18 Mass. App. Ct. 644 | Mass. App. Ct. | 1984
Lead Opinion
The defendant, Cullen, appeals from his convictions in the Superior Court on two counts of assault with intent to murder, two counts of assault and battery by means of a dangerous weapon, and one count of unlawful carrying of a firearm. Cullen’s sole defense at his jury-waived trial was lack of criminal responsibility as defined in Commonwealth v. McHoul, 352 Mass. 544 (1967), i.e., that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The issue on appeal is whether, as matter of law, the Commonwealth’s evidence sufficed to support the trial judge’s determination that Cullen was criminally responsible for the shootings. We determine that the evidence presented by the Commonwealth provided a legally sufficient basis for a finding of criminal responsibility. We cannot invade the province of the fact finder by substituting
After midnight on February 5, 1983, while driving past 338 Central Avenue in Milton, Officer Paul Nolan heard a “loud bang” at the rear of his marked cruiser. He called the station for a back-up, pulled over, and stepped out of his car, asking Cullen, who was standing in the driveway of his home, if he had seen what had happened. Cullen had recently returned home from six or more hours spent drinking with a friend. Cullen did not respond to Nolan’s inquiry. However, as Nolan came within twelve feet of him, repeating the question, Cullen drew a handgun, for which he had no license, from his waistband and began shooting at Nolan. The first bullet broke Nolan’s left arm. Another caught him in the knee as he dove for cover near a car parked in the Cullen driveway. Yet another shot passed through Nolan’s shirt and jacket without causing injury. Cullen then apparently disappeared behind his house, reemerging less than a minute later and firing upon Officer Charles Paris, who, by that time, was kneeling beside Nolan and radioing for help. Paris sustained a bullet wound in his back, which, as Paris testified, was turned toward Cullen at the time. Another shot damaged the portable radio on Nolan’s hip. Turning, Paris fired four times in the direction of Cullen’s muzzle flashes. Cullen fled.
Additional police then arrived and almost immediately received a radio report of an attempted break-in at 352 Central Avenue, the residence of a former lawyer of Cullen’s. Officer Michael Breen found Cullen at the foot of the porch stairway at this address and, with service revolver drawn, ordered: “Frankie, give it up.” Cullen then tinned his back to Breen and placed his hands on the side of the house. As Breen approached, Cullen began to back away from the house. Believing him about to flee, Breen grabbed Cullen from behind, simultaneously restraining him and searching for the handgun. Both men fell to the ground. Officer Paris, arriving at the scene, handcuffed Cullen’s wrists behind his back. Subsequently, Cullen “began to thrash about from left to right,” which gyrations
Cullen did not testify at trial, nor did he substantially contest these facts. Instead, through two psychiatrists, he offered evidence of his lack of criminal responsibility.
Both psychiatrists concluded, on the basis of slightly different diagnoses, that Cullen lacked criminal responsibility under the McHoul test, suggesting that the appropriate diagnostic labels for Cullen’s condition might be “schizophrenia, paranoid type” and “erotomania,” or a “paranoid delusional system.” Confronted at trial with an EEG report from Bridgewater
Obviously, the trial judge rejected Cullen’s insanity defense. Thus the question we must decide is whether, on the basis of all the evidence, viewed in a light most favorable to the prosecution, a rational trier of fact could have found Cullen to be criminally responsible beyond a reasonable doubt.
Cullen does not suggest that the Commonwealth’s evidence of criminal responsibility was insufficient at the close of the Commonwealth’s case in chief. Until Cullen raised the insanity defense, the prosecution was entitled to rely on the “presumption of sanity,” that is, the rule that, unless a criminal defendant asserts the insanity defense, the Commonwealth is not obliged affirmatively to prove sanity beyond a reasonable doubt as an element of its case. Commonwealth v. Kostka, 370 Mass. 516 (1976). Cullen argues instead that the Commonwealth’s evidence deteriorated between the close of the Commonwealth’s case and the close of all the evidence, and that therefore a required finding of not guilty by reason of insanity should have been entered at the close of all the evidence. Commonwealth v. Kelley, 370 Mass. 147, 150 & n.1 (1976). He argues that following the expert psychiatric testimony that he was insane under McHoul standards the Commonwealth’s case lacked sufficient evidence to satisfy its now increased burden of proving
The trier of fact is not, of course, obliged to regard even unanimous expert opinion as conclusive on the issue to which it is addressed. Commonwealth v. Lunde, 390 Mass. at 47, and cases cited. Here, for example, the trial judge could have disbelieved the expert testimony or accorded it less weight either because the psychiatrists’ diagnoses were not in complete agreement or because the judge believed the experts’ interviews with Cullen to have been too brief or too remote in time from the shooting.
Cullen attempts to distinguish the sufficiency of the sanity evidence in this case from the sanity evidence held sufficient in cases such as Lunde, and Werner, supra. He argues that evidence offered by the Commonwealth in Lunde showed Lunde’s capacity to discriminate between victims, his calm and rational demeanor, and selection of a particular attorney following an incident in which he shot his brother-in-law more than a dozen times. Cullen points out that, in Werner, the Commonwealth offered evidence that after an unprovoked, fatal stabbing of a teenage girl in a Springfield bus terminal, Werner hid both his weapon and himself, exhibited a calm demeanor when captured, and made two detailed and coherent drafts of a confession in which he admitted to planning such a murder. In this case, Cullen suggests, no such demeanor or other evidence of sanity exists. We disagree.
The trial judge was entitled to draw inferences of sanity from evidence of Cullen’s behavior at the time of the shooting.
Cullen’s admission to one of the experts that for six or more hours before the shooting he had been drinking with a friend could support an inference that voluntary consumption of alcohol, not insanity, caused his violent behavior. Cullen’s prior steady employment as a crane operator, a position he lost when the work was discontinued, and not because of erratic behavior, also supports an inference of criminal responsibility. Likewise, the facts that Cullen was carrying a gun, hurled a rock at the cruiser, waited for Nolan to come close to him before shooting, and returned from the rear of his house to fire upon Paris, support inferences of preparation and deliberation. Cullen’s assertion that he could have killed Nolan, but refrained from doing so, his dash to his former attorney’s home, and his eventual surrender to Officer Breen,
The potential of a fact to support more than one reasonable inference does not warrant our substituting our judgment for that of the trier of fact, who was in the best position to evaluate the evidence he heard first hand.
Judgments affirmed.
Cullen’s conversations with the experts may be admitted insofar as they provide insight into his mental condition. Blaisdell v. Commonwealth, 372 Mass. 753, 766 (1977).
Cullen had previously been arrested several times for lewd behavior, including indecent exposure. He was on probation for armed robbery at the time of the shootings. His belief that the police were watching him may have a rational basis.
At the close of all the evidence defense counsel asked the trial judge to “find the defendant not guilty under the guidelines of Commonwealth v. McHoul” because the Commonwealth did not offer any evidence to rebut the “presumption” that Cullen lacked criminal responsibility at the time the act was committed. We accept this request as a motion for a required finding of not guilty under Mass.R.Crim.P. 25, as amended, 389 Mass. 1107 (1983) [added 25(c)]. In any case there is no doubt as to the basis on which the case was tried. See Commonwealth v. Lunde, 390 Mass. 42, 47 n.7 (1983).
Further, Cullen had no prior history of psychiatric treatment except one referral to a residential treatment program, possibly for psychiatric reasons, some twenty-five years earlier. There was little evidence to corroborate the “facts” Cullen provided concerning his police paranoia upon which the expert opinions were based.
The trial judge asked one psychiatrist, “Then why does [Cullen] endup just before he is arrested at his lawyer’s house putting himself in a passive position with his hands up against the wall if he thinks he hasn’t done anything wrong?”
Dissenting Opinion
(dissenting). If the prosecution’s burden in this Commonwealth to establish criminal responsibility in the face of an insanity defense is to have any meaning, it was not met in this case. “[T]he 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
What are the facts of the case? Without provocation (except as may have been supplied by his own delusions), the defendant Cullen on February 5, 1983, attacked with a rock and then shot and wounded two Milton police officers. His defense is lack of criminal responsibility as defined in Commonwealth v. McHoul, 352 Mass. 544, 547 (1967), i.e., that “as a result of mental disease or defect he lack[ed] substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.”
Four Milton police officers described Cullen’s assault. While on patrol, Officer Paul Nolan was startled by a “loud bang” at the rear of his cruiser. Nolan stopped to investigate and discovered the defendant Cullen standing in the driveway of the house in which Cullen lived. Cullen made no reply when Nolan asked “what was going on.” When Nolan approached to within about twelve feet of Cullen, the latter suddenly and unexpectedly drew a Beretta automatic pistol and fired three shots, two of which wounded the police officer. The defendant then disappeared behind his house, but reappeared to shoot at Officer Paris, who had come to help Nolan. One shot wounded Paris in the shoulder, another hit Nolan’s radio. Paris returned the fire and Cullen fled. Where he fled is of some significance to the Commonwealth’s case; he fled a few houses up the street to the house of a lawyer he had previously employed.
A psychiatrist, Dr. Annaliese Alma Pontius, basing her testimony on an interview of the defendant, described the defendant as suffering from schizophrenia, paranoid type. So far as the cognitive prong of the McHoul test was concerned, Dr. Pontius gave it as her opinion that, on that February morning, the defendant lacked the capacity to appreciate the criminality of his conduct.
Dr. Pontius testified that Cullen thought he had been under twenty-four hour police surveillance every day for seven years; that wherever he went and whatever he did, the police would follow. Cullen would “test” this belief by leaving his house at
On the night of the shooting, Cullen heard a car coming and threw a rock at it because he “couldn’t take it any longer after seven years of constant surveillance.” He knew the police “were getting to” him because he had been stricken with recent attacks of “pins and needles” caused by the police “mind games.” He feared being killed by the police. These fears Dr. Pontius described as “incorrigibly delusional beliefs.”
The defense also introduced a report by Dr. Martin Kelly, who, at the request of the Commonwealth, had conducted a psychiatric evaluation of Cullen. Based on an “[e]xtended psychiatric interview” on July 15, 1983, a review of Bridgewater records and a review of police reports, Dr. Kelly was of opinion that Cullen suffered “a paranoid delusional system in which ... the Milton police were out to get him.” Because it “is probable [that] at the time of the shooting he believed that the police were going to shoot him,” Dr. Kelly concluded, along the volitional prong of the McHoul test, that Cullen “had a mental disease which resulted in the lack of substantial capacity to conform his conduct to the requirements of the law.” Dr. Kelly’s written report disclosed that Cullen had a history of “criminal and psychiatric difficulties,” extending back to age fifteen when he spent a year in a residential treatment program.
In Werner, the attack was similarly unprovoked and bizarre. Similarly, two psychiatrists testified to the defendant’s insanity. Relying on Lunde, we held that the jury could have rejected the opinions of the experts and could, on the basis of other circumstantial evidence, have found the defendant criminally responsible. The defendant in Werner (at 689 and 690) left the scene of the crime and hid himself and his knife. After arrest his demeanor at the police station was calm. He manifested comprehension of his rights and furnished the police with written confessions which displayed ability to differentiate relevant
In the instant case the Commonwealth’s evidence is palpably weaker. There was no evidence that Cullen had prepared for the crime. Compare Lunde. There was no economic motive. Compare Commonwealth v. Kostka, 370 Mass. at 518. There was no evidence of revenge and planning. Compare Commonwealth v. Robinson, 14 Mass. App. Ct. 591, 595 (1982), in which the factors of discrimination among victims and calm after arrest were also present.
The majority detect three indicia of sanity: (1) Cullen did not try to kill Officer Nolan but only meant to “put him out of service.” From this the majority deduce that Cullen could distinguish between maiming and killing and also had the ability to refrain from killing. It is a nice distinction, but I am skeptical about it as a hallmark of sanity. I hesitate to bank on the sanity of a person who shoots only to wound rather than kill. The point is that the Commonwealth offered no evidence to suggest, much less prove beyond a reasonable doubt, that Cullen had substantial capacity to appreciate the obvious wrongfulness of putting police officers “out of service” by shooting at them. Nor did the Commonwealth offer any evidence to prove that Cullen had substantial capacity to refrain from trying to put police officers out of service. Cullen’s acts were perfectly consistent with his delusional scheme that he must protect himself from the police or be killed or beaten by them. It is quaint to descry evidence of sanity from the circumstance that Cullen’s delusional system did not necessarily require him to shoot to kill.
(2) The second indicator of sanity relied on by the majority is that when Officer Breen caught up with Cullen after the latter had fled and shouted, “Frankie, give it up,” Cullen momentarily surrendered and did not shoot Breen. I think this characterization of Cullen’s behavior stops short of the officer’s full account of the arrest. Officer Breen testified that moments
(3) The third circumstance relied upon by the majority as evidence of Cullen’s criminal responsibility is that when Cullen fled he ran to the porch of a nearby house which belonged to someone who was formerly his lawyer and that Cullen appeared to be trying to break into it. I recognize that a fact finder need not accept the contention of the defendant’s expert that his flight to that location was consistent with his delusional scheme that he needed to protect himself from the police and that they would be afraid to kill him in front of his former lawyer. Even if, however, Cullen’s flight to a lawyer’s house could be construed as evidence of his substantial capacity to appreciate the wrongfulness of his actions, it presents no evidence that he was substantially able to conform his conduct to the requirements of the law when he tried to put the officers “out of service.”
Cullen also told Dr. Pontius he had “batted” about 500 “girls” (a term Dr. Pontius understood to be a delusion that 500 women would be willing to go into a close relationship with Cullen). From this behavior, Dr. Pontius concluded that, in addition to the other mental illness, Cullen suffered “erotomania,” “a type of psychosis,” manifested by a delusion of grandeur that all women fall in love with him.
The McHoul test is phrased in the disjunctive, i.e., a person is not criminally responsible if he lacks substantial capacity as to either the cognitive or volitional component of the test. To establish that a person is criminally responsible, it is necessary to prove cognitive and volitional capacity.