Commonwealth v. Lunde, 390 Mass. at 47, and cases cited. Here, for example, the trial judge could have disbelieved the expert testimony or accorded it less weight either because the psychiatrists' diagnoses were not in complete agreement or because the judge believed the experts' interviews with Cullen to have been too brief or too remote in time from the shooting.Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 595-596 (1982). Further, Cullen had no prior history of psychiatric treatment except one referral to a residential treatment program, possibly for psychiatric reasons, some twenty-five years earlier.
See Commonwealth v. Boateng, 438 Mass. 498, 507 (2003) (admission of one postautopsy photograph showing victim with scalp removed not abuse of discretion). See also Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 596 (1982) (no error in admitting photographs of victim that displayed "surgical incisions, along with the stab wounds, as well as tubes which had been inserted into the victim's throat"). Moreover, the judge instructed the jury when the photographs were admitted, and again during his final instruction, they were to decide the case unemotionally, dispassionately, and analytically.
Some states also limit the expert testimony to homicide cases. See, e.g., Commonwealth v. Robinson, 14 Mass. App. 591, 441 N.E.2d 553, 558 (1982); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1347, 1350 (1982). Iowa allows evidence of diminished responsibility as a "defense" in "specific intent" crimes, State v. Barney, 244 N.W.2d 316, 318 (Iowa 1976), and yet in State v. Plowman, 386 N.W.2d 546, 548-49 (Iowa App. 1986), second degree murder, which required malice aforethought, was held to be a general intent crime so that the diminished responsibility defense was unavailable.
To warrant a voluntary manslaughter instruction, there must be "a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 599 (1982), quoting from Commonwealth v. Walden, 380 Mass. 724, 727 (1980). There must also be a "causal connection between the provocation, the heat of passion, and the killing."
"The 'presumption of sanity' is really a shorthand expression for the fact that the majority of people are sane and the related probability that any particular person is sane." Commonwealth v. Robinson, 14 Mass. App. 591, 441 N.E.2d 553, 556 (1982). See also Cunningham v. State, 426 So.2d at 487.
1. As the defendant had raised no question of lack of criminal responsibility (see Mass.R.Crim.P. 14[b][2][A], 378 Mass. 878), the Commonwealth's motion in limine was properly allowed for the reasons advanced by the prosecutor and accepted by the trial judge. See Commonwealth v. Sheehan, 376 Mass. 765, 772-776 (1978); Commonwealth v. Loretta, 386 Mass. 794, 799-800 (1982); Commonwealth v. Genius, 387 Mass. 695, 700-701 (1982); Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 597-598 (1982). Contrast Commonwealth v. Gould, 380 Mass. 672, 681-683 (1980) (first degree murder); Commonwealth v. Schulze, 389 Mass. 735, 739-740, 742 (1983) (question of lack of criminal responsibility); Commonwealth v. Paszko, 391 Mass. 164, 197 (1984) (first degree murder).
There is no evidence that Sanborn said or did anything to provoke the defendant. See Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 598-600 (1982). There must be "a causal connection between the provocation, the heat of passion, and the killing" to justify an instruction on provocation.
All of the defendant's arguments were answered by the Supreme Judicial Court in the Lunde decision. See also Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 594-596 (1982). As in Lunde, the jury could have properly rejected the opinions of the defendant's experts.