|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Mandeville, 386
Supreme Judicial Court of Massachusetts,
Argued
Decided
William J. Leahy,
Michael J. Traft, Asst. Dist. Atty. (Peter J. Muse, Legal Asst. to the Dist.
Atty.,
Before [386
HENNESSEY, Chief Justice.
The
defendant appeals his convictions of murder in the first degree and armed assault
with intent to murder. He claims error
with respect to the following matters: (1) the exclusion of evidence which
allegedly tended to implicate another person in the murder; (2) the exclusion
of the defendant's proffered explanation of a statement elicited from him on
cross‑examination; (3) the admission in evidence of statements made by
the defendant to the police following his arrest; (4) the reading to the
deliberating jury of the stenographer's notes of the testimony of three
prosecution witnesses; (5) the jury instructions on the elements of malice and
intent; and (6) the admission of allegedly confidential communications
between the defendant and a psychologist.
In addition, the defendant asks this court to order a new trial or
reduce the verdict pursuant to G.L. c. 278, s 33E, on the grounds that there
was improper argument by the prosecutor and that there was substantial evidence
of the defendant's mental impairment.
For the reasons stated below, we affirm the judgments.
[386
Mr. Paul
Conley, an attorney who was employed as a staff psychologist at the
The
defendant took the stand and denied that he had shot Emily Kincaid or Donna
Lucas. He stated that on the evening of
the murder, he went to a drugstore to look at magazines, took a walk, and went
to bed. The next morning he went to
Emily Kincaid's apartment, saw the bodies of the two women, and left. He admitted to having a key to the apartment
at the time. He testified that he then
went to St. Jean's apartment in order to borrow a gun to kill
someone; however, he left without the gun.
The defendant admitted talking to St. Jean, Mr. Conley, the emergency
medical technician, and the mental health worker, but he denied making the
admissions that they attributed to him.
1. Evidence Tending to Implicate Another Person in the
Crime.
[1] The
defendant sought to have Paul Kincaid, who was Emily's estranged husband at the
time of the murder, testify as to certain telephone conversations between Paul
and [386 Mass. 397] Emily. Paul would have testified that Emily, on
several occasions during the two or three weeks prior to the murder, telephoned
Paul and stated that one O'Brien would not leave her apartment and was
threatening her, and that she asked Paul to help her in ejecting him. The Commonwealth objected on the ground that
the testimony was inadmissible as a husband‑wife conversation, and the
judge excluded it on that ground. See
G.L. c. 233, s 20. Also excluded was
Paul's testimony that, when Sergeant Griffin, an investigating officer, told
Paul of his wife's murder, Paul stated that he would "take care of"
O'Brien, and "get that son of a bitch."
With
respect to the conversations between Emily and Paul Kincaid, the defendant
argues that the Commonwealth failed to show that the conversations were
private, and that the burden of proving that a husband and wife conversation
was private rests on the objecting party.
Cf. K. B. Hughes, Evidence s 125, at 109 & n.33 (1961). We need not decide this issue, for even if we
assume that the ground relied on by the judge was erroneous, we conclude that
the evidence was not admissible for other reasons, stated below. It is the general rule that no error will be
found when an incorrect specific objection is sustained, if some other proper
ground for exclusion exists. Rubin v.
Arlington, 327 Mass. 382, 385, 99 N.E.2d 30 (1951). 1 J. Wigmore, Evidence s 18, at 342 (3d ed.
1940). ([FN2]) Where the evidence is inadmissible on one
ground, the fact that the judge relied upon some other incorrect ground for
excluding the evidence should not require reversal, since a retrial would
probably only result in the exclusion of the evidence on the proper ground.
[2] [386 Mass. 398] The evidence of what Emily said to Paul on the telephone was
inadmissible hearsay. The defendant does
not call to our attention any exception to the hearsay rule that might apply
here, and we find none. ([FN3]) The statements made by Emily to Paul were
also excludable on relevancy grounds for the same reasons that we discuss below
in relation to Paul Kincaid's statement to Sergeant Griffin.
[3] The
statements made by Paul Kincaid to Sergeant Griffin when he was told of his
wife's murder, that he would "take care of" O'Brien, were properly
excluded as irrelevant and tending to mislead the jury. ([FN4])
The conclusion to be drawn from those statements, that Paul
suspected O'Brien as the murderer, would have no tendency to prove that O'Brien
was actually the murderer. See Commonwealth
v. Vitello, 376 Mass. 426, 440, 381 N.E.2d 582 (1978) ("(e) vidence is
relevant if it renders the desired inference more probable than it would be
without the evidence"), and authorities cited. See also Proposed Mass.R.Evid. 401 (July,
1980). At most, it was an expression of
opinion concerning O'Brien's involvement in the murder, and regardless of its
hearsay character, was inadmissible for that reason. Commonwealth v. Hesketh, 385 Mass. 153, 161‑162,
434 N.E.2d 238 (1982). Commonwealth v.
Ross, 339 Mass. 428, 435, 159 N.E.2d 330 (1959). Such an opinion would only have served to
confuse the jury.
[4] The
defendant argues that the exclusion of the evidence concerning O'Brien deprived
him of the opportunity to [386 Mass.
399] present his defense, thereby
denying him a fair trial. In support of
this argument he cites various cases holding that a defendant may introduce
evidence to show that another person committed the crime. E.g., Commonwealth v. Keizer, 377 Mass. 264,
268, 385 N.E.2d 1001 (1979); Commonwealth v. Graziano, 368 Mass. 325, 329, 331
N.E.2d 808 (1975); Commonwealth v. Murphy, 282 Mass. 593, 185 N.E. 486
(1933). The weakness of the defendant's
argument is that only the threats allegedly made by O'Brien to Emily had any
relevance to this end, and these statements were hearsay and lacked any
particular indicia of reliability.
Contrast Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973). No other evidence
was proffered which in any way connected O'Brien with the crime. Even if the evidence of O'Brien's threats was
not objectionable as hearsay, it would nevertheless be too conjectural and
misleading properly to be put before the jury.
In Commonwealth v. Abbott, 130 Mass. 472, 475‑476 (1881), it was
said that "(t)he existence of ill feeling as a motive for the commission
of crime will not alone justify submitting to a jury the question of the guilt
of a person entertaining such feeling.
It becomes material only when offered in connection with other evidence
proper to be submitted, showing that the person charged with such ill feeling
was in fact implicated in the commission of the crime." See Commonwealth v. Trefethen, 157 Mass. 180,
191, 31 N.E. 961 (1892). Such evidence
is "too weak in probative quality," Commonwealth v. Geraway, 355
Mass. 433, 441, 245 N.E.2d 423, cert. denied, 396 U.S. 911, 90 S.Ct. 226, 24
L.Ed.2d 186 (1969), and would merely tend to mislead the jury.
2. The Defendant's Explanation of His Testimony
Elicited on Cross‑Examination.
On cross‑examination
the defendant testified that he told St. Jean that he wanted to borrow his gun
to kill someone. When the prosecutor
asked whom he had said he wanted to kill, the defendant answered "Tom
O'Brien." The defendant then
admitted that he had never met O'Brien, and the prosecutor asked, "So you
wanted to kill a person you had never met?
Is that right?" The
defendant answered, "That is correct." On redirect the defendant attempted to [386 Mass. 400] explain that he had said this to St. Jean because he had been
told by Emily Kincaid that O'Brien had threatened her. The testimony was excluded, and the
defendant's rights were saved.
[5][6] We
agree with the defendant that he should have been permitted to explain his
statement. It is well established that a
witness may explain, modify, or correct damaging testimony that was elicited on
cross‑examination. Commonwealth v.
Ferreira, 373 Mass. 116, 130‑131, 364 N.E.2d 1264 (1977). Commonwealth v. Fatalo, 345 Mass. 85, 185
N.E.2d 754 (1962). Commonwealth v.
Smith, 329 Mass. 477, 479‑481, 109 N.E.2d 120 (1952). Mahoney v. Gooch, 246 Mass. 567, 570, 141
N.E. 605 (1923). See Commonwealth v.
Hicks, 375 Mass. 274, 277‑278, 376 N.E.2d 558 (1978). The effect of the defendant's testimony on
cross‑examination was to suggest that the defendant had no apparent
reason for wanting to kill O'Brien, thus leaving the impression that the story
was a product of fabrication. The
defendant had a right to show that he did have a reason for wanting to kill
O'Brien. It makes no difference that the
defendant's explanation was based on the out‑of‑court statements of
Emily Kincaid previously excluded as hearsay.
Those statements were relevant to explain the defendant's state of mind,
a matter that had been put in issue by the prosecutor.
[7]
Although we conclude that the exclusion of the defendant's explanation offered
on redirect examination was improper, we nevertheless think that in the
circumstances the error was harmless.
Because the judge had earlier excluded the evidence of O'Brien's alleged
involvement in the murder, the defendant's testimony related to a subject that
was wholly collateral to the issue then being tried. Compare Commonwealth v. Fatalo, supra;
Commonwealth v. Smith, supra. The
defendant's testimony was also contradicted by St. Jean's account of the
conversation, and in general was not such as to inspire belief. Moreover, the evidence of the defendant's
guilt was substantial. We therefore
conclude that any prejudice to the defendant arising from this error would not
have affected the result.
[386 Mass.
401] 3. Statements Made to the
Police Following the Arrest.
The
defendant was arrested in his apartment on February 23, 1976. On the way to the police station he answered
questions about his activities on the weekend of the murder. At trial he unsuccessfully sought to exclude
this evidence.
The
defendant first claims that his rights under the Sixth and Fourteenth
Amendments to the United States Constitution were violated when the police
failed to secure the presence of his attorney prior to questioning him after
his arrest. The police had been in
contact with the defendant's attorney on two occasions in the week preceding
the arrest, and on the earlier occasion (six days prior to the arrest), the
attorney had told them that the defendant did not wish to speak to the police
at that time.
[8][9][10]
The attorney's statement to the police six days prior to the arrest cannot
reasonably be construed to apply to the day of the arrest. If a suspect is not in custody, a refusal to
speak to the police does not thereby insulate him from all police interrogation
for the indefinite future. The record
does not indicate that the attorney or the defendant asked that the attorney's
presence be secured at the time of the arrest.
Compare Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d
977 (1964). The defendant also argues
that there is an independent right to the assistance of counsel at the time of
an arrest. Commonwealth v. Smallwood,
379 Mass. 878, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 521, 526‑527,
401 N.E.2d 802, however, is fatal to the defendant's argument. In Smallwood, we held that the issuance of a
complaint and an arrest warrant does not constitute the commencement of
"adversary proceedings" entitling a defendant to the assistance of
counsel. Id. 379 Mass. at ‑‑‑,
(Mass.Adv.Sh. (1980)) at 526, 401 N.E.2d
802, quoting from Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240,
51 L.Ed.2d 424 (1977). See also
Commonwealth v. Simmonds, 386 Mass. 234, 237‑238, 434 N.E.2d 1270
(1982). In Smallwood, as here, the
police knew that the defendant was represented by an attorney. The defendant's reliance on Estelle v. Smith,
451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), is misplaced and requires
little comment other than to point out that in that case the defendant already
had been indicted and counsel had been appointed at the time of the
interrogation. Cf. Edwards v. Arizona,
451 U.S. 477, 480‑482 n.7, 101 S.Ct. 1880, 1882‑1883 n.7, 68
L.Ed.2d 378 (1981).
[386 Mass. 402] The defendant next contends that his statements to the police
should have been suppressed because they were obtained in a manner contrary to
the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). When the defendant was
arrested he was read his Miranda rights from a standardized card. The recitation of rights ended with the
question, "Having these rights in mind, do you wish to talk to us
now?" The defendant did not respond to the question, and no other
questions were asked at that time. After
putting on a jacket, the defendant was handcuffed, taken outside, and put into
a police cruiser. Four police officers
accompanied him in the car to the police station. During the questioning in the car, he
"took the Fifth Amendment" to certain questions and answered
others. At the end of the interrogation
he was asked if he would agree to take a polygraph test, to which he responded
that he wanted to consult an attorney.
([FN5]) The defendant does not
dispute that the statements were voluntarily made.
[11]
Although the issue is a close one, we conclude that it was not error to admit
the defendant's statements in evidence.
The defendant contends that his failure to respond to the question read
to him from the Miranda card constitutes an expression of a desire to remain
silent, and that the police did not scrupulously honor this desire when they
proceeded to question him in the car. He
correctly states the law that, when an individual has indicated a desire to
remain silent or consult an attorney, any questioning must cease, Miranda v.
Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966), and the
decision to cut [386 Mass. 403] off questioning must be
"scrupulously honored."
Commonwealth v. Brant, 380 Mass. 876, ‑‑‑,
Mass.Adv.Sh. (1980) 1473, 1479, 406
N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980),
quoting from Miranda, supra 384 U.S. at 479, 86 S.Ct. at 1630. We do not agree, however, that the
circumstances here indicate a desire on the part of the defendant to remain
silent. The defendant's momentary
silence, in the absence of other more specific questioning, simply does not
warrant the conclusion that the defendant wished to assert his right to remain
silent. ([FN6])
If it were
determined that a wish to remain silent had been expressed, we might agree with
the defendant that a violation of his Fifth Amendment rights would be
demonstrated. Where a desire to remain
silent was made known to the police, it is infrequent that a valid waiver of
constitutional rights will be found when only a short interval existed between
the time when a defendant asserted his right to terminate questioning and the
time when interrogation was subsequently resumed. ([FN7])
In the instant case, however, where there was no indication that the
defendant wanted not to be questioned, we think that the Commonwealth's burden
of proving a knowing and intelligent waiver of rights is somewhat lighter. To be sure, the burden remains a heavy
one. Miranda v. Arizona, 384 U.S. at
475, 86 S.Ct. at 1628. In Miranda, the
United States Supreme Court stated that "a valid waiver will not be
presumed simply from the silence of the accused [386 Mass. 404] after
warnings are given or simply from the fact that a
confession was in fact eventually obtained." Id.
See Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622
(1980) (per curiam). On the other hand,
the Supreme Court has made it equally clear that "the question of waiver
must be determined on 'the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the accused.'
" North Carolina v. Butler, 441
U.S. 369, 374‑375, 99 S.Ct. 1755, 1757‑1758, 60 L.Ed.2d 286 (1979),
quoting from Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed. 1461 (1938).
[12] When
the defendant was arrested, he did not appear to be intoxicated or upset. He asked to see the arrest warrants, and,
when presented with them, he examined them.
Most important, however, is the fact that in response to certain
questions he "took the Fifth Amendment" and refused to answer. Likewise, when asked if he wanted to take a
polygraph test, the defendant responded that he first wanted to consult an
attorney. We think that this selective
assertion of Fifth and Sixth Amendment rights exhibits a knowing and
intelligent decision to waive those rights as to the questions that he did
answer. When an individual "takes
the Fifth Amendment" as to certain questions and voluntarily answers other
questions, the conclusion is almost inescapable that the answers are made with
full knowledge of the right to remain silent.
Similarly, the defendant's refusal to take a polygraph test without first
consulting an attorney suggests that he understood his right to the assistance
of counsel. We conclude that, in the
circumstances of this case, the Commonwealth has met its burden of proving that
the defendant "knowingly and intelligently waived his privilege against
self‑incrimination." Miranda,
supra.
4. The Reading of Testimony to the Jury.
After the
jury had deliberated for some time, they requested to hear the testimony of
three witnesses, St. Jean, Seeley, and Schafer, regarding the conversations
that they had with the defendant. Over
the objection of the defendant, the judge allowed the entire testimony of the
three witnesses to be read to the jury.
After the testimony was read, the judge cautioned the jury not to give
that testimony any [386 Mass. 405] added emphasis. ([FN8])
The defendant contends that it was error to allow the testimony to be
read, on the ground that undue emphasis was placed on that part of the
Commonwealth's case.
[13][14]
The issue is one of first impression in this Commonwealth. In Commonwealth v. Ricketson, 5 Met. 412, 429
(1844), it was held that whether to receive further evidence upon request of
the jury after their deliberations had commenced is wholly within the discretion
of the trial judge. The precise question
before us now was raised in Ricketson, but was not decided. See also Commonwealth v. Allen, 256 Mass.
452, 455, 152 N.E. 739 (1926) ("(i)n the absence of the stenographer the
testimony could not be read to the jurors, and the judge was right in replying
that they must depend upon their memories of what had been
testified"). We note that the great
majority of other jurisdictions hold that whether to permit the reading to the
jury of stenographer's notes of testimony is within the sound discretion of the
trial judge. See Annot., 50 A.L.R.2d 176
(1956). See also III ABA Standards for
Criminal Justice, Trial by Jury 15‑4.2(b) (1980). We too hold that it is within the judge's
discretion to permit the testimony of a witness or witnesses to be read to the
jury. We emphasize, however, that such
discretion should be exercised with caution.
The reading of testimony may indeed overemphasize certain aspects of the
case. See United States v. Patterson,
644 F.2d 890, 898 (1st Cir. 1981); United States v. DePalma, 414 F.2d 394, 396
(9th Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690
(1970); Henry v. United States, 204 F.2d 817, 821 (6th Cir. 1953). Here, however, both the direct and [386 Mass. 406] cross‑examinations of the witnesses were read in their
entirety, and a cautionary instruction was given after the testimony was
read. In the circumstances we find no
error in the judge's decision.
5. The Instructions to the Jury.
The
defendant argues that the judge's charge to the jury improperly shifted to the
defendant the burden of proof with respect to the element of malice, contrary
to the law as stated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61
L.Ed.2d 39 (1979). In particular, the
defendant claims constitutional deficiency in that part of the judge's charge
which stated, "(I)f you find that one has assailed another with a
dangerous weapon likely to kill which does in fact destroy the life of the
party assailed, the natural presumption is that he intended the death or great
bodily harm." ([FN9]) We find no prejudicial error.
[15] In a
number of recent cases we have confronted the issue whether a particular jury
charge impermissibly shifted to the defendant the burden of disproving
malice. ([FN10]) In the instant case, no objection was made at
trial to the charge on malice. We
address the defendant's claim, however, pursuant to our broad powers under G.L.
c. 278, s 33E. In other cases we have
said that our expectations of the judge in charging the jury and of counsel in
raising appropriate objections will differ depending on whether the
constitutional[386 Mass. 407]
principles governing the issue were developed at the time the charge was
given. Commonwealth v. Chasson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1981) 724, 730‑731,
423 N.E.2d 306, and cases cited. The
defendant's trial took place in 1977, before Sandstrom, supra, but after
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and
Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976), the latter two
of which also bear on the issue raised here.
See Commonwealth v. Richards, ‑‑‑ Mass. ‑‑‑,
Mass.Adv.Sh. (1981) 1967, 425 N.E.2d
305; Commonwealth v. Callahan, 380 Mass. 821, 406 N.E.2d 385 (1980). We find it unnecessary to decide, however,
whether the applicable constitutional principles were developed at the time of
the defendant's trial, or even whether, under any standard of review, the jury
charge was constitutionally offensive.
[16][17]
The sole issue at trial was the identity of the murderer. "The record reveals 'no issue of
justification, mitigation, or lack of intent on the part of the perpetrator.'
" Commonwealth v. Pisa, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 1927, 1929, 425 N.E.2d 290,
quoting from Commonwealth v. Lee, ‑‑‑ Mass. ‑‑‑,
‑‑‑, Mass.Adv.Sh.
(1981) 1084, 1090, 419 N.E.2d 1378.
No instruction on manslaughter was given, and the defendant does not now
argue that one should have been.
"In such circumstances, the failure to object to the charge as to
malice cannot be attributed to inadvertance or lack of knowledge of evolving
constitutional doctrine. Rather, the
failure to object reflects a conscious choice of trial strategy by defense
counsel." Commonwealth v. Pisa,
supra ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑,
(Mass.Adv.Sh.1981) at 1928‑1929, 425 N.E.2d 290, quoting from
Commonwealth v. Lee, supra ‑‑‑ Mass. at ‑‑‑,
(Mass.Adv.Sh.1981) at 1089, 419 N.E.2d 1378.
See Commonwealth v. Tameleo, ‑‑‑ Mass. ‑‑‑,
‑‑‑, Mass.Adv.Sh.
(1981) 1934, 1936, 425 N.E.2d 287.
Even if the failure to object were attributable to lack of knowledge of
the law, as is contended, any error in the charge was harmless, since the
evidence did not support an inference of manslaughter. The defendant, however, attempts to avoid
this pitfall by arguing that there was sufficient evidence of mental impairment
to raise an issue of mitigation, namely, whether he was capable of deliberate
premeditation. See Commonwealth v.
Gould, 380 Mass. 672, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 1253, 1261‑1264,
405 N.E.2d 927. This argument fails for
two reasons. First, the issue of
mitigation by reason of mental impairment was not raised [386 Mass. 408] at
trial and was not adequately presented for the jury's consideration. Second, even if the issue had been raised, it
relates to the existence or nonexistence of deliberate premeditation, not
malice. This court has never recognized
mental impairment as a ground for distinguishing between malice and the lesser
showing of intent that is necessary to support a manslaughter conviction. See Commonwealth v. Gould, supra. See also Commonwealth v. Perry, 385 Mass.
639, 648‑650, 433 N.E.2d 446 (1982).
The judge's instruction on malice was not such as would have confused
the jury with respect to the burden of proof on deliberate premeditation.
[18] The
defendant also claims that the jury charge on the intent element of the
indictment charging assault with intent to murder unconstitutionally shifted
the burden of proof to him. However, as
we have stated, the only issue seriously disputed by the parties was the
identity of the assailant. The defendant
cannot now argue error on the basis of a theory that was not presented at
trial. Commonwealth v. Lee, supra ‑‑‑
Mass. at ‑‑‑ ‑ ‑‑‑ (Mass.Adv.Sh. (1981)) at 1089‑1090, 419 N.E.2d 1378.
6. The Communications Between the Defendant and Mr.
Conley.
Over the
objection of the defendant, the judge allowed Mr. Conley to testify as to the
conversations he had with the defendant on February 15 and 16, 1976. The defendant now claims that the testimony
should have been excluded on the basis of G.L. c. 233, s 20B, or alternatively,
on the basis of 42 U.S.C. s 4582 (1976).
We disagree.
[19]
General Laws c. 233, s 20B, grants to a "patient" the privilege of
preventing a witness from disclosing any communications made between himself
and his "psychotherapist." A
"psychotherapist" is defined under the statute as "a person
licensed to practice medicine who devotes a substantial portion of his time to
the practice of psychiatry or a person who is licensed as a psychologist by the
board of registration of psychologists; provided that such person has a
doctoral degree in the field of psychology." G.L. c. 233, s 20B, as amended by St.1977, c.
817. Mr. Conley was not [386 Mass. 409] licensed to practice psychiatry or psychology, nor did he have a
doctoral degree in either field.
Although he was educated in the field of psychology, and was employed at
the Dimock Community Health Center as a staff psychologist, this is not
sufficient to qualify him as a "psychotherapist" within the meaning
of G.L. c. 233, s 20B. The patient‑psychotherapist
privilege has never been recognized at common law. Commonwealth v. Gordon, 307 Mass. 155, 158,
29 N.E.2d 719 (1940). We are thus not
inclined here to extend the patient‑psychotherapist privilege beyond the
bounds established by the Legislature. See Usen v. Usen, 359 Mass. 453, 457, 269
N.E.2d 442 (1971). Compare Proposed
Mass.R.Evid. 503(a) (July, 1980).
([FN11])
[20] The
defendant nevertheless argues that Mr. Conley was an agent for a psychiatrist
who worked at the center. However, s 20B
provides that a patient may prevent a witness from disclosing "any
communication, wherever made, between said patient and a psychotherapist
relative to the diagnosis or treatment of the patient's mental or emotional
condition" (emphasis added). The
statute defines "patient" as "a person who, during the course of
diagnosis or treatment, communicates with a psychotherapist" (emphasis
added). We agree with the reasoning of
the Appeals Court in Commonwealth v. Clemons, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑, Mass.App.Adv.Sh. (1981) 1814, 1820‑1821, 427 N.E.2d 761,
that some confidential relationship must exist between a "patient"
and a "psychotherapist" before the privilege can be invoked. Until that is established, it is unnecessary
to consider whether the statute should be judicially extended to an agent or
assistant of the psychotherapist. There
was no evidence to show that there were
[386 Mass. 410] ever
confidential communications between the defendant and a
"psychotherapist" at the center.
The
defendant also alleges that the disclosure of his communications violated
Federal law, 42 U.S.C. s 4582 (1976).
See also 21 U.S.C. s 1175 (1976).
Those provisions create a limited confidentiality for records of the
"identity, diagnosis, prognosis, or treatment of any patient" which
are maintained in connection with the performance of any alcohol or drug abuse
program regulated or assisted by the Federal government. 21 U.S.C. s 1175(a) (1976) (relating to
programs for drug abuse). 42 U.S.C. s
4582(a) (1976) (relating to programs for alcohol abuse). It was stipulated at trial that the Dimock
Center, which employed Mr. Conley, was federally funded and therefore subject
to the Federal regulations interpreting these laws. ([FN12])
[21] The
regulations promulgated pursuant to ss 1175 and 4582 define "patient"
as "any individual (whether referred to as a patient, client, or
otherwise) who has applied for or been given diagnosis or treatment for drug
abuse or alcohol abuse ...." 42
C.F.R. s 2.11(i) (1981). The facts of
this case indicate that the defendant was not a "patient" at the
center when he made the incriminating statements to Mr. Conley. Although there was some suggestion that the
defendant had problems with alcohol, he never participated in any program at
the Dimock Center, and there is no showing that prior to the conversations he
ever received treatment at the center with respect to alcohol or drug related
problems. The defendant became
acquainted with Mr. Conley as a student at a course taught by Mr. Conley at
Middlesex Community College, which does not appear to have any affiliation with
the Dimock Center. The defendant called
Mr. Conley at his home, and was subsequently admitted to the Harvard Community
Health Center and [386 Mass. 411] later to the Glenside Hospital. Although Mr. Conley testified that the Dimock
Center was closed when the defendant called and that otherwise he would have
asked the defendant to come to the Dimock Center for psychiatric evaluation, we
do not consider Mr. Conley's intentions to be material. If anyone's intentions here are material,
they are
the defendant's, and the record does not disclose any intent on his
part to become a patient at the Dimock Center.
The defendant's stated purpose in calling Mr. Conley was to ask if the
beneficiary of a life insurance policy could obtain benefits if the death was
caused by suicide. In short, it appears
that when the defendant called Mr. Conley in search of psychiatric help, he was
calling him as a teacher and an acquaintance, not as an employee of the Dimock
Center. ([FN13])
7. Review Pursuant to G.L. c. 278, s 33E.
The
defendant asks this court to exercise its broad powers of review under s 33E to
grant a new trial or reduce the verdict to murder in the second degree. See Commonwealth v. Tavares, 385 Mass. 140,
157‑158, 430 N.E.2d 1198 (1982), and cases cited. It is argued that an exercise of our s 33E
powers is warranted for two reasons.
First, the defendant contends that the prosecutor made impermissible
statements in his closing argument to the jury.
Second, he states that there was substantial evidence at trial of the
defendant's mental impairment and that accordingly, under Commonwealth v.
Gould, 380 Mass. 672, 405 N.E.2d 927 (1980), this court should either grant a
new trial or reduce the verdict.
[22] No
objection was made to the allegedly improper portion of the prosecutor's
argument. Our inquiry is therefore
limited to determining whether the statements, when viewed against the
background of the entire case, were so prejudicial as to result in a
substantial risk of a miscarriage of justice.
Commonwealth v. Valliere, 366 Mass. 479, 494, 321 N.E.2d 625 (1974). Commonwealth v. Nordstrom, 364 Mass. 310, 313‑316,
303 N.E.2d 711 (1973). [386 Mass. 412] We have reviewed the arguments of the prosecutor and we find no
impropriety of any significance. It is
true that there was some misstating of the evidence on one matter. However, in that instance the inference that
the prosecutor drew from his version of the facts would not have been weakened
by a correct statement of the facts.
([FN14]) The other infractions by
the prosecutor, if infractions they were, are so minor as to warrant no
discussion. In any event, in light of
the strong case against the defendant, we conclude that if there was any
impropriety in the prosecutor's argument, it was not so prejudicial as to
warrant a new trial. Commonwealth v.
Fitzgerald, 376 Mass. 402, 416‑424, 381 N.E.2d 123 (1978). Commonwealth v. Earltop, 372 Mass. 199, 203‑204,
361 N.E.2d 220 (1977). Commonwealth v.
Nordstrom, supra 364 Mass. at 316, 303 N.E.2d 711.
[23] The
evidence of the defendant's mental impairment was also not such as to warrant
the exercise of our s 33E powers.
([FN15]) The defendant did not claim any lack of
criminal responsibility. He did not
offer expert testimony as to his mental condition at the time of the
murder. What testimony there was on the
subject related to his mental condition after [386 Mass. 413] the
murder, and even that evidence fell far short of suggesting that he was
incapable of deliberate premeditation.
([FN16]) Upon reviewing the
entire case pursuant to our duty under s 33E, we conclude that it would be
inappropriate to order a new trial or reduce the verdict.
Judgments
affirmed.
(FN1.) Mr. Conley was admitted to the Bar
after the events to which he testified and prior to the time of trial.
(FN2.)
McGivern v. Steele, 197 Mass. 164, 83 N.E. 405 (1908), is not to the
contrary. There the judge excluded
statements of a deceased person, erroneously relying on R.L. c. 175, s 66 (now
appearing, as amended, in G.L. c. 233, s 65), when in fact the statements would
have been admissible (as testimony recorded under oath) if the proponent had
been given the opportunity to lay the necessary foundation. Accordingly, the error was held to be
reversible.
(FN3.)
No effort was made at trial to qualify the statements as spontaneous
exclamations, or even as present sense impressions (the latter not having been
recognized in Massachusetts law). The
statutory exception for statements of deceased persons does not apply to
criminal cases. Commonwealth v. Gallo,
275 Mass. 320, 335, 175 N.E. 718 (1931).
See G.L. c. 233, s 65.
(FN4.)
The evidence was excluded on a general objection made by the Commonwealth. The defendant at trial did not rely on any
particular theory of admissibility, and on appeal he now contends that the
evidence was admissible to prove the state of mind of Paul Kincaid, or, in the
alternative, that the evidence was admissible as a spontaneous
exclamation. In light of our holding, we
need not address these arguments. See
H.E. Fletcher Co. v. Commonwealth, 350 Mass. 316, 214 N.E.2d 721 (1966); Palm
v. Kulesza, 333 Mass. 461, 131 N.E.2d 472 (1956) (sustaining of a general
objection is not error if the evidence is excludable on any ground).
(FN5.)
The defendant testified on voir dire that he had requested to see his attorney
immediately after he was given the Miranda warning. Although the trial judge did not make any
findings of fact, the defendant in his brief states the facts, as to this
event, according to the version given by the police, and we accept that version
as true.
There was
also evidence that the defendant had been drinking beer on the afternoon of the
arrest. Sergeant Griffin, however, did
not recall that he had observed any sign of intoxication on the defendant, and
the defendant's testimony did not tend to refute this. The evidence is thus insufficient to support
a finding that the defendant's mental capacity was impaired at the time of the
arrest.
(FN6.) The testimony of Sergeant Angelo
LaMonica, who gave the defendant the Miranda warning, suggests that the
question, "do you wish to talk to us now," was recited from the
standardized card without the expectation of a reply.
(FN7.) E.g., Edwards v. Arizona, 451 U.S. 477,
484‑485, 101 S.Ct. 1880, 1884‑1885, 68 L.Ed.2d 378 (1981);
Commonwealth v. Gallant, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, Mass.Adv.Sh.
(1980) 2031, 2033‑2034, 410 N.E.2d 704; Commonwealth v. Brant, 380
Mass. 876, 406 N.E.2d 1021 (1980), cert. denied, 449 U.S. 1004, 101 S.Ct. 545,
66 L.Ed.2d 301 (1980); Commonwealth v. Jackson, 377 Mass. 319, 321‑329,
386 N.E.2d 15 (1979); Commonwealth v. Taylor, 374 Mass. 426, 374 N.E.2d 81
(1978). See Brewer v. Williams, 430 U.S.
387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Michigan v. Mosley, 423 U.S. 96, 96
S.Ct. 321, 46 L.Ed.2d 313 (1975). To be
contrasted is Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040 (1978),
holding that statements made in close temporal proximity to the defendant's
request for counsel are admissible where the defendant on his own initiative
stated to the police that he wished to make a statement. Accord Edwards v. Arizona, supra.
(FN8.) The judge instructed the jury as
follows: "(The court reporter) has read back to you those portions of the
testimony requested by you. Of course,
it's your recollection of what was said on the witness stand when the witnesses
were present that would warrant your attention, and that you will not give any
added emphasis because I have allowed this examination and cross examination to
be read back to you, because it is the most recent thing you've heard. You will, of course, consider in your
deliberations all of the evidence that you feel is warranted in your opinions,
and you will give that evidence which you heard such weight as you feel is
warranted in your deliberations."
(FN9.)
Because we do not reach the merits of the defendant's constitutional claim
here, it is unnecessary to reproduce in full the judge's charge to the jury on
the element of malice. Ordinarily,
though, "(a) jury charge must be considered as a whole, not by bits and
pieces." Commonwealth v. Gibson,
368 Mass. 518, 527‑528, 333 N.E.2d 400 (1975).
(FN10.) Commonwealth v. Drayton, 386 Mass. 39,
53, 434 N.E.2d 997 (1982). Commonwealth
v. Palmer, 386 Mass. 35, 434 N.E.2d 983 (1982).
Commonwealth v. Bradshaw, 385 Mass. 244, 277‑278, 431 N.E.2d 880
(1982). Commonwealth v. Richards, ‑‑‑
Mass. ‑‑‑, Mass.Adv.Sh.
(1981) 1967, 425 N.E.2d 305.
Commonwealth v. Chasson, ‑‑‑ Mass. ‑‑‑,
Mass.Adv.Sh. (1981) 724, 423 N.E.2d
306. Commonwealth v. Repoza, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 2499, 2511‑2515,
414 N.E.2d 591. Reddick v. Commonwealth,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑, Mass.Adv.Sh.
(1980) 1959, 1965‑1968, 409 N.E.2d 764. Commonwealth v. Fitzgerald, 380 Mass. 840, ‑‑‑
‑ ‑‑‑, Mass.Adv.Sh.
(1980) 1433, 1437‑1438, 406 N.E.2d 389. Commonwealth v. Callahan, 380 Mass. 821, ‑‑‑
‑‑‑‑, Mass.Adv.Sh.
(1980) 1411, 1412‑1416, 406 N.E.2d 385. Commonwealth v. Medina, 380 Mass. 565, ‑‑‑
‑ ‑‑‑, Mass.Adv.Sh.
(1980) 1143, 1154‑1156, 404 N.E.2d 1228. Gibson v. Commonwealth, 377 Mass. 539, 387
N.E.2d 123 (1979). Commonwealth v. McInerney,
373 Mass. 136, 365 N.E.2d 815 (1977).
(FN11.) Rule 503(a) of the Proposed
Massachusetts Rules of Evidence might well produce a different result in this
case, inasmuch as it defines "psychotherapist" as "(i) a person
authorized to practice medicine in any state or nation, or reasonably believed
by the patient so to be, while engaged in the diagnosis or treatment of a
mental or emotional condition, including alcohol or drug addiction, or (ii) a
person licensed or certified in any category as a psychologist or social worker
under the laws of any state or nation, or reasonably believed by the patient so
to be, while similarly engaged" (emphasis added).
(FN12.) The record does not indicate whether
the Dimock Community Health Center was subject to both of the Federal statutes
or to only one of them. This makes no
difference, however, since the statutes are similar in all material respects,
and are both interpreted by the same set of regulations. 42 C.F.R. ss 2.1‑2.67‑1 (1981).
(FN13.) There was evidence that, at the time
of the arrest, the defendant told the police that "Paul (Conley) was a
good friend and a teacher and he went (to Conley's home) to discuss radios and
insurance."
(FN14.) Donna Lucas had testified that her
assailant wore a green Army‑type jacket.
The defendant on cross‑examination stated that he wore a navy pea
coat on the day after the murder, but subsequently admitted to owning an olive‑colored
Army jacket. The prosecutor in his
argument to the jury stated: "I asked him on cross examination ... 'Do you have such a jacket?' 'Yes, I have.' Then he tried to cover it up by saying that
he had a pea coat ...." Although
the chronology of the testimony as stated by the prosecutor differed from the
actual chronology at trial, the prosecutor's version was no more damaging than
a correct statement of the evidence would have been. This suggests that the prosecutor's error was
unintentional. The defendant also argues
that the inference that there was a "cover‑up" was unfair. Although the inference is at best a weak one,
we do not find it to be unfair. See
generally Commonwealth v. Earltop, 372 Mass. 199, 204‑205, 361 N.E.2d 220
(1977) (Hennessey, C. J., concurring).
(FN15.) Similar arguments based on
Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980), have been made in
several recent cases. Commonwealth v.
Brown, 386 Mass. 17, 32‑33, 434 N.E.2d 973 (1982). Commonwealth v. Prendergast, 385 Mass. 625,
634‑635, 433 N.E.2d 438 (1982).
Commonwealth v. Chubbuck, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1981) 2380, 2390‑2391, 429 N.E.2d
1002. Commonwealth v. Shelley, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Mass.Adv.Sh. (1980) 1899, 1912‑1914,
409 N.E.2d 732. See Commonwealth v.
Perry, 385 Mass. 639, 648‑649, 433 N.E.2d 446 (1982).
(FN16.)
The evidence of mental impairment consisted primarily of the defendant's
unsuccessful attempt at suicide by swallowing seventy antihistamine pills, and
his subsequent suicidal thoughts while at the Glenside Hospital. The defendant himself, however, states that
his suicidal thoughts were most likely a reaction to Emily's murder. We must therefore reject his assertion that
this evidence is indicative of a state of mental impairment existing at the
time of the murder.