Woman seeks 3rd trial in Brockton cinder block death

BOSTON (AP) - Sheila Berry won a new trial after she was convicted of fatally beating an acquaintance over the head with a cinder block so many times that the block broke into 18 pieces.

The highest court in Massachusetts ruled that jury instructions given at her trial "created a substantial likelihood of a miscarriage of justice" because the jury could have believed that her insanity defense was invalid because she voluntarily drank alcohol the night of the killing.

The court's revised model jury instructions in such cases indicate a defendant can be found legally insane if jurors believe a mental disease became activated or intensified by drugs or alcohol and caused the defendant to lose the capacity to understand right from wrong.

During her retrial, Berry was again convicted of first-degree murder. But her lawyer is now set to go before the high court next month to argue that she should get a third trial because the judge failed to strike the testimony of a prosecution expert who the defense says misstated the law and told jurors that Berry's consumption of alcohol the day of the killing essentially forfeited her insanity defense.

Berry was convicted in the 2002 death of Admilson Goncalves, an acquaintance who tried to calm Berry after she got into a heated argument with another man outside a neighborhood variety store in Brockton. Berry took Goncalves' bicycle, and witnesses testified they later saw her repeatedly hit him in the head with the block.

During her first trial in 2006, experts testifying for the defense said Berry lacked criminal responsibility for her actions because she had bipolar disorder, had received a serious head injury at the age of 14, had numerous psychiatric hospitalizations in the previous 10 years and had a brain tumor at the time of the killing. There was also evidence that she had two or three large glasses of rum the day Goncalves was killed.

During her retrial in 2011, three defense experts testified that Berry was not criminally responsible for Goncalves' death because her mental illness and brain tumor left her unable to control her conduct at the time of the killing. Two prosecution experts testified that she was criminally responsible.

Michael Murphy, a psychologist, testified for prosecutors, saying that at the time of the killing, Berry was not psychotic and had the capacity to understand her conduct was wrong. Murphy also said that any limitation on her ability to conform her behavior to the law was "a result of substance abuse intoxication rather than primarily related to mental illness."

Berry's appellate lawyer, Kevin Nixon, argues that the judge should have granted a defense request to strike Murphy's testimony and instructed the jury that his opinion was incorrect under the law.

"Once it was clear that Dr. Murphy's opinion was not supportable under the law, the judge should have excluded it because its potential to mislead or confuse the jury was so great," Nixon wrote in his appeal brief.

Nixon is asking the court to order a new trial or to reduce Berry's conviction to second-degree murder or manslaughter.

The Supreme Judicial Court is scheduled to hear arguments in the case Sept. 10.

Prosecutors contend that Murphy behaved rationally before the killing and that she was not psychotic at the time, according to witnesses. They said Murphy never suggested that the insanity defense became unavailable if a defendant voluntarily consumed alcohol.

"On direct, Dr. Murphy indicated that, although the defendant suffered from a mental disease or defect that sometimes affected her behavior, her behavior at the critical time of the killing was not affected by that mental disease or defect," Assistant District Attorney Robert Thompson argued in his written response to Berry's appeal.

Thompson said the judge properly defined criminal responsibility for the jury.

"We've convicted Miss Berry two times for this brutal murder," said Bridget Norton Middleton, a spokeswoman for the prosecutor's office. "We are confident in the case that we presented to the jury. We are confident that the SJC will uphold her conviction."

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