NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-357
COMMONWEALTH
vs.
VICTOR PENA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Victor Peña,
of kidnapping, G. L. c. 265, § 26, and ten counts of aggravated
rape, G. L. c. 265, § 22 (a). On appeal, the defendant asserts
that the judge erred in denying his motions to present his
demeanor in an unmedicated state to the jury. We affirm.
Background. We need not recite the trial evidence in any
detail. The jury could have found that the defendant kidnapped
the victim on the night of January 19, 2019, as she was leaving
a bar in Boston, and held her captive in his apartment for three
days. He hid her telephone and keys and subjected her to
repeated rapes and other degrading acts. The defendant testified at trial that he believed the events that occurred
were consensual.
The day before the trial began, the judge determined that
the defendant was competent to stand trial. The defendant had
been committed to Bridgewater State Hospital (Bridgewater) for
multiple evaluations and was found competent each time. The
judge considered five evaluations of the defendant and heard
expert testimony from Dr. Jeffrey Miner, a forensic
psychologist; Dr. Johnathan Young, a forensic psychologist at
Bridgewater; and Erin Regan, the defendant's nurse practitioner
at Bridgewater. The judge credited Dr. Young's opinion that the
defendant did not suffer from "a major mental illness," had a
"likely higher" capacity than he presented, and was able to
communicate his needs, respond to questions, and describe his
experiences with the legal system. The judge also relied on his
own observations of the defendant, finding that "[t]he
defendant's conduct elevates at times" and that he "convey[s] an
understanding of what is being said and the charges" against
him. The judge concluded that the defendant's behavior, rather
than demonstrating incompetency, was "seemingly designed to
delay this trial."
At trial, the defendant provided notice of his intent to
present a defense of lack of criminal responsibility because of
mental disease or defect. The defendant moved for jury
2 instructions on the affirmative defense of lack of criminal
responsibility and on the consequences of a verdict of not
guilty by reason of lack of criminal responsibility, which the
judge allowed. The judge denied, however, the defendant's
motions to permit the jury to observe his demeanor in an
unmedicated state.
Discussion. The defendant contends that because his mental
capacity to commit the crimes charged was at issue, the judge
erred in depriving him of the opportunity to place his
unmedicated demeanor before the jury. He argues that this
ruling violated his right to present a defense under the Sixth
and Fourteenth Amendments to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights, specifically
his right to "place before the jury any evidence which is at all
probative of his mental condition." Commonwealth v. Louraine,
390 Mass. 28, 34 (1983).
"When a defendant is medicated at trial, he may introduce
evidence of the effect of that medication, if it is relevant to
the issues in the case." Commonwealth v. Zagrodny, 443 Mass.
93, 104 (2004), citing Commonwealth v. Gurney, 413 Mass. 97,
103-104 (1992). Particularly where the defendant raises a
defense of lack of criminal responsibility due to mental disease
or defect, appearing before the jury with a "controlled outward
appearance" due to medication may result in "unfair prejudice."
3 Gurney, supra at 101, citing Louraine, 390 Mass. at 35. A
defendant, however, does not have an "unrestricted" right to
appear unmedicated. Commonwealth v. Gaboriault, 439 Mass. 84,
95 (2003). See Commonwealth v. Brown, 449 Mass. 747, 770 (2007)
(right to present evidence probative of mental condition "may be
tempered according to the discretion of the trial judge"
[citation omitted]). "[I]n some cases, the defendant's demeanor
in an unmedicated condition will not be relevant." Gurney,
supra at 103, quoting Louraine, supra at 38. Whether a
defendant is entitled to appear in an unmedicated state must be
assessed "on a case-by-case basis." Gaboriault, supra, citing
Gurney, supra.
Here, the judge did not err or otherwise abuse his
discretion in determining that evidence of the defendant's
unmedicated demeanor had little if any probative value. See
Brown, 449 Mass. at 770. First, there was no evidence that the
defendant suffered from a psychotic disorder that required
medication to control its effects. Medical providers at
Bridgewater prescribed the defendant with risperidone to address
his mood stability, impulsivity related to his antisocial
personality disorder, and "self-reported psychotic symptoms,"
but not "to treat symptoms of a major mental illness (e.g.
hallucinations, delusions, mania, depression, etc.)." See
Commonwealth v. Torres, 437 Mass. 460, 463 n.4 (2002)
4 ("Antisocial personality disorder generally does not constitute
a mental disease or defect"). The defendant's treating nurse
practitioner at Bridgewater did not see "evidence of an
underlying psychotic or mood disorder." Dr. Young concluded
that even though the defendant "may see some benefit" from
risperidone, "it likely only provides minimal impact . . . and
there would likely be very minimal change in his presentation
[if] he were to stop taking the medication." The defendant did
not introduce any evidence to the contrary in support of his
motions to appear in an unmedicated state.
In addition, it was unclear whether the defendant was
compliant with his risperidone prescription during trial.
Although he was prescribed risperidone on an "as needed" basis
and accepted the medication during his commitment at Bridgewater
from June 28 to July 6, 2022, medical records indicated that he
only "partially" accepted the medication while incarcerated.
There was no evidence that he continued taking risperidone after
his final discharge from Bridgewater before trial. Defense
counsel stated twice during trial that he did not know whether
the defendant was taking medication, and the defendant did not
testify about his mental illness or medication use. See
Zagrodny, 443 Mass. at 104-105 (affirming finding that
defendant's unmedicated demeanor was not relevant to lack of
criminal responsibility defense where it was "far from clear"
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-357
COMMONWEALTH
vs.
VICTOR PENA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant, Victor Peña,
of kidnapping, G. L. c. 265, § 26, and ten counts of aggravated
rape, G. L. c. 265, § 22 (a). On appeal, the defendant asserts
that the judge erred in denying his motions to present his
demeanor in an unmedicated state to the jury. We affirm.
Background. We need not recite the trial evidence in any
detail. The jury could have found that the defendant kidnapped
the victim on the night of January 19, 2019, as she was leaving
a bar in Boston, and held her captive in his apartment for three
days. He hid her telephone and keys and subjected her to
repeated rapes and other degrading acts. The defendant testified at trial that he believed the events that occurred
were consensual.
The day before the trial began, the judge determined that
the defendant was competent to stand trial. The defendant had
been committed to Bridgewater State Hospital (Bridgewater) for
multiple evaluations and was found competent each time. The
judge considered five evaluations of the defendant and heard
expert testimony from Dr. Jeffrey Miner, a forensic
psychologist; Dr. Johnathan Young, a forensic psychologist at
Bridgewater; and Erin Regan, the defendant's nurse practitioner
at Bridgewater. The judge credited Dr. Young's opinion that the
defendant did not suffer from "a major mental illness," had a
"likely higher" capacity than he presented, and was able to
communicate his needs, respond to questions, and describe his
experiences with the legal system. The judge also relied on his
own observations of the defendant, finding that "[t]he
defendant's conduct elevates at times" and that he "convey[s] an
understanding of what is being said and the charges" against
him. The judge concluded that the defendant's behavior, rather
than demonstrating incompetency, was "seemingly designed to
delay this trial."
At trial, the defendant provided notice of his intent to
present a defense of lack of criminal responsibility because of
mental disease or defect. The defendant moved for jury
2 instructions on the affirmative defense of lack of criminal
responsibility and on the consequences of a verdict of not
guilty by reason of lack of criminal responsibility, which the
judge allowed. The judge denied, however, the defendant's
motions to permit the jury to observe his demeanor in an
unmedicated state.
Discussion. The defendant contends that because his mental
capacity to commit the crimes charged was at issue, the judge
erred in depriving him of the opportunity to place his
unmedicated demeanor before the jury. He argues that this
ruling violated his right to present a defense under the Sixth
and Fourteenth Amendments to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights, specifically
his right to "place before the jury any evidence which is at all
probative of his mental condition." Commonwealth v. Louraine,
390 Mass. 28, 34 (1983).
"When a defendant is medicated at trial, he may introduce
evidence of the effect of that medication, if it is relevant to
the issues in the case." Commonwealth v. Zagrodny, 443 Mass.
93, 104 (2004), citing Commonwealth v. Gurney, 413 Mass. 97,
103-104 (1992). Particularly where the defendant raises a
defense of lack of criminal responsibility due to mental disease
or defect, appearing before the jury with a "controlled outward
appearance" due to medication may result in "unfair prejudice."
3 Gurney, supra at 101, citing Louraine, 390 Mass. at 35. A
defendant, however, does not have an "unrestricted" right to
appear unmedicated. Commonwealth v. Gaboriault, 439 Mass. 84,
95 (2003). See Commonwealth v. Brown, 449 Mass. 747, 770 (2007)
(right to present evidence probative of mental condition "may be
tempered according to the discretion of the trial judge"
[citation omitted]). "[I]n some cases, the defendant's demeanor
in an unmedicated condition will not be relevant." Gurney,
supra at 103, quoting Louraine, supra at 38. Whether a
defendant is entitled to appear in an unmedicated state must be
assessed "on a case-by-case basis." Gaboriault, supra, citing
Gurney, supra.
Here, the judge did not err or otherwise abuse his
discretion in determining that evidence of the defendant's
unmedicated demeanor had little if any probative value. See
Brown, 449 Mass. at 770. First, there was no evidence that the
defendant suffered from a psychotic disorder that required
medication to control its effects. Medical providers at
Bridgewater prescribed the defendant with risperidone to address
his mood stability, impulsivity related to his antisocial
personality disorder, and "self-reported psychotic symptoms,"
but not "to treat symptoms of a major mental illness (e.g.
hallucinations, delusions, mania, depression, etc.)." See
Commonwealth v. Torres, 437 Mass. 460, 463 n.4 (2002)
4 ("Antisocial personality disorder generally does not constitute
a mental disease or defect"). The defendant's treating nurse
practitioner at Bridgewater did not see "evidence of an
underlying psychotic or mood disorder." Dr. Young concluded
that even though the defendant "may see some benefit" from
risperidone, "it likely only provides minimal impact . . . and
there would likely be very minimal change in his presentation
[if] he were to stop taking the medication." The defendant did
not introduce any evidence to the contrary in support of his
motions to appear in an unmedicated state.
In addition, it was unclear whether the defendant was
compliant with his risperidone prescription during trial.
Although he was prescribed risperidone on an "as needed" basis
and accepted the medication during his commitment at Bridgewater
from June 28 to July 6, 2022, medical records indicated that he
only "partially" accepted the medication while incarcerated.
There was no evidence that he continued taking risperidone after
his final discharge from Bridgewater before trial. Defense
counsel stated twice during trial that he did not know whether
the defendant was taking medication, and the defendant did not
testify about his mental illness or medication use. See
Zagrodny, 443 Mass. at 104-105 (affirming finding that
defendant's unmedicated demeanor was not relevant to lack of
criminal responsibility defense where it was "far from clear"
5 that he was not medicated at time of offense or medicated during
trial).
The defendant's reliance on Louraine is unavailing. In
that case, the defendant was diagnosed with paranoid
schizophrenia, expert medical testimony established that he was
receiving "maximum" dosages of antipsychotic medication to
mitigate the effects of that condition, and the trial judge
determined that the medication enabled the defendant to "control
himself and to cope with these episodes." Louraine, 390 Mass.
at 32-33. Here, by contrast, there was no competent evidence of
a psychiatric disorder, it was unclear whether the defendant was
complying with his risperidone prescription, and expert evidence
indicated that the medication had only a "minimal impact" on the
defendant's presentation. Given these circumstances, evidence
of the defendant's unmedicated demeanor had little probative
value, and the denial of his motions to appear in an unmedicated
state did not deprive him of a fair trial. See Zagrodny, 443
6 Mass. at 104-105; Gaboriault, 439 Mass. at 95-96; Louraine,
supra at 33.
Judgments affirmed.
By the Court (Rubin, Massing & Toone, JJ.1),
Clerk
Entered: July 8, 2026.
1 The panelists are listed in order of seniority.