's motive, the defendant offered that "he
was always angry."
Pressed by the investigators to "[t]ell [them] what
happened to those babies," the defendant responded, "All right,
I'll tell you." She proceeded to provide the officers with
10
multiple jumbled and incoherent versions of the events.
Although difficult to follow, the defendant explained that the
children were murdered as part of a "ritual." She stated that
she did not know who stabbed Marlon, but "the boy had to be done
yesterday." The defendant attributed the killing to "[a] couple
of people" on her Facebook social media page. The defendant
claimed Ixer initiated the ritual. She denied participation,
stating, "I wouldn't do that. I was there to watch." A short
time later, the defendant admitted that she stabbed Marlon
because of "that voodoo stuff." The defendant explained that
she stabbed both children but "[n]obody was supposed to be
getting hurt," as Ixer assured her that he "just wanted a little
blood from them." The ritual, she stated, is performed to "get
to the afterlife" or achieve "eternal life." The defendant did
not understand the ritual but followed the instructions of "bad
people" communicating to her through text messages. The ritual
is somehow connected to the Illuminati, a group she described as
"the enlightened people." She learned through videos that
stabbing her children would make the Illuminati "happy."
The defendant stated that she "only killed one baby,"
Marlon. He was stabbed in the legs and chest with a kitchen
knife. She admitted to then stabbing La'Son in the chest
because she had "failed" with Marlon. Afterward, she bathed the
children, gave them rice and ginger ale, wrapped them in a
11
"huge" heating pad and "tried to fix them up and make sure they
[were] still living."
After the interviews, officers searched the defendant's
vehicle and recovered a yellow notebook. In the notebook, the
defendant's listed goals included writing books, making money
through an online crowdfunding page, and becoming famous. The
defendant also wrote about Satan and evil, incorporating the
word into the letter "E" in Edson Marlon's name, and using the
phrases "evil son," "evil's living life large," and the "devil's
everywhere run save."
Following her arrest, in several recorded jailhouse
telephone calls between the defendant and members of her family,
the defendant expanded upon some of these ideas. For example,
in March 2018 calls, the defendant mentioned her plan to write a
book and repeatedly described herself as evil.
b. The defendant's case. At trial, in support of her
defense that she lacked criminal responsibility, the defendant
offered the expert testimony of Dr. Thomas Deters, Ph.D., a
clinical neuropsychologist affiliated with McLean Hospital.
Deters evaluated the defendant to determine her psychiatric
condition. The evaluation included two interviews, which were
spaced one month apart and lasted a combined nine hours, along
with seven hours of neuropsychological testing and a review of
thousands of pages of postarrest mental health treatment
12
records. The medical records were obtained principally from her
incarceration at the Massachusetts Correctional Institution,
Framingham (MCI-Framingham), and her commitment pursuant to
G. L. c. 123, § 18 (a), to the Worcester Recovery Center and
Hospital (WRCH). Deters also reviewed a report filed with the
court by Dr. Stacey Fiore, Psy.D., a psychologist hired by the
Commonwealth and not called to testify.2
Deters opined that the defendant was "grossly psychotic" at
the time she killed her children, diagnosing her with
"schizophrenia spectrum and other psychotic disorders." He
explained that psychosis can be idiopathic (of unknown origin)
or caused by certain medical conditions, such as hyperthyroidism
or vitamin D deficiency -- both of which the defendant had.
2 Fiore diagnosed the defendant with mental illness "best characterized as Schizophrenia, Paranoid Type." In her opinion, the "totality of information" indicated that "prior to, and after the offenses, [the defendant] was experiencing severe symptoms of mental illness" and that, "[g]iven the nature of her illness and type of symptoms she exhibited (i.e., fixed delusional beliefs), . . . it is highly likely that she was also symptomatic around the time of stabbing her sons." Fiore, citing conflicting information, was unable to form a definitive opinion whether the defendant lacked substantial capacity to appreciate the wrongfulness of her actions or conform her behavior to the requirements of the law. Fiore wrote that the defendant's thinking "departed from reality"; she was fixated on conspiracy theories and held delusional, paranoid beliefs. Moreover, "the fact that [the defendant] placed a candle in her son's throat is bizarre in nature." Fiore, however, noted that the defendant's attempts to destroy evidence, and blame Kadeem and Ixer, indicated an appreciation of the wrongfulness of her actions.
13
Deters found evidence of psychosis from the defendant's notebook
entries, the gruesome injuries she inflicted on Marlon and
La'Son, and the "bizarre" conditions in which she left the
bodies (including her insertion of a candle into La'Son's
throat).
He explained that the defendant's attempts to clean the
crime scene and deceive police officers did not change his
opinion because symptoms of psychosis may wax and wane. Given
the amount of time the defendant was present inside her
apartment over the weekend, she may have become more lucid,
realized what she had done, and attempted to cover it up. In
conclusion, he testified to a reasonable degree of professional
certainty that, as a result of mental disease, the defendant
lacked substantial capacity to appreciate the criminality of her
conduct and to conform her conduct to the requirements of the
law.
c. Procedural history. On March 30, 2018, the defendant
was indicted on two counts of murder in the first degree, in
violation of G. L. c. 265, § 1.3 In December 2020, the defendant
The defendant was also indicted on one count of willfully
3
misleading police officers in violation of G. L. c. 268, § 13B. After the jury found the defendant guilty on this count, the trial judge sentenced the defendant to a State prison term of from nine to ten years, to be served concurrently with the murder sentences.
14
filed notice of her intent to rely on a defense of lack of
criminal responsibility. Following a nine-day trial in the
Superior Court, on December 27, 2022, the jury convicted the
defendant of two counts of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty. On each count, the judge imposed concurrent mandatory
sentences of life imprisonment without the possibility of
parole. Thereafter, the defendant filed a timely notice of
appeal.
2. Discussion. The defendant raises two claims of legal
error. First, she contends that the judge erred in excluding
the entirety of her postarrest medical records offered in
evidence under § 79. Second, she argues that the prosecutor's
closing argument exceeded the bounds of proper argument by
injecting prohibited personal opinions, inflaming the jury's
emotions, and misstating evidence.4
a. Exclusion of mental health records. i. Procedural
history. At a pretrial hearing on December 1, 2022, defense
counsel indicated that he intended to introduce medical records
4 Because of the result we reach, we need not address the defendant's request that we exercise our extraordinary authority under G. L. c. 278, § 33E, to reduce her convictions of murder in the first degree.
15
obtained from MCI-Framingham and WRCH.5 He reasoned that because
the defense expert, Deters, would be referring to the content of
those medical records, he should be permitted to introduce the
records "in case the jury want[ed] to look at [them]." The
judge expressed concern about requiring the jury to sift through
thousands of pages of medical records and asked counsel "to
figure out the best way to . . . highlight" important records.
Defense counsel indicated that he would be "perfectly happy" as
long as Deters could say, "I looked at the report of Dr. [Soand-So] from Framingham. That was part of the basis for my
opinion." The judge allowed the prosecutor additional time to
review the records and raise any objections.
In his opening statement, defense counsel previewed
portions of the MCI-Framingham and WRCH medical records. He
emphasized that the records documented the defendant's "episodes
of psychosis" and the facilities' attempts to "stabilize[] her
from her insanity."
5 Previously, in January 2021, the parties filed a joint request for "all records, including medical," concerning the defendant that were kept by MCI-Framingham and WRCH from February 4, 2018, to the present, subject to a protective order. After the request was granted and summonses were issued to the respective keepers of records, in February 2021, MCI-Framingham and WRCH submitted the requested medical records to the court. In November 2022, one month before trial, a judge modified the protective order to allow counsel to copy "presumptively privileged records."
16
On the fifth day of trial, defense counsel, anticipating
that the prosecutor might object to portions of Deters's direct
examination referring to the contents of the defendant's medical
records, raised the issue whether the medical records were
admissible. At this time, defense counsel only referenced the
WRCH records in his request. He stated, "If the reports are
marked as exhibits . . . it's part of the record and therefore
Dr. Deters can testify in terms of what's in those reports that
affected his opinion . . . ." Later that day, defense counsel
argued that Deters should be permitted to refer to properly
admitted "record[s] in evidence," and noted that he was not
required to call the treating physicians to the witness stand.
The judge provided the prosecutor with an opportunity to
identify inadmissible portions of the medical records.
The next day, the prosecutor filed a motion in limine to
limit Deters's testimony and exclude "irrelevant" medical
records documenting the defendant's postarrest mental health
history. The prosecutor argued, "[The defendant's] mental
health status almost two years after the murders is not an
appropriate or relevant base for her mental health status at the
time of the murders." She also raised a hearsay objection.
The judge held a hearing on the Commonwealth's motion in
limine to limit the defense expert's testimony. In brief, the
Commonwealth objected to the admission of medical records from
17
"an irrelevant time frame" and "inadmissible hearsay" in the
form of statements by the defendant's mother contained within
the medical records. Defense counsel moved to introduce the
medical records that had been subpoenaed to the court from MCIFramingham and WRCH. He argued that Deters would testify that
"those records were significant for him, informing his
professional opinion, and that's highly admissible." Defense
counsel insisted, "I've got the right to introduce records that
were properly subpoenaed to the Clerk's Office." The judge
raised a concern about allowing an expert witness to testify on
direct examination to potentially unreliable information
contained in medical records.
While deferring a final ruling, the judge rejected the
Commonwealth's argument that the medical records "are too far
removed" from the time of the murders to be relevant to criminal
responsibility. He ruled that, assuming Deters relied on the
records to formulate an opinion, and if "there was no other
objection," he would allow the records in evidence.
The next day, the judge denied the defendant's motion to
admit the MCI-Framingham and WRCH psychiatric treatment records.
In a written order, the judge addressed portions of Deters's
proposed direct examination. He ruled that "facts or data or
opinions" from the records "may be elicited only by the
18
Commonwealth on cross-examination and, where this door has been
opened by the Commonwealth, by the defendant on redirect."6
ii. Analysis. The first step of our analysis is to
determine whether our common-law evidentiary rule limiting
direct examination testimony of an expert witness precludes
admission of the defendant's medical records. Concluding that
this rule of evidence does not bar admission of the medical
records, we address the Commonwealth's argument that the
records, in any event, were not admissible under § 79. Finally,
we consider whether the defendant was prejudiced by an adverse
ruling.
A. Limits on direct examination of expert witness. Expert
witnesses may base their testimony on "(1) facts personally
observed; (2) evidence already in the record[] or which the
parties represent will be admitted during the course of the
proceedings, assumed to be true in questions put to the expert
witnesses; and (3) facts or data not in evidence if the facts or
data are independently admissible and are a permissible basis
for an expert to consider in formulating an opinion" (quotation
and citation omitted). Commonwealth v. Markvart, 437 Mass. 331,
337 (2002). See Mass. G. Evid. § 703 (2026). As to the third
6 The prosecutor did not question Deters about the contents of the MCI-Framingham or WRCH records. As a result, the door to admission was never opened.
19
category, an expert testifying on direct examination may not
inform the jury about the facts and data that he or she
considered in formulating an opinion "that were not in evidence
but that would be admissible with the right witness or proper
foundation" (citation omitted). Commonwealth v. Goddard, 476
Mass. 443, 448 (2017). See Commonwealth v. Jaime, 433 Mass.
575, 577 (2001); Department of Youth Servs. v. A Juvenile, 398
Mass. 516, 531 (1986). "The purpose of this limitation . . . is
to prevent the proponent of the opinion from import[ing]
inadmissible hearsay into the trial" (quotation and citation
omitted). Commonwealth v. Piantedosi, 478 Mass. 536, 543
(2017). "The thrust of [our] rule is to leave inquiry regarding
the basis of expert testimony to cross-examination" (citation
omitted). Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010),
cert. denied, 563 U.S. 990 (2011).
Here, the judge ruled that the defendant's MCI-Framingham
and WHRC medical records were not admissible unless the
prosecutor "opened the door" on cross-examination. Thus, he
applied our common-law evidentiary rule relating to facts and
data not in evidence used by an expert witness to formulate an
opinion. See Department of Youth Servs., 398 Mass. at 527, 531-532 (expert allowed to state his opinion based on review of
records obtained from secure facility, without testifying to
20
underlying facts and data, where "[n]one of the reports was
offered in evidence").
This was error. Defense counsel had moved to admit the
medical records in evidence prior to Deters's testimony. The
judge, at that point, should have determined whether the medical
records, which had already been delivered to the clerk's office,
were admissible under § 79. See Commonwealth v. Wall, 469 Mass.
652, 667 (2014) (§ 79 "allows admission of the substantive
content of hospital records because of the presumption of
reliability which attaches to statements relating to treatment
and medical history in these records" [citation omitted]);
Commonwealth v. Francis, 450 Mass. 132, 139 (2007), S.C., 477
Mass. 582 (2017) (medical records, once delivered to clerk's
office pursuant to § 79, "are treated as any other evidence,"
and "[a]ll or portions thereof may be offered in evidence by the
proponent"). If admissible, in whole or in part, Deters could
have testified to the defendant's documented history of mental
illness "already in the record[]." Markvart, 437 Mass. at 337.
See Goddard, 476 Mass. at 448 ("where facts or data are already
admitted in evidence, . . . it is permissible for the expert
witnesses to reference that evidence in their own expert
testimony" [quotation and citation omitted]). See also
Piantedosi, 478 Mass. at 539-540 (forensic psychiatrist opined
on defendant's lack of criminal responsibility based in part on
21
medical records from psychiatric treatment at county jail and
State hospital, which had been introduced by defendant).
The case of Commonwealth v. Chappell, 473 Mass. 191 (2015),
is instructive. In Chappell, the defendant contended that the
judge impermissibly limited direct examination of his mental
health expert regarding the contents of medical records that
included diagnoses and opinions about the defendant's mental
state. Id. at 192, 202-203. The medical records, however,
"were not in evidence and the defense did not wish to introduce
them in evidence" (emphases added). Id. at 202-203. As the
trial judge in Chappell appropriately pointed out, "if the
defense introduced the defendant's medical records in evidence
as an exhibit," the defense expert -- and any other expert
witness -- "would then be entitled to testify concerning any
opinions or other information contained in them." Id. at 203.
Defense counsel declined to introduce the voluminous medical
records. Id. As a result of this strategic decision, defense
expert witnesses were precluded from testifying, on direct
examination, to opinions and other information contained in the
medical records. Id. at 202-203. We upheld the judge's
decision to limit the expert's direct examination and declined
to apply an exception to our common-law evidentiary rule. Id.
at 203-204. There was no error because defense counsel "would
have been able to elicit from the defense expert on direct
22
examination the opinions and other information from the
defendant's medical records in which he was interested by first
introducing those medical records in evidence." Id. at 204.
Defense counsel, in the instant case, attempted to follow this
blueprint, by first introducing the medical records in evidence,
to no avail.
B. Medical records. On appeal, the Commonwealth argues
that the defendant's medical records were not admissible under
§ 79. Section 79 provides, in relevant part, "Records kept by
hospitals . . . shall be admissible . . . as evidence in the
courts of the commonwealth so far as such records relate to the
treatment and medical history of such cases . . . ." G. L.
c. 233, § 79. The statute "excepts certain hospital records
from the common-law rule against hearsay evidence."
Commonwealth v. Cole, 473 Mass. 317, 321 (2015), overruled on
other grounds by Commonwealth v. Wardsworth, 482 Mass. 454, 464
n.18 (2019). The hearsay exception is premised on "the
presumption of reliability which attaches to statements relating
to treatment and medical history in these records." Bouchie v.
Murray, 376 Mass. 524, 528 (1978). But that is not to say this
presumption automatically renders all hospital records, in their
entirety, admissible. See Wall, 469 Mass. at 667-668. Rather,
a hospital record is admissible if the proponent establishes
that (1) the document is the type of record contemplated by
23
§ 79; (2) the information is germane to the patient's treatment
or medical history; (3) the information was recorded from the
personal knowledge of the entrant or from a compilation of the
personal knowledge of those who are under a medical obligation
to transmit such information; and (4) third-party statements
contained in the record are admissible under another hearsay
exception or are offered for a nonhearsay purpose. Bouchie,
supra at 531. See Wall, supra at 667 (citing four-part Bouchie
test).
Even where a proponent establishes these four criteria, a
judge retains discretion to exclude portions of otherwise
admissible medical records not relevant "to a material issue of
the case." Commonwealth v. Copeland, 375 Mass. 438, 442 (1978).
See Commonwealth v. Carey, 463 Mass. 378, 387 (2012) (all
evidence must meet threshold test of relevancy such that it has
"a rational tendency to prove an issue in the case" [quotation
and citation omitted]). In addition, a judge may exclude
portions of medical records that are "cumulative, repetitive, or
confusing" (citation omitted). Commonwealth v. Brown, 449 Mass.
747, 770 (2007). See Mass. G. Evid. § 403.
The Commonwealth contends that the judge properly exercised
his discretion to exclude "any portion (or all) of the records
as irrelevant [or] . . . any records as to which the probative
value is substantially outweighed by their prejudicial impact."
24
These claims are not supported by the trial record. The judge
rejected the prosecutor's argument that postarrest medical
records "are too far removed" from the murders "to be relevant
to [the defendant's] state of mind." He ruled that the medical
records, if relied on by Deters to formulate his opinion, would
be admissible. Moreover, the judge did not weigh the probative
value of the evidence against the risk of unfair prejudice. See
Commonwealth v. Rosario, 444 Mass. 550, 557 (2005); Mass. G.
Evid. § 403.
In addition, the Commonwealth maintains that the judge
properly exercised his discretion to exclude "thousands of pages
of . . . medical records . . . replete with unreliable secondlevel hearsay," and involving contested, widespread diagnoses
not entitled to the presumption of reliability. Although the
judge suggested that the parties propose redactions to the
voluminous records in a pretrial hearing, and the Commonwealth
raised hearsay objections to portions of the medical records,
these grounds were not a basis for the judge's ruling. As
discussed above, the judge denied the defendant's motion to
admit all postarrest medical records in evidence based on an
erroneous application of our common-law evidentiary rule
limiting the direct examination of an expert witness. There is
no support in the record for the Commonwealth's position that
the judge exercised his discretion either to pare down
25
voluminous records or to exclude portions of the records
containing unreliable second-level hearsay.
C. Prejudice. Having determined that there was error in
the exclusion of the defendant's medical records, we turn to the
issue of prejudice. See Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994). Where, as here, the defendant preserved the
error, "we review for prejudicial error and consider whether
there is a reasonable possibility that the error might have
contributed to the jury's verdict[s]" (quotation and citation
omitted). Commonwealth v. Carriere, 470 Mass. 1, 7 (2014). See
Commonwealth v. Sosa, 493 Mass. 104, 114 (2023), cert. denied,
145 S. Ct. 306 (2024) (examining whether error influenced jury
or had only very slight effect); Commonwealth v. Rosado, 428
Mass. 76, 79 (1998) (examining whether Commonwealth could show
with fair assurance that judgment was not substantially swayed
by error).
The Commonwealth raises two arguments why the defendant was
not prejudiced from the judge's erroneous ruling. First, the
exclusion of the medical records "had no effect on the jury
whatsoever since . . . Deters was allowed to regurgitate the
highlights of the records which supported his opinion that the
defendant was suffering from some sort of psychotic episode when
she murdered her two sons." Second, the medical records were
not helpful to the defense because they included inculpatory
26
information, such as documented instances in the weeks and
months following the murders in which the defendant appeared
alert and orientated with organized and logical thought content,7
and a diagnosis of adjustment disorder rather than
schizophrenia.
Deters was not allowed to "regurgitate the highlights" of
the medical records,8 and thus the records were not cumulative.
Cf. Brown, 449 Mass. at 770 (no error from exclusion of
cumulative psychiatric medical records where defendant
"introduced extensive evidence at trial about his medical
condition during the period in which he was hospitalized at
Bridgewater [State Hospital], including the detailed testimony
7 The defendant first began to report auditory
hallucinations in July 2018, five months after the murders.
8 There were only two instances where Deters referred to portions of the medical records. He testified, without objection, that the medical records established the defendant's history of hyperthyroidism and vitamin D deficiency, which he cited as a potential explanation for the defendant's psychosis, as "professional literature" has shown "some association . . . between those conditions and psychosis." Deters also testified on redirect examination, over the Commonwealth's objection, that "[b]ased on [his] review of the records . . . [t]here were a number of indications that she was very preoccupied with the Illuminati and videos [on] that [group]." These two references are far from the "highlights" of the medical records. As discussed infra, the medical records reveal far more than the defendant's hyperthyroidism and vitamin D deficiency, both of which were only referenced in passing by Deters. Additionally, family members had already testified to the defendant's preoccupation with the Illuminati.
27
of four expert witnesses pertaining to observations,
evaluations, and the treatment of [the defendant]"). To the
contrary, Deters was precluded from testifying on direct
examination regarding portions of medical records that supported
his opinion that the defendant was "grossly psychotic" at the
time she killed her children. As a result of the ruling, Deters
was limited to testifying that he reviewed the defendant's MCIFramingham and WRCH medical records and that the records were
"of significance" or "relevant" in forming his opinion.
The following is a sample of the excluded information
contained in the defendant's MCI-Framingham medical records:
(1) since her incarceration at MCI-Framingham, the defendant
exhibited symptoms of delusional thought content that
"appear[ed] episodically acute"; (2) on July 2, 2018, the
defendant exhibited signs of paranoid delusions and
hallucinations, making statements such as, "I smell gas," "They
are poisoning me," and "They are selling my soul to the devil";
(3) a progress note dated September 21, 2018, lists "[o]ther
schizophrenia" as a "problem" for the defendant; (4) by November
19, 2018, the defendant had repeatedly exhibited paranoia,
hyperreligiosity, and delusional thought content, having
frequently assigned significance to random dates and numbers;
(5) on February 20, 2019, a counsellor raised the "question of
schizophrenia spectrum disorder or schizotypal personality
28
disorder" as possible diagnoses, noting that the defendant
exhibited bizarre behaviors such as licking windows and staring
at walls; and (6) on July 23, 2019, the defendant met diagnostic
criteria for schizotypal personality disorder and unspecified
depressive disorder.
In September 2019, MCI-Framingham petitioned, pursuant to
G. L. c. 123, § 18 (a), to transfer the defendant to an
inpatient psychiatric hospital because she was "behaviorally out
of control." A judge allowed the petition, and the defendant
was committed to WRCH from September 19, 2019, to April 28,
2020. Medical records from the defendant's psychiatric
commitment, not provided to the jury, include the following
information: (1) on September 20, 2019, the defendant exhibited
a "bizarre affect," with her speech "pressured, nonsensical and
incoherent"; (2) on September 23, 2019, the defendant was
diagnosed with "[s]chizophrenia spectrum and other psychotic
disorders," with other diagnoses to be ruled out; (3) the
results of neuropsychological tests administered from October 18
through December 22, 2019, suggested the defendant suffered from
a "psychotic (thought) disorder with a significant tendency to
distort reality, especially under emotional stress"; (4) on
November 18, 2019, the defendant reported that since the birth
of her first child she had been experiencing auditory
hallucinations, with delusions that worsened in recent years,
29
including paranoid delusions about the safety of her sons; (5)
also on November 18, the defendant's presentation was determined
to be "consistent with paranoid schizophrenia [that was]
undetected and untreated for decades"; (6) on April 28, 2020,
the defendant was discharged with a diagnosis of
"[s]chizoaffective disorder, depressed type."
The Commonwealth is correct that portions of the medical
records contain inculpatory evidence. Among the thousands of
pages, the records included initial diagnoses inconsistent with
Deters's opinion, such as adjustment disorder and depression,
and clinical notes documenting the defendant's alert and
orientated appearance, with no signs of psychosis. Based on our
comprehensive review of the medical records, however, we have no
difficulty concluding that the exculpatory MCI-Framingham and
WRCH records far exceed those that called into question the
defendant's mental illness.
We hold that the exclusion of the MCI-Framingham and WRCH
medical records documenting the defendant's postarrest diagnoses
or treatment of mental illness, as the defendant argues,
impermissibly stripped the sole defense "of the medical
foundation that supported it." The defendant is entitled to a
new trial.
30
b. Closing argument. Because the issues may arise in a
retrial, we address two of the defendant's claims that the
prosecutor exceeded the bounds of permissible closing argument.
First, the defendant argues that the prosecutor committed
"profound and prejudicial" misconduct by referring to her as
"evil" throughout the closing argument. This "perverse"
character attack, she maintains, was calculated to "inflame the
passions and prejudices of the jury."
It is important to place disputed portions of a closing
argument "in the context of the entire closing, the jury
instructions, and the evidence introduced at trial" (citation
omitted). Commonwealth v. Kapaia, 490 Mass. 787, 801 (2022). A
prosecutor is entitled to argue forcefully for the defendant's
conviction by marshalling the facts in evidence and fair
inferences drawn from those facts. Commonwealth v. Rutherford,
476 Mass. 639, 643 (2017). See Commonwealth v. Brown, 496 Mass.
287, 301-302 (2025). Upsetting facts, "inherent in the odious
. . . nature of the crime[] committed," are not off limits where
relevant to an issue presented to the jury (citation omitted).
Commonwealth v. Henley, 488 Mass. 95, 131–132 (2021). See
Commonwealth v. Chism, 495 Mass. 358, 404 (2025) (prosecutor's
urging of jury to focus on gruesome crime scene photographs
permissible where relevant to nature and extent of victim's
injuries and defendant's state of mind). See also Commonwealth
31
v. Rakes, 478 Mass. 22, 44 (2017) (argument detailing moments
leading up to victim's horrific death relevant to theory of
extreme atrocity or cruelty). Within this framework, a
prosecutor may not use a closing argument to play to the jury's
sympathy or emotion. See Commonwealth v. Santiago, 425 Mass.
491, 501 (1997), S.C., 427 Mass. 298 and 428 Mass. 39 (1998)
("appeals to sympathy . . . obscure the clarity with which the
jury would look at the evidence and encourage the jury to find
guilt even if the evidence does not reach the level of proof
beyond a reasonable doubt"). Similarly, "[i]t is improper for a
prosecutor to use insulting names designed to evoke an
emotional, rather than a rational, response from jurors."
Commonwealth v. Lewis, 465 Mass. 119, 130 (2013). See
Commonwealth v. Bois, 476 Mass. 15, 34-36 (2016) (impermissible
characterization of defendant as "monster"); Lewis, supra
(impermissible characterization of defendant as "street thug").
The prosecutor's use of the term "evil," premised on the
defendant's own words written in her notebook and spoken in
recorded telephone calls, was permissible where related to the
defendant's appreciation for the wrongfulness of her conduct.
The judge instructed the jury that a person is not criminally
responsible for her conduct if, as a result of mental disease or
defect, she "lack[s] substantial capacity either to appreciate
the criminality or wrongfulness of her conduct or to conform her
32
conduct to the requirements of the law." See Commonwealth v.
McHoul, 352 Mass. 544, 546 (1967). See also Commonwealth v.
Goudreau, 422 Mass. 731, 737-738 (1996) (Appendix).
"Wrongfulness," the judge further instructed, "means the moral
significance." See Commonwealth v. Rezac, 494 Mass. 368, 371
(2024) (wrongfulness refers to "moral import" of conduct). In
this limited fashion, the term "evil" was relevant to an issue
raised in the case and not a pejorative label signifying bad
moral character. We trust that on retrial the Commonwealth will
use the term, if at all, in this context.
Second, the defendant argues that the prosecutor made
baseless claims regarding the television program "Law & Order:
Special Victims Unit" (SVU), which was playing on a bedroom
television in the defendant's apartment on the day the police
discovered the victims' bodies. The prosecutor argued:
"You saw in the crime scene video . . . . My recollection
of the evidence that it's Law and Order SVU. Why does that
matter? The Law and Order SVU I suggest to you, you can
use your common sense to decide if that makes a lot of
money, if that type of story makes a lot of money."
The prosecutor argued also that the defendant used certain
episodes of the television program to concoct her story:
"[m]aybe there was something on that [television] that gave her
the idea, that helped her come up with not the hallucinations,
not the delusions, but the lies."
33
We recite the relevant trial testimony. On February 5, at
an unspecified time during the day, police officers entered the
defendant's apartment and discovered Marlon and La'Son's bodies
in separate bedrooms. By then, the boys had been deceased "for
quite some time" or "a little while." At 8:30 P.M., a State
police trooper videotaped the crime scene and captured glimpses
of SVU playing on a television in one of the bedrooms. Deters,
on cross-examination, admitted that he did not watch the crime
scene videotape. The prosecutor then asked Deters:
Q.: "You didn't see the video that showed that on the
television was Law and Order [SVU]?"
A.: "No, I never saw that."
Q.: "Are you familiar with Law and Order [SVU]?"
A.: "Not really. I mean, I've heard of it, certainly, but
I don't think I've ever watched an episode of it."
Q.: "So you're not familiar with the fact that there are
at least four episodes of women killing kids and claiming
voodoo rituals in that?"
A.: "Absolutely no idea. It's the first time I've ever
heard that."
The portions of the prosecutor's argument relating to the
television program were impermissible. See Commonwealth v.
Mack, 482 Mass. 311, 322 (2019) (prosecutor may not misstate
evidence or refer to facts not in evidence). No testimony or
reasonable inferences drawn from testimony established a
34
connection between the television program that happened to be
playing during the police investigation and the earlier murders.
There was no evidence to suggest that the defendant watched
episodes of the television program involving child murder and
voodoo rituals or copied the plot lines.
3. Conclusion. For the foregoing reasons, the judgments
are vacated, the verdicts are set aside, and the matter is
remanded to the Superior Court for a new trial.
So ordered.