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Commonwealth v. Sanders

2026-08-06

Authorities cited

Opinion

majority opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

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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

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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.

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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

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"[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

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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

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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

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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.

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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

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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

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"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

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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.

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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

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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.

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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.

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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."

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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

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"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

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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.

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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

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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

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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

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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

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§ 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.