| Mass. | Jul 7, 1978
The defendant was convicted in 1970 of murder in the second degree and armed robbery committed in 1969, and the convictions were affirmed. Commonwealth v. O’Brien, 360 Mass. 42" court="Mass." date_filed="1971-06-30" href="https://app.midpage.ai/document/commonwealth-v-obrien-2239486?utm_source=webapp" opinion_id="2239486">360 Mass. 42 (1971). In 1976 he filed a motion for a new trial, claiming that in 1970 he was not competent to stand trial. The trial judge denied the motion without a hearing, we allowed the defendant’s application for direct appellate review, and we now affirm.
We summarize the allegations made by the defendant in his motion for a new trial as they are supported by exhibits and the transcript of the trial proceedings. The defendant
The next day, May 7, the judge read into the record a medical report of a doctor at the Boston City Hospital. He then had the defendant examined by a psychiatrist. The psychiatrist reported that the defendant was in pain and had a remarkably high pulse rate, and was reacting not only to pain and swelling “but to the dilemma that he faces in the trial.” At first the judge said, “In view of the opinion of the doctor, I’ve got to declare a mistrial in respect of DiMinico.” After discussion with the psychiatrist and counsel, however, he deferred decision until the following morning, noting that he had a pretrial report that the defendant was competent to stand trial. Counsel for the defendant said he would withdraw any objection if he could get an orthopedic opinion and the psychiatrist said the defendant was all right. Later that day the defendant was examined by an orthopedist at Massachusetts General Hospital.
On May 8 the judge read into the record the orthopedist’s report, and asked the psychiatrist to examine the defendant. Later the judge announced that the psychiatrist had reported the defendant as “in much better condition” and had found the defendant “to be fairly angry.” The defendant “refused to answer any questions as to why he caused himself to be injured.” The judge ordered that the trial proceed. At the lunch recess counsel told the judge that the defendant was falling asleep during the testimony. The judge said that the psychiatrist could see the defendant over lunchtime, and need not report back if the defendant was “conscious” of “what’s going on.” During the afternoon counsel told the
The Commonwealth calls our attention to events the following day. On May 9 defense counsel said, “Your Honor, today this boy is thinking clearly. Whatever they gave him last night gave him a good night’s sleep. He looks much better.” Thereafter the defendant was sworn as a witness. He admitted his own participation in the robbery, and emphatically testified that one of the codefendants was not with him, but he refused to answer questions about other persons who might have been involved. See Commonwealth v. O’Brien, 360 Mass. 42" court="Mass." date_filed="1971-06-30" href="https://app.midpage.ai/document/commonwealth-v-obrien-2239486?utm_source=webapp" opinion_id="2239486">360 Mass. 42, 47-48 (1971). The answers he gave seem to be responsive and coherent.
In disposing of the defendant’s previous appeal, we reviewed the evidence in accordance with G. L. c. 278, § 33E. We said, “The trial appears to have been conducted with unusual skill and with scrupulous regard for every proper interest of each defendant.” Commonwealth v. O’Brien, supra at 50. There is no claim that the defendant was incompetent after trial, and no reason is given for the delay in filing a motion for a new trial until May, 1976, six years after the trial. The judge in denying the motion said, “This motion contains nothing which could not have been presented and argued on appeal by the experienced and competent counsel who effectively represented the Defendant. The evidence was reviewed under G. L. c. 278, § 33E. Com. v. O’Brien, 360 Mass. 42" court="Mass." date_filed="1971-06-30" href="https://app.midpage.ai/document/commonwealth-v-obrien-2239486?utm_source=webapp" opinion_id="2239486">360 Mass. 42, 50 [1971].”
We have recently reviewed the law governing competency to stand trial. See Commonwealth v. Hill, ante 50, 51-62 (1978), and cases cited. Where there was “a substantial question of possible doubt” about the defendant’s competency to stand trial, it was error to proceed to trial
As in the Valles case, there is here no evidence “of the defendant’s violent or extremely irrational conduct in the court room,” nor of his “long and emphatic history of mental incompetence.” Id. at 525, and cases cited. In Commonwealth v. Hill, supra, the defendant had a “long history of treatment in mental hospitals,” supra at 57. Compare Drope v. Missouri, 420 U.S. 162" court="SCOTUS" date_filed="1975-02-19" href="https://app.midpage.ai/document/drope-v-missouri-109191?utm_source=webapp" opinion_id="109191">420 U.S. 162, 181 (1975) (evidence of mental illness, in light of suicide attempt during trial, required suspension of trial pending evaluation), with Commonwealth v. Kostka, 370 Mass. 516" court="Mass." date_filed="1976-06-23" href="https://app.midpage.ai/document/commonwealth-v-kostka-2005823?utm_source=webapp" opinion_id="2005823">370 Mass. 516, 522-523 (1976) (finding of competence after hearing, despite evidence of mental illness including ingestion of light bulb, id. at 520 n.3). The defendant was in physical distress because of his broken ankle, and he was under tension because of loyalty to a codefendant, but otherwise no more is shown than “the display of a few mannerisms which are consistent with no more than nervousness, diffidence, boredom or dissembling.” Commonwealth v. Vailes, 360 Mass. 522, 525 (1971).
We do not place our decision on the ground of waiver. See Commonwealth v. Hill, supra at 53-54. Even if there had been doubt as to competency on May 8,1970, however, we see nothing to indicate that there was such doubt on May 9 or thereafter. In view of the defendant’s testimony on
Order affirmed.