|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Kostka, 370
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Paul A. D'Agostino, Jr.,
Alan L. Kovacs, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY,
C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN, WILKINS, and LIACOS, JJ.
HENNESSEY, Chief Justice.
Kostka was
found guilty of murder in the first degree, armed robbery, and two counts of
assault with a dangerous weapon. His
appeal is before us pursuant to G.L. c. 278, ss 33A‑‑33G.
On appeal,
Kostka presents the following as error: (1) the trial judge's finding that he
was competent to stand trial; (2) the trial judge's allowance of testimony of
an out‑of‑court identification and an in‑court identification
by a Mrs. Eunice Silverman; (3) the trial judge's refusal to give instructions
on the consequences of a verdict of not guilty by reason of insanity; and (4)
the trial judge's refusal to direct a verdict of not guilty by reason of
insanity. We conclude that there was no
error in the trial judge's actions. (FN1)
Before
considering the issues raised on appeal, we set out the facts adduced at
trial. On
Three days
later, on April 18, both girls were taken to State police headquarters in
Boston where, after viewing hundreds of pictures, they identified pictures of
Kostka. Later that day Kostka was
arrested by a Boston police officer.
Kostka was
also identified by a Mrs. Eunice Silverman, the wife of the owner of the store,
who, in response to a composite picture in a Malden newspaper, called the
Malden police to report that she had seen a man fitting the composite
description in the store the night before the murder. Mrs. Silverman testified that she was working
in the store that evening when, about 10:15 P.M., fifteen minutes before
closing time, a man ontered the store, stood around the magazine rack for
several minutes, and then purchased some potato chips, a pack of cigarettes,
and a magazine. Mrs. Silverman testified
that the man was in the store for about five or ten minutes and that she
observed him closely because she was uneasy about someone entering the store
that close to closing time. She also
testified that she engaged the man in a brief conversation before he left.
At the
time the man entered the store there was another person, who was waiting to
take Mrs. Silverman home, present; before that person left, a third person
entered [370 Mass. 519] the store. After Mrs. Silverman saw the composite
photograph in a local paper several days later, she called the police, and told
them that she was 'pretty sure' that a man who had been in the store the night
before the murder was the man in the composite drawing. The police came to her home shortly
thereafter with about twelve black and white photographs of white males. Two of the twelve pictures were of the
defendant‑‑one photograph with glasses on and another without. Of the other ten photographs, there were no
duplicates. Mrs. Silverman picked out
the two pictures of Kostka. However, it
was not until the next day that the police notified her that she had picked out
pictures of the suspect.
The
evidence presented by Kostka was almost exclusively concerned with his defense
of insanity. There was testimony from a
number of lay witnesses and from two psychiatrists; additionally, extensive
medical records were produced. Without
setting out all the evidence produced by the defense, we shall attempt to
summarize the evidence on insanity.
Kostka's
mother testified to years of difficulty with her son, starting at age three or
four. Kostka had continual problems at
school, was disruptive and violent, and was sent to the Middlesex Training
School at age nine. He stayed there for
about two years, having been classified as a habitual school offender. Although Kostka returned to the Malden public
schools at age fourteen, he remained in school for only two months. One year later he was referred to a special
program for emotionally disturbed children.
A series
of hospital admissions began in 1964, when Kostka was fourteen. Over the next five years Kostka had ten
admissions‑‑six at Bridgewater State Hospital (Bridgewater), and
two each at Foxborough State Hospital and Metropolitan State Hospital. The admissions lasted from one to seventeen
months. Some were the result of prison,
court or school references, but most were requested under the provisions of G.L.
c. 123. The diagnoses varied [370 Mass. 520] from 'emotionally unstable personality' to 'sociopathic
personality' to 'schizoid personality.'
At no time did the diagnoses state that Kostka was overtly psychotic.
After Kostka was arrested for the murder of
Murray Cohen, he was initially incarcerated in the Billerica House of Correction. About a month later, because of disruptive
conduct there, he was sent to Bridgewater State Hospital. After several weeks of observation, during
which Kostka refused to take psychological tests, the staff issued a
provisional diagnosis in which they concluded that the defendant has an '(a)nti‑social
personality disorder, severe, with schizoid and unstable features, possibly
decompensating into schizophrenia, paranoid type.' At that time (June 1972), Kostka was
considered by the staff to be incompetent to stand trial. He remained at Bridgewater.
In
September, 1972, a staff report reaffirmed the previous diagnosis, but noted
that Kostka was 'well oriented and in good contact with reality.' In January, 1973, a further review of
Kostka's condition resulted in the same basic diagnosis, but concluded that he
was then competent to stand trial. In
March, after spending nine months at Bridgewater, pursuant to his own request,
he was transferred back to Billerica.
Six days later Kostka returned to Bridgewater on the basis of a request
by the prison physician. Reevaluation of
Kostka's condition resulted in a reaffirmation of previous diagnoses.
In
addition to these medical records and staff evaluations, Kostka presented two
experts. (FN2) A Dr. James Christy, the
acting medical director of Bridgewater at the time of trial, testified that he
had known Kostka for a period of time and that he had examined him on numerous
occasions. In June, 1972, Dr. Christy
felt that Kostka was 'on his way to psychosis.'
However, Dr. Christy did not find Kostka to be in a continual state of
psychosis. (FN3) While Dr. [370 Mass. 521] Christy did conclude at trial that the defendant, then twenty‑three
years old, was 'presently mentally ill' and that he probably had been since he
was nine or ten years old, Dr. Christy did not have an opinion whether Kostka
was criminally responsible on the date of the crime.
The
defendant's other expert, Dr. Robert Mezer, testified that he first examined
Kostka in February, 1973. Dr. Mezer
expressed his belief that Kostka suffered from chronic paranoid schizophrenia,
resulting in the loss of 'contact with reality' and 'difficulty in adjusting to
the requirements (of) life as most people know it.' Dr. Mezer disagreed with the other doctors'
diagnoses of Kostka: he felt Kostka was not simply a sociopath. He concluded that Kostka was not criminally
responsible on the date of the crime under the test set forth in Commonwealth
v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967). He stated that Kostka was suffering from
'paranoid schizophrenia,' a 'major psychotic illness.' Kostka was thus 'not able to conform his
conduct to the requirements of the law because of his mental illness.' Dr. Mezer based this conclusion on
observation and evaluation of Kostka's 'entire illness' and Kostka's
statements, in February, 1973, about his mental state on the date of the crime.
To rebut
this substantial evidence on the issue of insanity, the Commonwealth first
called Mrs. Silverman to testify. The
Commonwealth argues that her testimony, in addition to identifying Kostka as
the man in the store the night before the murder, would permit the inference
that Kostka might have been sane because he planned to rob the store when only
he and a salesperson would be there.
A
registered nurse at Bridgewater also testified in rebuttal. She said that she had known Kostka for about two
years. Kostka never caused any
difficulties for her, she stated, but he did say that at times he had problems.
Finally, a
correction officer at Bridgewater testified that he had cared for Kostka for
the three weeks prior to trial. The
officer stated that Kostka had actively participated [370 Mass. 522] with
other patients in sports, that he had worked in the print shop, and was neat in
appearance. The officer indicated that
Kostka did not cause any disturbances during this period‑‑while
being confined in a minimum security building‑‑but he did note that
Kostka was on medication.
Having set
out the facts of the crime and summarized the evidence of insanity, we turn now
to the issues raised on appeal.
1. Competence
to Stand Trial.
[1] [2]
Kostka first argues that the trial judge's finding that he was competent to
stand trial was erroneous. 'The test to
be applied in determining the competence of the defendant is 'whether he has
sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding‑‑and whether he has a rational as well as
factual understanding of the proceedings against him. ''
Commonwealth v. Vailes, 360 Mass. 522, 524, 275 N.E.2d 893, 895, (1971),
quoting from Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824
(1960). When there is doubt as to
whether the defendant satisfies this test, the judge must, on his own
initiative, conduct a full hearing on the issue (Pate v. Robinson, 383 U.S.
375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Commonwealth v. Vailes, supra,
360 Mass. at 524, 275 N.E.2d 893) and '(a) finding of incompetency shall
require a preponderance of the evidence.'
G.L. c. 123, s 15(d), as amended through St.1973, c. 569 s 7. On the evidence adduced here, we conclude
that the trial judge was clearly warranted in finding that Kostka was competent
to stand trial.
Although
there are indications that, at various points prior to trial, Kostka was
considered by those treating him to be incompetent to stand trial, the test set
out in Dusky is concerned with present abilities. See Pate v. Robinson, supra at 387, 86 S.Ct.
836. Consequently the question is
whether Kostka was competent to stand trial at the actual time of trial in
October, 1973. Support for the trial
judge's conclusion may be found in the testimony of Dr. Christy, the acting
director of Bridgewater State Hospital.
Although Dr. Christy recognized that Kostka had an 'anti‑social
personality' with 'early signs of schizophrenia,' he was of the opinion that
Kostka was competent to stand trial. Dr.
Christy [370 Mass. 523] testified that Kostka understood both
the charges against him and the nature of the proceedings; that he was able to
confer with his attorney 'with a reasonable degree of rational understanding';
and that he was 'very capable' of coo perating with his attorney. These conclusions draw strong support from
the fact that Dr. Christy had known Kostka over a period of time and was quite
familiar with his medical history.
Dr. Mezer
reached the opposite conclusion.
However, unlike Dr. Christy, Dr. Mezer had not had an ongoing
relationship with Kostka. Rather, he
based his conclusions on two brief examinations of Kostka‑‑a total
of two and one‑half hours‑‑one of which was eight months
before trial. Additionally, Dr. Mezer
stated that only five or ten minutes of his initial examination was
consideration of the question of Kostka's competence to stand trial.
We
conclude that, on the basis of the evidence, there was ample support for the
trial judge's finding that Kostka was competent to stand trial. Accordingly, Kostka was not denied any due
process rights in this regard. See
Commonwealth v. Vailes, supra at 524, 275 N.E.2d 893, and cases cited.
2. Identification by Mrs. Silverman.
Kostka's
second contention on appeal is that the trial judge erred by not suppressing
testimony of the out‑of‑court identification made by Mrs. Silverman
and by allowing Mrs. Silverman to make an in‑court identification.
As we have
previously noted, Mrs. Silverman called the Malden police after she saw a
composite drawing of the suspected murderer in the local newspaper about four
days after the crime. The next day a
Captain Cornelius Buckley came to Mrs. Silverman's home with about a dozen
photographs of white males between the ages of twenty and twenty‑eight,
some with glasses and others without glasses.
At the voir dire and at trial Mrs. Silverman testified that the
photographs were randomly placed on her kitchen table and that she selected two
photographs of Kostka‑‑one with glasses and one without. In arguing that the procedure employed by the
Malden police was 'impermissibly suggestive,' see Simmons v. United States, 390
U.S. [370 Mass. 524] 377, 384, 88 S.Ct. 967, 19 L.Ed.2d
1247 (1968), Kostka places substantial reliance on the fact that, of the dozen
or so photographs shown to Mrs. Silverman, the only duplicates were of him.
[3] [4] We
note that such a practice is not impermissibly suggestive per se. See United States v. Cooper, 472 F.2d 64, 65‑‑66
(5th Cir. 1973). Cf. Commonwealth v.
Mobley, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNa), 344 N.E. 181 (1976). Nor was the
fact that only two of the photographs were of men wearing glasses enough to
make the procedure constitutionally defective under Simmons, particularly in
light of the fact that Mrs. Silverman picked out a picture of Kostka without
glasses.
[5]
Furthermore, the out‑of‑court identification of photographs less
than a week after the crime was close to the time Mrs. Silverman had seen
Kostka in the store (the night before the crime). Before the composite drawing appeared in the
local newspaper, she had spoken to the police (on the night of the crime) and
given them an accurate description of Kostka.
Because of
our conclusion that the trial judge was warranted in ruling, as he did, that
the pre‑trial identification process was valid, we need not determine
whether the 'in‑court identification was, by clear and convincing
evidence, based on observations of the (defendant) independent from the
challenged pre‑trial procedures.'
Commonwealth v. Mobley, supra at ‑‑‑ (FNb), 344 N.E.2d
at 185 (footnote omitted). We do note
that Mrs. Silverman testified on voir dire that she remembered the defendant's
face 'as clear as a bell' and she later stated in open court that there was
'(n)o question in (her) mind' that the defendant was the person who had been in
the store the night before the murder.
On the entire evidence, it is very clear that this was not a case in
which there was 'a very substantial likelihood of irreparable
misidentification.' Simmons v. United
States, supra 390 U.S. at 384, 88 S.Ct. at 971; Commonwealth v. Mobley, supra ‑‑‑
Mass. at ‑‑‑ (FNc), 344 N.E.2d 181.
3. Instructions
on the Consequences of a Verdict of Not Guilty by Reason of Insanity.
[6]
Kostka's third assignment of error is the trial judge's refusal to give
instructions on the consequences of a verdict of not guilty by reason of
insanity. Kostka bases this assignment[370 Mass. 525] of error on our decision
in Commonwealth v. Mutina, ‑‑‑ Mass. ‑‑‑, ‑‑‑
n. 12 (FNd), 323 N.E.2d 294, 302, (1975), in which we held that 'in all trials
and retrials after this date where the defense of insanity is fairly raised,
the defendant, on his timely request, is entitled to an instruction regarding
the consequences of a verdict of not guilty by reason of insanity.' Because Kostka's trial was held in October
and November of 1973, over one year before our decision in Mutina, Kostka was
not entitled to such an instruction, id. at ‑‑‑ ‑ ‑‑‑,
‑‑‑ n. 12 (FNe), 323 N.E.2d 294, and there was therefore no
error in this regard.
4. The Defense
of Insanity.
[7]
Kostka's final contention is that the trial judge erred in denying his motion
for a directed verdict of not guilty by reason of insanity, because the
Commonwealth failed, as matter of law, to prove him sane beyond a reasonable
doubt. Kostka presents a two‑step
legal analysis in reaching this conclusion.
He argues first that, when the issue of insanity is properly before the
trier of fact, the Supreme Court's decision in In re Winship, 397 U.S. 358, 90
S.Ct. 1068, 25 L.Ed.2d 368 (1970), makes the rule that the prosecution must
prove sanity beyond a reasonable doubt one of constitutional dimension. His argument then centers on a footnote in
Commonwealth v. Mutina, supra, ‑‑‑ Mass. at ‑‑‑
n.2 (FNf) 323 N.E.2d 294. From this he
argues that the Commonwealth may not constitutionally satisfy that burden by
reliance‑‑in whole or in part (FN4)‑‑on the so called
'presumption of sanity,' (FN5) in a case where there [370 Mass. 526] has
been uncontradicted expert testimony that the defendant was insane at the time
the crimes were committed. Kostka
concludes that, because the Commonwealth could not rely on the presumption of
sanity to meet its burden on the issue of sanity and because the other evidence
of sanity was so tenuous, a directed verdict was appropriate. (FN6)
[8] [9]
While we agree that under Massachusetts law the Commonwealth must, when the
defense of insanity has been raised, prove a defendant sane beyond a reasonable
doubt, we do not agree that Winship, Mutina, or the recent Supreme Court cases
referred to in Mutina compel the conclusion that the Commonwealth may not rely
on the 'presumption of sanity' to meet its burden even in a case where there is
uncontradicted expert testimony that the defendant was insane at the time he
committed the crime in question.
As part of
our consideration of the impact of Winship and other recent Supreme Court
decisions on the presumption of sanity as it is employed in Massachusetts, it
is
essential to examine the presumption of sanity as it has developed
both generally and in Massachusetts, and we turn first to that examination.
(a) The
General Purpose and Nature of the 'Presumption of Sanity.' In Davis v. United States, 160 U.S. 469, 486,
16 S.Ct. 353, 357, 40 L.Ed. 499 (1895), the court stated: '(T)he law presumes
that every one charged with crime is sane, and thus supplies in the first
instance the required proof of capacity to commit crime.' That the prosecution may rely on the
presumption in the absence [370
Mass. 527] of any evidence tending
to show insanity is the rule in all jurisdictions. W. R. LaFave & A. W. Scott, Jr., Criminal
Law s 40, at 312 (1972); H. Weihofen, Mental Disorder as a Criminal Defense 214‑‑215
& n.1 (1954), and cases cited. See
Annot., 17 A.L.R.3d 146, 167 (1968).
Although all jurisdictions consider insanity to be a defense and apply
the 'presumption of sanity' in a manner that makes it conclusive on the issue
of sanity until some evidence tending to show insanity is adduced, (FN7) at
that point the unanimity among jurisdictions ceases to exist.
Twenty‑eight
jurisdictions, including the Federal government and Massachusetts, provide
that, after evidence of insanity has been introduced into the case, the burden
devolves on the prosecution to prove the defendant's sanity beyond a reasonable
doubt. (FN8) Twenty‑three
jurisdictions, including the District of Columbia, consider insanity to be an
affirmative defense, and require that the defendant [370 Mass. 528] prove
insanity by a preponderance of the evidence. (FN9) One jurisdiction, Wisconsin, employs both of
these rules, depending on which definition of insanity the defendant relies on.
(FN10)
There is
further differentiation among those jurisdictions, like Massachusetts, in which
the prosecution bears the ultimate burden on the issue of insanity. In some jurisdictions, including a majority
of the Federal circuits, after a certain quantum of evidence tending to show
insanity has been introduced (FN11), the presumption loses all effect.
(FN12) However, in at least seven other
jurisdictions, of which Massachusetts is one, the 'presumption of sanity' does [370 Mass. 529] not disappear from the case.
Rather, the 'presumption' is considered to have at least some evidential
value. (FN13)
In those
jurisdictions which place the burden of proving insanity by a preponderance of
the evidence on the defendant, it is generally thought to be appropriate to
allow the jury to consider the presumption. (FN14)
Because of
these differences among the jurisdictions, it is difficult to make precise
generalizations about the purpose and nature of the presumption on the basis of
case law and statutes. Nor are the
commentators in accord about the presumption.
Compare W. R. LaFave & A. W. Scott, Jr., Criminal Law s 40, at 312
(1972), with A. Goldstein, The Insanity Defense 120‑‑121 (1967),
and H. Weihofen, Mental Disorder as a Criminal Defense 214‑‑219
(1954). Indeed, one leading commentator
has concluded that the 'use of the term presumption is only confusing.' McCormick, Evidence s 346, at 830 (1972).
Although
no precise rules governing the presumption in all jurisdictions can be stated
with complete accuracy, two general conclusions can be drawn. First, the presumption, as it has
traditionally been employed, may, in any given jurisdiction, have procedural or
evidential characteristics, or both. Second, the historic and continued variation
among jurisdictions suggests that the purpose and nature of the presumption
have traditionally been considered to be matters to be defined by courts and
legislatures as [370 Mass. 530] part of a jurisdiction's criminal
law, rather than by the Constitution.
Nevertheless,
there are constitutional limitations on a State's ability to define its
criminal law and procedure. See Mullaney
v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); cf. In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, the imposition of such limitations‑‑through
the due process clause of the Fourteenth Amendment‑‑is rare: 'state
courts are the ultimate expositors of state law . . . except in extreme circumstances.' Mullaney v. Wilbur, supra at 691 & n.11,
95 S.Ct. at 1886, citing Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 9i
L.Ed. 840 (1948), and Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875). The specific question we must address is whether
the presumption of sanity, as employed in Massachusetts, violates due
process. In order to make that inquiry
we must furst set out the specific purpose of the presumption as developed in
the Commonwealth.
[10] [11]
[12] (b) The Role of the 'Presumption of Sanity' in Massachusetts. In Massachusetts, the 'presumption of sanity'
operates procedurally while the facts underlying it operate substantively. As in all jurisdictions, the presumption
relieves the prosecution from adducing evidence of sanity in those cases in
which the question is not raised. In
cases where the question of insanity is raised, as in the instant case, the
facts underlying the presumption and the inference that may be drawn from those
facts provide a basis for the jury to determine that the defendant was sane
beyond a reasonable doubt at the time the crime was committed. In this sense, the 'presumption of sanity' is
merely an expression we have used to describe both 'the fact that a great majority
of men are sane,' Commonwealth v. Clark, 292 Mass. 409, 415, 198 N.E. 641, 645
(1935), and 'the probability that any particular man is sane,' id., from which
the jury may conclude that the defendant is sane. See Commonwealth v. Mutina, ‑‑‑
Mass. ‑‑‑, ‑‑‑ n.2 (FNg), 323 N.E.2d 294
(1975); Commonwealth v. Cox, 327 Mass. 609, 613, 100 N.E.2d 14 (1951). Furthermore, our past decisions make it clear
that it is not the presumption itself that is weighed as evidence; rather, the
jury weigh the facts underlying[370
Mass. 531] the presumption and the inferences that may
follow from those facts (Commonwealth v. Mutina, supra; Commonwealth v. Cox,
supra; Commonwealth v. Clark, supra; see H. Weihofen, Mental Disorder as a
Criminal Defense 217 (1954)), facts which are considered to be part of the jury's
'common experience that most people . . . are sane.' United States v. Dube, 520 F.2d 250, 255 (1st
Cir. 1975) (Campbell, J., concurring).
Because
the presumption serves two purposes in the Commonwealth, we do not think that
it can be accurately classified as a presumption. Similarly, although an inference may be drawn
from the facts underlying the presumption, we do not think that the presumption
and the facts underlying it may be properly termed an inference. We recognize that the 'presumption of sanity'
shares, but is not limited to, the characteristics of both presumptions and
inferences. We are reluctant to attempt
to classify the 'presumption of sanity' more precisely, and we do not believe
that such classification would be helpful to our present inquiry.
Having set
out the role of the presumption and the facts underlying it, we turn now to the
question whether use of the presumption in Massachusetts constitutes a
violation of due process in light of In re Winship, 394 U.S. 358, 90 S.Ct. 1068, 25
L.Ed.2d 368 (1970), and other relevant cases.
(c) The
Effect of Winship and Other Supreme Court cases. The critical language in Winship is the
court's explicit holding that 'the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.' 397 U.S. at 364, 90 S.Ct. at 1073. It has long been the law of this Commonwealth
that, when the defendant's sanity is in issue, the prosecution bears the burden
of proving sanity beyond a reasonable doubt.
In Commonwealth v. Johnson, 188 Mass. 382, 388, 74 N.E. 939, 941 (1905),
it was said that the 'statements . . . that the burden of proof was upon the
Commonwealth to satisfy (the jury) beyond a reasonable doubt that (the
defendant) was . . . sane . [370
Mass. 532] . . (was) the law . . .
fully and correctly stated.' See also
Davis v. United States, 160 U.S. 469, 483, 16 S.Ct. 353, 40 L.Ed. 499
(1895). That the burden is on the
Commonwealth has often been reiterated.
See e.g., Commonwealth v. Mutina, ‑‑‑ Mass. ‑‑‑,
‑‑‑ n.2, (FNh) 323 N.E.2d 294 (1975); Commonwealth v. Smith,
357 Mass. 168, 177 (1970); Commonwealth v. Clark, 292 Mass. 409, 415, 198 N.E.
641 (1935). Even if, under Winship,
sanity is a 'fact' of the crime in such cases, the effect of Winship is not to
alter the prosecution's burden, but to make it one of constitutional
proportions.
[13] While
we believe that, under Winship, sanity becomes a 'fact' of the crime charged
after evidence of insanity has been adduced, we do not believe that sanity is
an 'element' of any given crime. (FN15)
Insanity is a defense to the crime charged. Although once the issue has been raised it is
necessary for the prosecution to prove sanity beyond a reasonable doubt, it is
not necessary for the prosecution to prove sanity‑‑nor would
instructions on the presumption of sanity be appropriate‑‑before
the issue is raised. See Davis v. United
States, 160 U.S. at 488, 16 S.Ct. 353 (1895).
This distinction‑‑between the 'elements' of the offense
charged and 'facts' which, after Winship, the prosecution must prove beyond a
reasonable doubt‑‑is important in determining the due process
standard to be applied to the presumption of sanity. (FN16) If sanity were an 'element' of the crime [370 Mass. 533] charged, then recent Supreme Court cases on the use of
presumptions and inferences to establish an element of the offense would be
apposite to our inquiry. Because sanity
is not an element of the crime charged, we do not think that cases like Barns
v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), Turner v.
United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), and
Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), (FN17)
which concerned the use of statutory and common law inferences to establish an
element of the crime charged, set forth the appropriate test. Rather, we think that the appropriate
standard is set out in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed.
1302 (1952).
In Leland,
the Supreme Court considered the constitutionality of the then existing Oregon
practice of requiring the defendant to prove his insanity beyond a reasonable
doubt. The court concluded that the
practice was constitutional. In making
that determination, the court set forth the applicable standard: whether the
'policy (in question) violates generally accepted concepts of basic standards
of justice.' Id. at 799, 72 S.Ct. at
1008. See also United States v. Caldwell
(D.C.Cir. 1974), rehearing denied (1975), cert. denied (1976). (FNi)
Although
this standard is of necessity imprecise, Leland provides other guidelines that
are helpful to our inquiry. The fact
that a challenged practice 'is followed by a large number of states . . . is
plainly worth considering in determining whether the practice 'offends some
principle of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental. '' Leland v. Oregon, supra at 798, 72 S.Ct. at
1007, quoting from Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78
L.Ed. 674 (1934). Cf. Mullaney v.
Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). However, the fact that a large number of
jurisdictions follow a certain rule 'is not conclusive' in such an
inquiry. Leland v. Oregon, supra at 798,
72 S.Ct. 1002.
[370 Mass. 534] It is true that only a minority of the jurisdictions requiring
the prosecution to prove the defendant's sanity beyond a reasonable doubt‑‑once
the issue has been raised by sufficient evidence‑‑allow the jury to
consider the presumption or the facts underlying the presumption. But the practice draws support from the
Supreme Court's decision in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353,
40 L.Ed. 499 (1895), a decision which is still frequently cited and which
remains vital. See, e.g., Mullaney v.
Wilbur, supra at 702‑‑703 n. 31, 95 S.Ct. 1881; United States v.
Caldwell, supra (denial of rehearing); (FNj) United States v. Dube, 520 F.2d
250, 254 (1st Cir. 1975) (Campbell, J., concurring); State v. Lass, 228 N.W.2d
758, 768 (Iowa, 1975). In Davis, the
court explicitly stated that the presumption of sanity possessed evidential
value which the jury could consider; thus the court referred to 'the whole evidence,
including that supplied by the presumption of sanity' (emphasis supplied). 160 U.S. at 488, 16 S.Ct. at 358.
The view
of the presumption adopted in Massachusetts has also been adopted by the Court
of Appeals for the District of Columbia.
In Keys v. United States, 120 U.S.App.D.C. 343, 346 F.2d 824, 826, cert.
denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108 (1965), then Circuit Judge
Burger wrote: 'The presumption of sanity, whatever may be its evidentiary value
and weight, does not vanish from the case, as (defendant) would have it. That presumption is grounded on the premise
that the generality of mankind is made up of persons within the range of
'normal,' rational beings and can be said to be accountable or responsible for
their conduct; this premise is rooted in centuries of experience, has not been
undermined by contemporary medical knowledge, and justifies the
continuance of the presumption after introduction of evidence of insanity.'
In People
v. Silver, 33 N.Y.2d 475, 482‑‑483, 354 N.Y.S.2d 915, 921, 310
N.E.2d 520, 524 (1974), the New York Court of Appeals quoted with approval the
case of Brotherton v. People, 75 N.Y. 159, 163 (1878), for the proposition
that, when a jury question as to insanity is presented, "the presumption
of sanity, and the evidence, [370
Mass. 535] are all to be
considered." Several other
jurisdictions have also reached this result in recent cases, some of which
involved due process attacks on the use of the presumption as evidence for the
jury's consideration. See State v.
Daniels, 106 Ariz. 497, 501‑‑502, 478 P.2d 522 (1970); State v.
Lass, 228 N.W.2d 758, 768 (Iowa, 1975); People v. Gray, 57 Mich.App. 289, 296,
225 N.W.2d 733 (1975); State v. Wilson, 85 N.M. 552, 555, 514 P.2d 603
(1973). Cf. United States v. Dube, 520
F.2d 250, 255 (1st Cir. 1975) (Campbell, J., concurring).
Although
it is true that allowing the jury to consider the presumption is a minority
position among the jurisdictions that require proof of sanity beyond a
reasonable doubt, it is also true that, in those jurisdictions in which the
defendant bears the burden of persuasion on the issue of insanity, the
presumption is often submitted to the jury for their consideration. This view was articulated by the Maryland
Court of Appeals in Bradford v. State, 234 Md. 505, 513, 200 A.2d 150, 154
(1964), where the court stated that, in jurisdictions in which the burden of
persuasion is on the defendant, 'the presumption of sanity is an inference of
fact from which the trier of facts can draw conclusions of fact.' Accord, State v. King, 526 S.W.2d 58, 59
(Mo.App.1975). See H. Weihofen, Mental
Disorder as a Criminal Defense 216 (1954); Note, Burden of Proof of Insanity in
Criminal Cases, 15 Md.L.Rev. 157, 160‑‑161, 163‑‑164
(1955). Thus, it may well be that a
majority of jurisdictions in fact submit the presumption to the jury, with the
presumption (or the facts underlying it) having some evidential value. We think that, even if this were not the
case, our practice would still not run afoul of the Leland standards, for there
are fundamentally sound reasons for our practice.
[14]
First, there are situations in which a jury may justifiably conclude that a
defendant is not insane, despite uncontradicted testimony from the defendant's
experts that he is insane. In any given
case, the jury may have cogent reasons for disbelieving or disregarding such
testimony. The defendant's witnesses may
have examined him for such a short period of time, at a time so far removed
from [370 Mass. 536] the crime, or in such other
circumstances that the jury may properly conclude that the testimony is so
lacking in credibility or so insufficient in weight that it does not raise a
reasonable doubt. That jurors are the
ultimate judges of expert testimony and that such testimony is not conclusive
are concepts we have recently reaffirmed in cases involving the defense of
insanity. Commonwealth v. Costa, 360
Mass. 177, 274 N.E.2d 802 (1971).
Commonwealth v. Smith, 357 Mass. 168, 258 N.E.2d 13 (1970). Commonwealth v. Ricard, 355 Mass. 509, 246
N.E.2d 433 (1969). As we said in
Commonwealth v. Smith: 'The jury are . . . the sole judges of the credibility
and weight of all of the evidence on the issue of insanity. . . .
The jury are not compelled to believe any such testimony or opinions,
and the court cannot order them to do so by directing them to return verdicts
of not guilty by reason of insanity. . .
. The law should not, and does not, give
the opinions of experts on either side of the issue the benefit of
conclusiveness, even if there are no contrary opinions introduced at the
trial.' 357 Mass. at 178, 258 N.E.2d at
19.
[15]
Second, we believe that the facts underlying the presumption are within the
jury's common sense and knowledge and that it would be inappropriate and artificial
to forbid jurors to rely, at least in part, on their common experience. See Commonwealth v. Hosman, 257 Mass. 379,
386, 154 N.E. 76 (1926); United States v. Dube, 520 F.2d 250, 254‑‑255
(1st Cir. 1975) (Campbell, J., concurring).
Cf. Keys v. United States, 120 U.S.App.D.C. 343, 346 F.2d 824, 826,
cert. denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108 (1965). '(I)n deciding the issue of insanity in a
criminal case, the jury may infer that the defendant is sane from their common
knowledge of the fact that a great majority of men are sane, and of the
probability that any particular man is sane.'
Commonwealth v. Smith, supra at 179, 258 N.E.2d at 20. See Commonwealth v. Clark, 292 Mass. 409,
415, 198 N.E. 641 (1935).
[16]
Finally, it is, and has been for over seventy years, incumbent on the
Commonwealth to prove sanity beyond a reasonable doubt. This is not an insignificant burden, and is a
safeguard against erroneous convictions.
Thus, unlike almost half of the other jurisdictions, we have required [370 Mass. 537] this standard of proof on the fact of sanity after the question
has been raised. Even with the jury
being allowed to consider the facts underlying the presumption, this standard
must be met, or acquittal by reason of insanity is appropriate. We do not attempt to denigrate the proof
necessary to meet this standard by noting that at least twenty‑three
jurisdictions place the burden or persuasion on the issue on the defendant, but
we do think that the existence of that practice is relevant to our conclusion
that our practice does not violate 'generally accepted concepts of basic
standards of justice.' Leland v. Oregon,
343 U.S. 790, 799, 72 S.Ct. 1002, 1008, 96 L.Ed. 1302 (1952). (FN18)
[17]
Because of our conclusion that the presumption of sanity, as used in
Massachusetts, does not violate due process, we find no error in the trial
judge's refusal to direct a verdict of not guilty by reason of insanity.
5. Disposition
Under G.L. c. 278, s 33E.
Although
Kostka has not argued that we should set the verdict aside under G.L. c. 278, s
33E, because it was against the weight of the evidence, 'we are required 'to
consider the whole case broadly to determine whether there was any miscarriage
of justice. '' Commonwealth v. Mutina, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNk), 323 N.E.2d 294, 295,
(1975), quoting from Commonwealth v. Ransom, 358 Mass. 580, 583 (1970), and
Commonwealth v. Baker, 346 Mass. 107, 109, 190 N.E.2d 555 (1963). After examination of the transcript and the record
pursuant to our duties under s 22E, a majority of the court conclude that the
verdict should not be set aside.
We believe
that the instant case can be distinguished
[370 Mass. 538] readily from the
cases in which we have determined that the defendant's evidence of insanity was
so compelling that reversal under s 33E was appropriate. In Commonwealth v. Mutina, supra, the
defendant approached the murder victim as she returned home from a date one
evening, stared at her and her companion for about a minute, and then fired two
shots, one of which killed her. In
Mutina, like the case of Commonwealth v. Cox, 327 Mass. 609, 100 N.E.2d 14 (1951), there was
neither an intelligent plan nor a rational motive for the murder. In Cox, the defendant attempted to kill his
wife by bludgeoning her with a hammer while she was playing the piano; not
being immediately successful, he then lacerated her body with an ice pick and
attempted to strangle her with a wire.
[18] The
facts of the instant case, on the other hand, warrant an inference by the jury
that Kostka engaged in a carefully considered, intelligent plan to commit the
crimes with which he is charged. It
could be found that his motive was profit.
As we have noted, the testimony of Mrs. Silverman permitted the
conclusion that Kostka planned to rob the store at a time when only he and a
salesperson would be present. Further,
his threats to the girls in the store were clearly for the purpose of assuring
his escape. The jury could properly
consider these examples of restraint and caution as relevant to the dual tests
(Commonwealth v. McHoul, 352 Mass. 544, 546, 226 N.E.2d 556 (1967)) of sanity,
viz.: capacity to appreciate the wrongfulness of his conduct, and to conform
his conduct to the requirements of the law.
That the circumstances of the crime may be relied on to help establish
sanity at the time the crime has committed is a principle that was firmly
established in Commonwealth v. Smith, 357 Mass. 168, 178‑‑180, 258
N.E.2d 13 (1970), and one that is widely accepted. See W. R. LaFave & A. W. Scott, Jr.,
Criminal Law s 40, at 315 (1972); H. Weihofen, Mental Disorder as a Criminal
Defense 312‑‑315 (1954); Annot., 17 A.L.R.3d 146, 179‑‑181
(1968 & Supp. 1975), and cases cited.
Furthermore,
although there was no expert testimony that Kostka was sane at the time the
crimes were committed,[370 Mass. 539]
we think it particularly significant that Dr. Christy, who had known
Kostka for a period of years and was quite familiar with his medical history,
did not have an opinion whether Kostka was insane at the time the crimes were
committed. Although Dr. Mezer testified
that Kostka was insane at that time, we note that the jury, because of the
brevity of the relationship between Kostka and Dr. Mezer, would have been
justified in according little weight to Dr. Mezer's conclusion.
Accordingly,
after reviewing the entire evidence under s 33E, we conclude that justice does
not require the ordering of a new trial, and does not require us otherwise to
disturb the verdict of the jury.
Judgments
affirmed.
HENNESSEY,
Chief Justice (dissenting in part, with whom KAPLAN, J., joins).
I have
written the main opinion for the court, and included in the final part of that
opinion is a summary of the majority's reasoning in declining to act under s
33E. Of course I concur that there is no
legal error in these proceedings.
Nevertheless, I disagree with the court's decision not to exercise its
discretion under s 33E and my conclusion on this issue is so firm as to warrant
this separate opinion.
It is my
view that, because of the extensive evidence of long‑standing mental
illness, including the uncontradicted expert testimony that Koskta was insane
at the time he committed the crimes for which he was convicted, 'justice in
(this) particular case' (Commonwealth v. Geraway, 364 Mass. 168, 184, 301
N.E.2d 814, would best be served by reversal of Kostka's conviction under G.L.
c. 278, s 22E. This court has recently
stated the basis for and the limitations on such a reversal in Commonwealth v.
Mutina, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNa), 323 N.E.2d 294 (1975), and I need not repeat here what was said in
Mutina. However, I do note that '(t)here
was no medical testimony that (Kostka) was responsible. The fact that most men are sane, and a rational
probability that [370 Mass. 540] the defendant, too, may have been
sane on (the date of the crimes) . . . seem . . . inadequate reasons upon which
to disregard (the uncontradicted) medical opinion that he was not.' Commonwealth v. Cox, 327 Mass. 609, 615, 100
N.E.2d 14, 17 (1951). In this case,
'(t)he fact that the (Commonwealth) chose to rely on the presumption rather
than . . . (introduce) contradictory proof is inexplicable.' People v. Silver, 33 N.Y.2d 475, 483, 354
N.Y.S.2d 915, 922, 310 N.E.2d 520, 525 (1974).
It is fair to infer either that the Commonwealth was unsuccessful in a
search for a medical expert who would support the Commonwealth's position, or
else the Commonwealth made no attempt to obtain such expert assistance. Although the presumption plays a role in a
case such as this, I suggest that the Commonwealth runs the very real risk of
reversal and the granting of a new trial if it chooses to rely on the
presumption and the circumstantial evidence of sanity such as that adduced at
this trial, rather than to introduce medical evidence of sanity. (FN1) Cf. Commonwealth v. Mutina, ‑‑‑
Mass. ‑‑‑ (FNb), 323 N.E.2d 294 (1975); Commonwealth v. Cox,
supra.
Because I
suspect that the verdict 'was not due to a careful consideration of the evidence,
but (rather) that it (may have been) the product of bias, misapprehension or
prejudice,' Scannell v. Boston Elevated Ry., 208 Mass. 513, 514, 94 N.E. 696
(1911), quoted in Commonwealth v. Mutina, supra at ‑‑‑ (FNc),
323 N.E.2d at 297. I think that justice
would best be served by a retrial at which Kostka would be entitled, on his
motion, to the Mutina instructions on the consequences of a verdict of not
guilty by reason of insanity.
FN1. The author of this opinion concurs that there
is no error, but disagrees with the court's conclusion that no discretionary
relief should be afforded under G.L. c. 278, s 33E. For that reason, unusually enough, the author
has filed a separate dissenting opinion, infra, as to that one factor.
FN2.
Kostka also presented a number of lay witnesses who testified to certain
events. Their testimony need not be
summarized here.
FN3.
Dr. Christy noted that Kostka had been 'off and on medication' over a
period of time. There was also testimony
that, on the night of October 15, 1973, Kostka ingested part of a light
bulb. This resulted in the jury
selection process being delayed for several days.
FNa.
Mass.Adv.Sh. (1976) 717, 723.
FNb.
Mass.Adv.Sh. (1976) at 723‑‑724.
FNc.
Mass.Adv.Sh. (1976) at 721.
FNd.
Mass.Adv.Sh. (1975) 375.
FNe.
Mass.Adv.Sh. (1975) at 376‑‑377,
394 n. 12.
FNf.
Mass.Adv.Sh. (1975) at 382 n. 2.
FN4.
The Commonwealth argues that it did not rely solely on the 'presumption
of sanity' to prove Kostka sane beyond a reasonable doubt. It points to the testimony of Mrs. Silverman‑‑from
which it could be inferred that Kostka engaged in a rational, intelligent plan
to rob the store‑‑and to that of the nurse and correction officer.
FN5.
Although it is necessary to use the term 'presumption' in order to
relate our discussion to other jurisdictions and to various texts, we do not,
and have not in the past, suggested the use of the term 'presumption' in jury
instructions. The instruction which we
have repeatedly approved, and approve once more in this case, is one which
permits the jury to consider that a great majority of men are sane and the
probability that any particular man is sane.
See cases cited infra. For an outline
of a charge to a jury on the insanity issue, see Commonwealth v. Costa, 360
Mass. 177, 185‑‑186, 274 N.E.2d 802 (1971).
FN6.
In support of this conclusion, Kostka relies almost exclusively on the
recent New York Court of Appeals decision in People v. Silver, 33 N.Y.2d 475,
354 N.Y.S.2d 915, 310 N.E.2d 520 (1974).
While it is true that the court in Silver ordered that the indictment be
dismissed, see id. at 483, 354 N.Y.S.2d at 922, 310 N.E.2d at 525, the court
based this on its statement that '(t)he fact that the prosecutor chose to rely
on the presumption rather than meet . . . (the defendant's evidence of
insanity) with contradictory proof is inexplicable.' However, the court left standing the
traditional New York rule that the presumption may be submitted to the jury for
their consideration, see id. at 482, 354 N.Y.S.2d 915, 310 N.E.2d 520, a
proposition which Kostka challenges on appeal.
Consequently, Silver may not be so helpful to Kostka as his brief
suggests it is.
FN7.
Such evidence may enter the case during the prosecution's case in chief,
either as a result of the prosecutor's direct questioning or the defense's
cross‑examination of prosecution witnesses. W. R. LaFave & A. W. Scott, Jr., Criminal
Law s 40, at 312‑‑313 (1972).
See Annot., 17 A.L.R.3d 146, 170‑‑171 (1968), and cases
cited.
FN8.
Commonwealth v. Mutina, ‑‑‑ Mass. ‑‑‑,
‑‑‑ n. 2 (1975) (Mass.Adv.Sh. (1975) 375, 382 n. 2), 323
N.E.2d 294. Davis v. United States, 160
U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Dolchok v. State, 519 P.2d 457, 458
(Alas.1974). State v. Cooper, 111 Ariz.
332, 529 P.2d 231, 233 (1974). People v.
Johnson, 180 Colo. 177, 178, 503 P.2d 1019 (1972). State v. Davis, 158 Conn. 341, 355‑‑356,
260 A.2d 587 (1969), vacated in part, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d
750, on remand, 163 Conn. 642, 316 A.2d 512 (1972). Byrd v. State, 297 So.2d 22, 23 (Fla.
1974). State v. Moeller, 50 Hawaii 110,
121 (1967). State v. Myers, 94 Idaho
570, 573, 494 P.2d 574 (1972). People v.
Bassett, 56 Ill.2d 285, 296, 307 N.E.2d 359 (1974). Stamper v. State, 260 Ind. 211, 213, 294 N.E.2d
609 (1973). State v. Thomas, 219 N.W.2d
3, 5 (Iowa, 1974). State v. Lamb, 209
Kan. 453, 473, 497 P.2d 275 (1972).
Robinson v. State, 249 Md. 200, 225‑‑226, 238 A.2d 875,
cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265 (1968). People v. Livingston, 57 Mich.App. 726, 732,
226 N.W.2d 704 (1975). Warren v. State,
285 So.2d 756, 758 (Miss. 1973). State
v. Jacobs, 190 Neb. 4, 6, 205 N.W.2d 262, cert. denied, 414 U.S. 860
(1973). State v. Snow, 98 N.H. 1, 4, 93
A.2d 831 (1953). State v. Lujan, 87 N.M.
400, 403, 534 P.2d 1112 (1975). People
v. Silver, 33 N.Y.2d 475, 479, 354 N.Y.S.2d 915, 310 N.E.2d 520 (1974). Whisenhunt v. State, 279 P.2d 366, 371
(Okl.Cr.1954). Commonwealth v. Demmitt,
456 Pa. 475, 482‑‑483, 321 A.2d 627 (1974). State v. Kindvall, 86 S.D. 91, 95
(1971). Collins v. State, 506 S.W.2d
179, 184 (Tenn.Cr.App. (1973). State v. Holt, 22 Utah 2d 109, 111, 449 P.2d
119 (1969). State v. Miner, 128 Vt. 55,
67, 258 A.2d 815 (1969). Rice v. State,
500 P.2d 675, 676 (Wyo.1972).
N.D.Century Code ss 12.1‑‑01‑‑03, 12.1‑‑04‑‑03
(Supp.1975).
FN9. United States v. Greene, 160 U.S.App.D.C. 21,
489 F.2d 1145, 1152 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 530, 42
L.Ed.2d 318 (1974). Griffin v. State,
284 Ala. 472, 475, 225 So.2d 875 (1969).
Stewart v. State, 233 Ark. 458, 460‑‑461, 345 S.W.2d 472,
cert. denied, 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed.2d 197 (1961). In re Franklin, 7 Cal.3d 126, 141, 101
Cal.Rptr. 553, 496 P.2d 465 (1972) (separate trial on insanity). Ray v. State, 262 A.2d 643, 645‑‑646
(Del.1970). Riggins v. State, 226 Ga.
381, 382, 174 S.E.2d 908 (1970).
Henderson v. Commonwealth, 507 S.W.2d 454, 458 (Ky.1974). State v. Link, 301 So.2d 339, 341
(La.1974). State v. Melvin, 341 A.2d
376, 379 (Me.1975). State v. Hoskins,
292 Minn. 111, 133, 193 N.W.2d 802 (1972).
State v. King, 526 S.W.2d 58, 59 (Ct.App.Mo.1975). State v. Olson, 156 Mont. 339, 344, 480 P.2d
822 (1971). Phillips v. State, 86 Nev.
720, 722, 475 P.2d 671 (1970). State v.
DiPaglia, 64 N.J. 288, 293, 315 A.2d 385 (1974). State v. Potter, 285 N.C. 238, 249, 204
S.E.2d 649 (1974). State v. Johnson, 31
Ohio St.2d 106, 117, 285 N.E.2d 751 (1972).
State v. Unsworth, 235 Or. 234, 237, 384 P.2d 207 (1963). State v. Page, 104 R.I. 323, 330, 244 A.2d
258 (1968). State v. Hinson, 253 S.C.
607, 620, 172 S.E.2d 548 (1970). Hogan
v. State, 496 S.W.2d 594, 597 (Tex.Cr.App.), cert. denied, 414 U.S. 862, 94
S.Ct. 81, 38 L.Ed.2d 112 (1973).
Bloodgood v. Commonwealth, 212 Va. 253, 254, 183 S.E.2d 737 (1971). State v. Canaday, 79 Wash.2d 647, 677, 488
P.2d 1064 (1971). State v. Camp, 110
W.Va. 444, 451, 158 S.E. 664 (1931).
FN10. State ex rel. Schopf v. Schubert, 45 Wis.2d
644, 648, 173 N.W.2d 673 (1970) (burden on State under M'Naghten test; burden
on defendant under Model Penal Code test).
FN11. The amount of evidence necessary to vitiate
the presumption varies within these jurisdictions. Some jurisdictions require only 'some' or
'slight' evidence of insanity, while others require evidence that raises a 'reasonable
doubt' as to the defendant's sanity.
Annot., 17 A.L.R.3d 146, 172‑‑177 (1968 & Supp.1975),
and cases cited. The latter rule appears
to be the majority rule within these jurisdictions. W. R. LaFave & A. W. Scott, Jr., Criminal
Law s 40, at 313 (1972).
FN12. See, e.g., United States v. Dube, 520 F.2d
250, 251 (1st Cir. 1975); United States v. Shackelford, 494 F.2d 67, 70 (9th
Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2647, 41 L.Ed.2d 237 (1974); United
States v. Jacobs, 473 F.2d 461, 464 (10th Cir.), cert. denied, 412 U.S. 920, 93
S.Ct. 2740, 37 L.Ed.2d 147 (1973); Byrd v. State, 297 So.2d 22, 23 (Fla. 1974);
Commonwealth v. Demmitt, 456 Pa. 475, 482, 321 A.2d 627 (1974).
FN13. Commonwealth v. Smith, 357 Mass. 168, 179‑‑180,
258 N.E.2d 13 (1970). Keys v. United
States, 120 U.S.App.D.C. 343, 346 F.2d 824, 826, cert. denied, 382 U.S. 869, 86
S.Ct. 144, 15 L.Ed.2d 108 (1965). State
v. Daniels, 106 Ariz. 497, 501‑‑502, 478 P.2d 522 (1970). State v. Lass, 228 N.W.2d 758, 768 (Iowa,
1975). People v. Gray, 57 Mich.App. 289,
296, 225 N.W.2d 733 (1975). State v.
Wilson, 85 N.M. 552, 555, 514 P.2d 603 (1973).
People v. Silver, 33 N.Y.2d 475, 482, 354 N.Y.S.2d 915, 310 N.E.2d 520
(1974). See Davis v. United States, 160
U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499 (1895).
FN14. H. Weihofen, Mental Disorder as a Criminal
Defense 219 (1954) ('in the(se) jurisdictions . . . the presumption of sanity
(or at least the inference of sanity) does weigh against evidence . . .'). See
Bradford v. State, 234 Md. 505, 513, 200 A.2d 150, 154 (1964) (in such
jurisdictions 'the presumption of sanity is an inference of fact from which the
trier of facts can draw conclusions of fact').
See also State v. King, 526 S.W.2d 58, 59 (Mo.App.1975); Note, burden of
Proof of Insanity in Criminal Cases, 15 Md.L.Rev. 157, 160‑‑161,
163‑‑164 (1955).
FNg. Mass.Adv.Sh.
(1975) 375, 382 n. 2.
FNh. Mass.Adv.Sh.
(1975) 375, 382 n. 2.
FN15. We believe that this distinction is
consistent with the test we have adopted for determining whether a defendant is
insane. In Commonwealth v. McHoul, 352
Mass. 544, 546, 226 N.E.2d 556 (1967), we concluded that the Model Penal Code
definition of insanity was the best statement of our test for insanity. We do not believe that a defendant's mental
disease or defect which results in his lack of 'substantial capacity either to
appreciate the criminality (wrongfulness) of his conduct or to conform his
conduct to the requirements of law' (Model Penal Code s 4.01 (Proposed Official
Draft 1962)) bears any 'necessary relationship to the existence or nonexistence
of the required mental elements of the crime (charged).' Mullaney v. Wilbur, 421 U.S. 684, 706, 95
S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring). See Leland v, Oregon, 343 U.S. 790, 795, 72
S.Ct. 1002, 96 L.Ed. 1302 (1952); id. at 804, 72 S.Ct. 1002 (Frankfurter, J.,
dissenting); Gerber, Is The Insanity Test Insane?, 20 Am.J.Jur. 111, 131‑‑132
(1975); cf. United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973),
cert. denied, 419 U.S. 977, 95 S.Ct. 530, 42 L.Ed.2d 318 (1974).
FN16. Although there is such a distinction, it is
clear that all of the elements necessary to prove commission of the offense
charged are 'facts' within the meaning of Winship. See Mullaney v. Wilbur, 421 U.S. 684, 699 n.
24, 95 S.Ct. 1881, 1890, 44 L.Ed.2d 508 (1975).
But the term 'fact' is more inclusive than the term 'element.' Winship is not 'limited to a State's
definition of the elements of a crime.'
Ibid.
FN17. In Commonwealth v. Pauley, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(Mass.Adv.Sh. (1975) 2224, 2233‑‑2243), 331 N.E.2d 901 (1975), we
discussed these and other related cases at length, and we need not restate our
conclusions here.
FNi. No. 72‑‑1513 (D.C.Cir. Dec. 31,
1974), rehearing denied (Sept. 23, 1975), cert. denied, 96 S.Ct. 877, 47
L.Ed.2d 97 (1976).
FNj. No. 72‑‑1513, (D.C.Cir. Sept. 23,
1975).
FN18. We also believe that our practice is
consonant with Mr. Justice Frankfurter's dissent in Leland, in which he
disagreed with the majority's conclusion that it was constitutionally
permissible to place the burden of persuasion on the defendant. Mr. Justice Frankfurter stated: 'That a man's
act is not his, because he is devoid of that mental state which begets
culpability, is so exceptional a situation that the law has a right to devise
an exceptional procedure regarding it.
Accordingly, States may provide . . . that he on whose behalf the claim
of insanity is made should have the burden of showing enough to overcome the
assumption and presumption that normally a man knows what he is about and is
therefore responsible for what he does.'
343 U.S. at 804, 72 S.Ct. at 1010.
FNk. Mass.Adv.Sh.
(1975) 375, 377.
FNa. Mass.Adv.Sh.
(1975) 375, 377, 382‑‑383.
FN1. The Commonwealth need not be surprised by
reliance on the defense of insanity, as we have ruled that the Commonwealth,
pursuant to an appropriate motion, is entitled to notice of the defense. Gilday v. Commonwealth, 360 Mass. 170, 274
N.E.2d 589 (1971).
FNb. Mass.Adv.Sh.
(1975) 375.
FNc. Mass.Adv.Sh.
(1975) at 383.