431 Mass. 506 | Mass. | 2000
Lead Opinion
After a jury trial, the defendant, George F. McLaughlin, was found guilty of involuntary manslaughter and arson of a dwelling house and not guilty by reason of insanity of two charges of murder in the first degree. The only issue at trial was whether the defendant was criminally responsible at the time of his acts. The trial judge committed McLaughlin to Bridgewater State Hospital (Bridgewater) and stayed the execution of sentence on his convictions until after his release from Bridgewater. Having granted McLaughlin’s application for direct appellate review, we affirm his convictions. We conclude, however, that the judge erred in staying execution of sentence until after McLaughlin’s release from commitment.
McLaughlin was not convicted of murder in the first degree. We therefore do not review his appeal pursuant to G. L. c. 278, § 33E. See Commonwealth v. Cullen, 395 Mass. 225, 228 (1985). A verdict of not guilty by reason of insanity is not a “conviction” within the meaning of § 33E. Cf. Commonwealth v. Doane, 428 Mass. 631, 631-632 (1999). McLaughlin does not ask us for § 33E review in any event.
1. McLaughlin does not dispute that, shortly after killing Albert Myers and David Wallace at the nursing home where he and they worked, he set a fire in his room that resulted in the death of Cedric Clarke, who resided in the room above McLaughlin’s. McLaughlin’s sole defense at trial was that he was insane at the time he committed these acts. Once the issue of insanity was raised, the Commonwealth was required to prove beyond a reasonable doubt that McLaughlin was sane (criminally
“[T]he rule is well established in criminal cases that mere inconsistency in verdicts . . . will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.” Commonwealth v. Sherry, 386 Mass. 682, 698 (1982), quoting Commonwealth v. Scott, 355 Mass. 471, 475 (1969). Accordingly, “a defendant may be found not guilty by reason of insanity or impaired mental condition as to one charge, and guilty as to other charges, even where all arise out of the same criminal episode.” People v. Bielecki, 964 P.2d 598, 605 (Colo. Ct. App. 1998). See Commonwealth v. Chandler, 29 Mass. App. Ct. 571, 580-581 (1990).
We are not persuaded that the verdicts in this case were inconsistent. McLaughlin told police that he undertook to kill Myers and Wallace and one or more residents of his apartment building because he believed they were harming him with high-frequency beams. He carried out the plan against his first two victims, but decided after he got home that he would not kill anyone else. In his own words, he “just couldn’t go through with it”; he had “just had enough.” Instead, he elected to bum down his apartment. Before leaving the building, he told a fellow tenant about the fire. McLaughlin thought that the building’s fire alarm would alert all the tenants to the fire. In light of this evidence, the jury could have found that McLaughlin’s mental condition abated by the time he reached his home so that he
McLaughlin attempts to derail this reasoning by positing that the jury could have reached the two guilty verdicts only by relying on the “presumption of sanity.”
The closing argument was nonetheless improper. Near the end of the argument, the prosecutor ridiculed the trial’s emphasis on the state of mind of the defendant. Shortly afterward, the judge sustained an objection to the prosecutor’s utterances. The prosecutor, however, continued in the same vein. He exhorted the jury to consider the rights of the victims and to do justice for them. He then told the jury that “in the end the truth is that this case is all about whether or not he’s guilty. It’s not whether he’s insane or not. The issue for you is whether he’s guilty or not guilty. That’s the point.” (Emphasis added.) He concluded that “[t]he point is, is that he’s guilty because you say so. And I’m asking you to say so and hold him accountable and hold him responsible” (emphasis added).
The prosecutor erred egregiously in making these statements. He should not have asked the jury to consider the rights of the victims, see Commonwealth v. Barros, 425 Mass. 572, 581 (1997), or to do justice for them, see Commonwealth v. Drumgold, 423 Mass. 230, 253 (1996). Nor he should not have exhorted the jury to ignore their responsibility under the law, as he did when he told the jury to declare McLaughlin “guilty because you say so” and to ignore the question of his mental condition. Contrary to the prosecutor’s suggestion, the case was “all about” McLaughlin’s mental condition. The suggestion therefore could have had the effect only of encouraging the jury to find the defendant guilty even if the evidence did not prove criminal responsibility. See Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., All Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998). The prosecutor should have considered his obligation to argue the Commonwealth’s case “in a way that states the evidence clearly and fairly and inspires
We evaluate the effect of prosecutors’ inflammatory remarks to the jury according to “whether the improper statements . . . ‘constituted prejudicial error’ ” (citation omitted). Commonwealth v. Santiago, supra at 500.
The cumulative effect of all the errors in the context of the entire argument . . . and the case as a whole is considered in making this determination. . . . The following factors are considered: whether defense counsel seasonably objected to the arguments at trial; . . . whether the judge’s instructions mitigated the error . . . ; whether the errors in the arguments went to the heart of the issues at trial or concerned collateral matters . . . ; whether the jury would be able to sort out the excessive claims made by the prosecutor . . . ; and whether the Commonwealth’s case was so overwhelming that the errors did not prejudice the defendant. . . . (Citations omitted.)
Id.
Consideration of the second and fourth Santiago factors, however, allows us to conclude that the remarks were not prejudicial. First, the judge properly instructed the jurors to set aside feelings of sympathy and of bias or prejudice. See Commonwealth v. Gordon, 422 Mass. 816, 831 (1996). Although she failed to instruct the jury that a closing argument is not evidence, the effects of this omission were mitigated when the judge told the jurors that “your collective memory of the facts . . . will govern.” More importantly, the judge properly instructed the jurors at length about the question of criminal responsibility. These instructions countered the prosecutor’s attempt to distract the jury’s attention from this crucial issue. Second, the verdicts
3. McLaughlin argues that the judge improperly instructed the jury on the elements of arson of a dwelling house, G. L. c. 266, § 1. The judge correctly told the jury that the Commonwealth must prove that the defendant wilfully and maliciously set fire to his apartment. See Commonwealth v. Cooper, 264 Mass. 378, 380 (1928). She then said that “malice used in this context of arson is not the same as malice used in a murder charge. It’s used in the sense of improper, selfish motive. But there need not be any specific [sz'c] to kill or any specific intent to do grievous bodily harm, or indeed, any specific intent to do an act that will result in death.” The judge also said that “[t]he use of both willful and malicious in the statute does not indicate that malice has a meaning different from its ordinary meaning. Malice ... in the crime of arson need not be overtly expressed. It may be inferred, jurors, from the willful act of burning without legal justification.” Because no objection was made to this instruction at trial, we review the instruction for whether any errors created a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Ely, 388 Mass. 69, 74 (1983).
The trial judge in this case deviated in a number of respects from the instruction on the malice element of arson approved in Commonwealth v. Niziolek, 380 Mass. 513 (1980): “malice ‘characterizes all acts done with an evil disposition, a wrong and unlawful motive or purpose; the wilful doing of an injurious act without lawful excuse.’ ” Id. at 527, quoting Commonwealth v. York, 9 Met. 93, 104 (1845).
The malice instruction was erroneous. It nonetheless created no substantial risk of a miscarriage of justice. The defendant concedes on appeal that he acted wilfully (i.e., intentionally, see Commonwealth v. Luna, 418 Mass. 749, 753 [1994], quoting Commonwealth v. Welansky, 316 Mass. 383, 397 [1944]) in setting the fire and that his act was unlawful. Because wilfulness and the commission of an unlawful act are two of the three components of malice in arson, the only component that the defendant has not conceded is the lack of justification or excuse for his actions.
4. The judge sentenced McLaughlin to from nineteen to twenty years in prison on the involuntary manslaughter conviction and to from eight to ten years on the arson conviction, the sentences to run consecutively. She stayed execution of the sentences until the date of his release from his civil commitment. McLaughlin argues that the stay exceeded the judge’s authority and violated his constitutional rights. The Commonwealth argues that the judge had the discretion to defer the sentences until McLaughlin’s release from commitment. Without reaching any constitutional questions, we hold that the stay was unwarranted.
As the Commonwealth concedes, McLaughlin is entitled to credit toward his sentences for the two years he spent confined in jail and in Bridgewater State Hospital between late 1994,
If McLaughlin is eventually cured of mental illness, then whether his sentences have been stayed will determine the date of his eventual release. Persons who are committed for mental illness while serving their sentences and are cured before the end of the term of their sentences, however, would assuredly be entitled to leave prison by the end of such term. It seems odd at minimum that McLaughlin but not these others should face the possibility of additional decades in prison after his release from Bridgewater. A statutory scheme that permitted outcomes of this sort would raise difficult questions of due process and equal protection. See Foucha v. Louisiana, 504 U.S. 71 (1992); Jones v. United States, 463 U.S. 354, 369 & n.18 (1983) (persons found not guilty by reason of insanity on criminal charges may not be punished for acts with which they were charged); Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976); White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930).
“Although fairness is the concept underlying due process, our decisions in this area have not rested on constitutional requirements. Where no statute controls, we have been establishing guiding principles, case by case.” Chalifoux v. Commissioner of Correction, 375 Mass. 424, 428 (1978). See Lewis v. Commonwealth, 329 Mass. 445, 448 (1952). We do not favor “overly technical” readings of relevant statutes; rather, we read them “against the backdrop of fair treatment of the prisoner.” Commonwealth v. Grant, 366 Mass. 272, 275 (1974). See Com
The parties point us to no statute or rule, nor can we find any, authorizing or forbidding judges to stay the execution of a defendant’s sentence until his release from commitment for mental illness. Stay of execution of sentence is allowed in certain other circumstances, but these are not relevant to this case.
Rule 31 (a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 902 (1979), offers us some guidance. That provision “confers discretionary power to stay the execution of sentence pending appeal.” Commonwealth v. Allen, 378 Mass. 489, 496 (1979).
In Commonwealth v. Hayes, 170 Mass. 16 (1897), the court held that St. 1895, c. 469, an early version of G. L. c. 279, § 4, granted trial judges only limited power to stay execution of sentence. The defendant had moved for stay of execution of sentence following an unsuccessful appeal. The ground for the motion was the defendant’s poor health. Writing for the court, then Justice Holmes said that the trial judge lacked the authority to grant a stay in such circumstances. First, the defendant’s motion did not fall within what were then the terms of the statute. See id. at 16-17. Second, even if the motion could be regarded as a motion for a stay to be granted on authority other than that accorded by the statute, “[t]he term in which the sentence was pronounced was past, and the power of the court to modify it was at an end.” Id. at 17. In 1897, criminal terms were abolished by statute, rendering irrelevant this basis for the holding in Hayes. See Commonwealth v. O’Brien, 175 Mass. 37, 39 (1899). See also District Attorney for the N. Dist. v. Superior Court, 342 Mass. 119, 122 (1961). Left untouched, however, was the
When the Legislature codified what is now G. L. c. 279, § 4, within the Revised Laws of 1902, no substantive changes were made to the statute. Compare St. 1895, c. 469, with R.L. 220, § 3 (1902). Subsequent amendments to what is now G. L. c. 279, § 4, including those attendant on the promulgation of Mass. R. Crim. P. 31, have largely left unchanged the authority of judges to grant stays.
It might be argued that the stay in this case was valid because it was an exercise of a trial judge’s inherent power to stay execution of sentence after it is pronounced. Other jurisdictions are in disagreement as to the reach of this power. See King v. Commonwealth, 246 Mass. 57, 58-59 (1923), citing, inter alia, Ex parte U.S., petitioner, 242 U.S. 27, 48 n.1 (1916). A few jurisdictions appear to have approved of the practice of delaying execution of a sentence of incarceration until after the defendant’s release from commitment for mental illness. See, e.g., Talley v. Beavers, 141 Ga. 110, 112 (1913). Cf. State v. Brown, 12 Ohio St. 3d 147, 151 (1984). The English common law, however, appears to have allowed stays of execution of sentence only in a few classes of cases, all of them cases in which the stay was a true reprieve, rather than a means of extending the duration of the defendant’s confinement. See Ex parte U.S., petitioner, supra at 42-45 (quoting Hale and Blackstone). This evidence counsels against an expansive reading of judicial powers that would allow stays of execution of sentence for punitive purposes. See Crocker v. Justices of the Superior Court, 208 Mass. 162, 166 (1911), quoting Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807).
Our own cases are largely silent on the question of the inherent power of trial judges to stay execution of sentence. Our decision in Commonwealth v. Hayes, supra, to the extent that it speaks at all of the inherent power of courts to issue stays, indicates that this .power is limited. Other than this, very little has been said. See Commonwealth v. Glines, 40 Mass. App. Ct. 95, 97 n.2 (1996) (“Ordinarily, a judge would employ a stay
We have found only one reported case in Massachusetts in which the trial judge stayed execution of sentence during a defendant’s commitment for mental illness. In Commonwealth v. Foley, 17 Mass. App. Ct. 238 (1983), overruled on other grounds, Commonwealth v. Amirault, 415 Mass. 112, 117 n.9 (1993), the defendant was committed for six months to Bridge-water State Hospital after being convicted of rape of a child and assault. The trial judge stayed execution of the defendant’s sentences until the end of the commitment to Bridgewater. The judge indicated that any time spent at Bridgewater after the expiration of the six months would be counted against the defendant’s sentences. See id. at 240-241, 245. The Appeals Court rejected the defendant’s claim that he should be given credit for the initial six months spent in Bridgewater. The court said that “the period of commitment, when added to the length of sentence, did not exceed the maximum sentence which the judge could legally have imposed.” Id. at 245. It could be inferred, though it is arguable, that the Appeals Court thought that the trial judge included the six months at Bridgewater in his calculation of the proper sentence for the defendant. We think in any case that a trial judge should not use his or her power to stay execution of sentence in order to lengthen the defendant’s confinement beyond the period announced by the judge in imposing sentence. To the extent that Foley says otherwise, it is overruled.
We need not delineate in detail the contours of trial judges’
The judgments of conviction are affirmed. The stay of execution of sentence is vacated. The defendant’s first sentence shall be deemed to have commenced on January 24, 1997, the date when the trial judge initially imposed sentence.
So ordered.
The jury could have inferred sanity “from the facts underlying the crime and evidence of [the defendant’s] actions before and after the crime.” Commonwealth v. Cullen, 395 Mass. 225, 229 (1985). See Commonwealth v. Kappler, 416 Mass. 574, 579 (1993). In particular, the jury could have considered McLaughlin’s cooperation with the police as evidence of sanity. See Commonwealth v. Keita, 429 Mass. 843, 848-849 (1999); Commonwealth v. Johnson, 422 Mass. 420, 426-427 (1996). The jury could also have rejected in part or in full the uncontroverted testimony of the medical experts who testified at trial that McLaughlin lacked criminal responsibility throughout the evening of the crimes. See Commonwealth v. Kappler, supra; Commonwealth v. Goulet, 402 Mass. 299, 307 (1988); Commonwealth v. Chandler, 29 Mass. App. Ct. 571, 581 (1990).
The judge told the jury that they could consider “the fact. . . that a great majority of people are sane and the resulting probability that any particular man was sane. It is for you, the jury, to draw this inference if you choose.” The judge correctly refrained from referring to the “inference” as a presumption within the jury’s hearing. See Commonwealth v. Matthews, 406 Mass. 380, 392 (1990).
“While Commonwealth v. Santiago[, 425 Mass. 491 (1997), S.C., ATI Mass. 298 and 428 Mass. 39, cert, denied, 525 U.S. 1003 (1998),] was decided after the trial in this case, the factors to be considered were all set forth in cases before this trial.” Commonwealth v. Rock, 429 Mass. 609, 616 n.9 (1999).
The judge may well have been relying on jury instructions endorsed by the Superior Court. See 1 Massachusetts Superior Court Criminal Practice Jury Instructions § 2.32.1 (Arson [I]) (Massachusetts Continuing Legal Educ.
Excuse is a broader category than justification. As the trial judge indicated when she instructed the jury on murder in the first degree, an act can be legally excused even if it is not legally justified. Cf. Commonwealth v. Puleio, 394 Mass. 101, 110-111 (1985) (Nolan, J., dissenting). The judge told the jury that a killing done in war would be a justified killing and that a killing done in self-defense would be an excused killing.
That malice in arson comprises only three components is clear from Commonwealth v. Goodwin, 122 Mass. 19, 35 (1877), where the court stated that “[t]he wilful doing of an unlawful act without excuse is ordinarily sufficient to support the allegation that it was done maliciously and with criminal intent.” Accord Commonwealth v. Williams, 110 Mass. 401, 403 (1872).
As the Appeals Court explained in Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 528-529 & n.5 (1988), our description of malice in Commonwealth v. Goodwin, supra, fleshes out the meaning of the malice formulation approved in Commonwealth v. Niziolek, 380 Mass. 513 (1980). See id. at 527, citing Commonwealth v. Goodwin, supra at 35; Commonwealth v. Lamothe, 343 Mass. 417, 420 (1961) (quoting Goodwin formulation); J.R. Nolan & B.R. Henry, Criminal Law § 424, at 320 (2d ed. 1988) (same). The three components of the Goodwin formulation are in substance the same as the
Put otherwise, “an act done with an evil disposition, a wrong and unlawful motive or purpose” is essentially synonymous, at least in arson cases, with “the wilful doing of an injurious act without lawful excuse.”
The category of justification or excuse includes, among other things, accident, mistake, self-defense, and defense of another. See Commonwealth v. Medina, 430 Mass. 800, 804-805 n.5 (2000); Commonwealth v. Mezzanotti, supra at 528.
It might be argued that mental condition can be an “excuse” even when the condition does not rise to the level of insanity. We think such an argument must fail. As the judge told the jury, a defendant’s mental disease or defect short of insanity is relevant to whether the defendant was capable of forming the intent needed to commit a particular crime. Once such an intent has been proved, however, mental disease or defect short of insanity is not an “excuse” for the defendant’s conduct. See Commonwealth v. Meinholz, 420 Mass. 633, 637 (1995) (approving jury charge stating that, if defendant’s specific intent had been proven beyond a reasonable doubt, “the defendant’s mental impairment, if any, does not excuse or justify his actions”).
“If a sentence of imprisonment is imposed upon conviction of a crime, the entry of an appeal shall not stay the execution of the sentence unless the judge imposing it or a judge of the Supreme Judicial Court or the Appeals Court determines in his discretion that execution of said sentence shall be stayed pending the final determination of the appeal.” Mass R. Crim. R 31 (a), 378 Mass. 902 (1979).
The court held in Commonwealth v. O’Brien, 175 Mass. 37, 39-40 (1899), that the power of courts as to sentencing “impliedly includes the power to correct any illegality or error in a sentence, provided it then remains wholly unexecuted.” The court said that Hayes did not conflict with this holding. See Commonwealth v. O’Brien, supra at 39. In Commonwealth v. Lobel, 187 Mass. 288 (1905), the power to correct illegality or error in a sentence was explicitly held to extend to the correction of errors of fact as well as of law. The court said in Lobel that Hayes had been “limited to the precise point decided in it,” but not that it had been overruled or that its reasoning was questionable. Commonwealth v. Lobel, supra at 289.
Certain amendments to R.L. 220, § 3 (1902), now G. L. c. 279, § 4, modified the authority of judges to grant stays when an appeal was pending or when a defendant had been convicted of a crime punishable by death. These modifications are not relevant to this case.
It would appear that the only other provisions of statutes or rules that authorize stay of execution in any circumstances are Mass. R. Crim. R 43 (b), 378 Mass. 919 (1979), and Rules 7 (e) and 9 (c) of the District Court Rules for Probation Violation Proceedings (adopted Dec. 2, 1999, effective Jan. 3, 2000). None of these provisions is relevant to this case.
We held in Commonwealth v. Yameen, 401 Mass. 331, 335 (1987), cert, denied, 486 U.S. 1008 (1988), that trial judges in their discretion may stay execution of a driver’s license revocation pending appeal. We did not say whether this discretionary power was inherent or somehow conferred by statute. We did say that the power was not conferred by Mass. R. Grim. R 31. See id. at 334. Yameen offers no guidance on the question of stays not granted pending an appeal.
The sentencing disposition approved in Commonwealth v. Foley, 17 Mass. App. Ct. 238 (1983), would be impermissible today even apart from our holding as to the scope of trial judges’ power to stay execution of sentence. General Laws c. 123, § 15 (e), as amended through St. 1996, c. 266, provides that a person who is committed to Bridgewater State Hospital after being
Concurrence Opinion
(concurring, with whom Abrams and Lynch, JJ., join). I would hold that in cases to be tried after today, the burden will be on a criminal defendant to prove his insanity by a preponderance of the evidence. I would abandon our practice, which we approved by divided vote in Commonwealth v. Keita, 429 Mass. 843 (1999), of stating simultaneously that the Com
The defendant’s argument as to the alleged inconsistency of the verdicts reflects a misunderstanding of our law of criminal responsibility that some of the language used in our prior cases may have encouraged. We have repeatedly said that the Commonwealth has the burden of proving a defendant’s sanity beyond a reasonable doubt once the issue is raised. We have also said that a jury may rely, in determining whether the Commonwealth has met its burden, on what we have called the “presumption of sanity.” These statements are not easy to reconcile. The juxtaposition of the statements may lead jurors to conclude that the reasonable doubt standard, as applied to potentially insane defendants, means something less than what we have clearly said it means in all other contexts.
We recently quoted, with apparent approval, our statement in Commonwealth v. Clark, 292 Mass. 409, 415 (1935), that “the fact that a great majority of men are sane, and the probability that any particular man is sane, may be deemed by a jury to outweigh, in evidential value, testimony that he is insane.” Commonwealth v. Keita, supra at 847.
This case is but the most recent one in which we have invoked the “presumption” to uphold convictions on appeal despite evidence that could otherwise cause reasonable jurors
The “presumption of sanity,” we have said, is not really a presumption. Nor is it exactly an inference. Rather, the “presumption” “shares, but is not limited to, the characteristics of both presumptions and inferences.” Commonwealth v. Kostka, 370 Mass. 516, 531 (1976).
Our attempts to explain the “presumption” have not been entirely pellucid. We have said that the “presumption” “oper
In Commonwealth v. Keita, a majority of the Justices of this court acknowledged the difficulties in our formulation as to the burden of proof on sanity but declined to abandon it. Writing for the court, Chief Justice Wilkins noted that thirty-eight jurisdictions currently place the burden on the defendant to prove his sanity. See id. at 850.
Chief Justice Wilkins nonetheless concluded that the current formulation should be retained. His reasons were as follows. First, in light of our long-standing tradition of requiring the prosecution to prove sanity beyond a reasonable doubt, “[tjhere is no theoretical justification for maintaining a lower standard for the proof of sanity than for the proof of guilt.” Id. at 853. Second, the Legislature has not taken the opportunity to reject the formulation, despite having had almost one hundred years in which to do so. Id. at 853-854. Third, the preponderance standard would also create potentially contradictory, and confusing, burdens. In a case in which mens rea, as an element of a crime, and criminal responsibility are both at issue, the jury would need to be instructed carefully in order to avoid the hazard of convicting a defendant on less than evidence beyond a reasonable doubt of the mens rea element. See id. at 852-853, citing People v. Kohl, 72 N.Y.2d 191 (1988). Fourth, the current formulation does not result in verdicts of not guilty by reason of insanity for many defendants. See Commonwealth v. Keita, supra at 853-854.
Justice Abrams disagreed with Chief Justice Wilkins’s conclusion. Joined by Justice Lynch, she wrote that the defendant should be required to show the absence of criminal responsibility by a preponderance of the evidence. Such an allocation of the burden of proof, she said, “accords with the life experience of those persons called as jurors.” Id. at 854 (Abrams, J., concurring in part and dissenting in part). Conjoining a reasonable doubt instruction with an instruction on the “presumption of sanity,” she said, “diminishes the concept of the reasonable doubt standard.” Id. at 855.
Having considered the arguments made in Commonwealth v. Keita, I am persuaded, despite Chief Justice Wilkins’s reservations, that the preponderance formulation is to be preferred. I also think that the use of the “presumption of sanity” should be discontinued. I consider his reservations in turn.
First, I think that proof of sanity is distinguishable from proof of guilt because sanity is not an element of an offense. Lack of criminal responsibility has been traditionally considered an affirmative defense to charges of crime. No doubt this is in
As Chief Justice Wilkins acknowledged in Commonwealth v. Keita, supra at 851-852, the Federal Constitution does not forbid placing the burden on the defendant to prove an insanity defense. See Martin v. Ohio, 480 U.S. 228, 236 (1987), citing Leland v. Oregon, 343 U.S. 790 (1952); Jones v. United States, 463 U.S. 354, 368 n.17 (1983); Patterson v. New York, 432 U.S. 197, 201-202 (1977); Commonwealth v. Kappler, supra at 577-578 n.2, 586 n.11; United States v. Pryor, 960 F.2d 1, 3 (1st Cir. 1992); Walker v. Butterworth, 599 F.2d 1074, 1080 (1st Cir. 1979). Cf. Commonwealth v. Kostka, supra at 525-537 (“presumption of sanity,” as used in Massachusetts, does not violate due process).
It was argued in Commonwealth v. Keita, supra, that art. 12 of the Commonwealth’s Declaration of Rights should be construed to put more stringent limits on the allocation of burdens as to sanity than does the Federal Constitution. Because adopting a preponderance formulation would do little if anything to shift the actual burden of proof as to sanity, it is unlikely that this argument would be successful. See Commonwealth v. Kappler, supra at 586 (“presumption of sanity” does not violate Declaration of Rights). Requiring a criminal defendant to prove
At common law, the burden of proving all affirmative defenses — whether of “justification, excuse or alleviation” — “rested on the defendant. . . . This was the rule when the Fifth Amehdment was adopted, and it was the American rule when the Fourteenth Amendment was ratified.” Patterson v. New York, supra at 202. (Citations omitted.) For authorities applying the rule to the insanity defense, see Wharton, Homicide § 665, at 551 (2d ed. 1875); 1 Hale, History of the Pleas of the Crown 33 (1736). Chief Justice Parker, instructing the jury in a murder case tried before him and Justices Jackson and Putnam in 1817, is reported to have stated “[tjhat if the Jury were satisfied, the prisoner was in a state of mental derangement by the visitation of Providence, he was not a moral agent, and could not be guilty” (emphasis added). Trial of William M’Donnough on an Indictment for the Murder of His Wife, Elizabeth M’Donnough, before the Hon. Supreme Judicial Court of the Commonwealth of Massachusetts 65 (Bangs 1818). See id. at 67 (“[Your Counsel] attempted by evidence and argument to shew that at the time the deed was perpetrated, you were visited by Divine Providence with a derangement of mind .... The jury were instructed by the Court, that if this were satisfactorily proved, you were not a free moral agent capable of committing a crime . . .”) (emphasis added). “[T]his was a subject entirely for the Jury to decide.” Id. at 65.
By the middle of the Nineteenth Century, members of this court clearly placed the burden on the defendant to show insanity by a preponderance of the evidence. Indeed, the “presumption of sanity” appears originally to have meant precisely this allocation of the burden of proof. In the murder trial reported in Commonwealth v. Rogers, 7 Met. 500 (1844), Chief Justice Shaw told the jury that the “ordinary presumption” was that “a person is of sound mind, until the contrary appears.” Id. at 504. When asked by the jury whether they must be satisfied beyond a doubt of the defendant’s insanity in order to acquit him, the
In the trial reported in Commonwealth v. Eddy, 1 Gray 583 (1856), the defendant argued that the Commonwealth was required to show sanity beyond a reasonable doubt and that the “presumption of sanity” could not meet the Commonwealth’s burden once conflicting evidence as to sanity had been introduced. See id. at 583. The court held instead that the defendant was required to prove insanity as of the time of his otherwise criminal act “by a preponderance of the whole evidence in the case.” Id. at 584 (charge to jury by Metcalf, J., in trial over which he and Bigelow and Merrick, JJ., presided). Even though the burden to prove sanity was said to be on the Commonwealth, the “presumption of sanity” met this burden and shifted it to the defendant. See id. Cf. Commonwealth v. Heath, 11 Gray 303, 304 (1858) (charge to jury by Thomas, J., in trial over which he and Dewey and Metcalf, JJ., presided) (“The law presumes men and women of the age of the prisoners to be sane, to be responsible agents . . . till the contrary is shown. The presumption of law stands till it is met and overcome by the evidence in the case”); Commonwealth v. McKie, 1 Gray 61, 65 (1854) (“[tjhere may be cases” — “such as insanity, for instance” — “in which the burden of proof is shifted upon the defendant”).
Massachusetts was among a number of jurisdictions in the middle of the Nineteenth Century that required criminal defendants to show insanity by a preponderance of the evidence. See, e.g., United States v. Lawrence, 4 Cranch C.C. 514, 515, 26 F. Cas. 886 (C.C.D.C. 1835) (No. 15,576). See also Wharton, supra at § 666, at 551-553 & 552 n.5. A few jurisdictions, including England, required the defendant to prove his insanity beyond a reasonable doubt. See Leland v. Oregon, 343 U.S. 790, 797 (1952); Wharton, supra at § 666, at 551-552; Regina
Later in the Nineteenth Century, it appears, our nominal allocation of the burden of proof as to sanity began to shift in favor of the defendant. At the same time, the “presumption of sanity” began to play a role that was clearly independent of the court’s articulation of this burden. At the trial of Jesse H. Pomeroy (appeal reported at Commonwealth v. Pomeroy, 117 Mass. 143 [1875]), over which Chief Justice Gray and then Justice Morton presided, the court told counsel that the Commonwealth was required to prove “everything essential” beyond a reasonable doubt, but that this burden, “so far as the matter of sanity is concerned, is ordinarily satisfactorily sustained” by the presumption of sanity. Wharton, Homicide app. VII, at 754 (2d ed. 1875), quoted in Davis v. United States, 160 U.S. 469, 483 (1895). The court went on to say, however, that “when the circumstances are all in, on the one side and on the other; on the one side going to show a want of adequate capacity, on the other side going to show usual intelligence . . . the burden
Commonwealth v. Johnson, 188 Mass. 382, 388 (1905), seems to have been the first appellate decision in which this court stated that the Commonwealth must prove the sanity of the defendant beyond a reasonable doubt. See Commonwealth v. Keita, 429 Mass. 843, 853 (1999). It is not at all clear that the court was aware in Johnson that it was departing from what had been accepted practice in the middle of the Nineteenth Century.
It is likely that either the State or Federal Constitution requires that evidence bearing on the sanity of a defendant be admissible so far as it shows whether he had the mental state, or mens rea, that is an element of the crime with which he is charged. To instruct a jury that evidence of insanity “could not be considered in determining whether there was a reasonable doubt about the State’s case . . . would relieve the State of its burden and plainly run afoul of [In re] Winship’s[, 397 U.S. 358 (1970),] mandate.” Martin v. Ohio, 480 U.S. 228, 233-234 (1987) (placing burden on defendant to prove self-defense by preponderance of the evidence does not violate due process, provided that evidence of self-defense is admissible where relevant to proof of elements of offense charged). See Montana v. Egelhoff, 518 U.S. 37, 63 (1996) (plurality opinion) (O’Connor, J., dissenting, with whom Stevens, Souter, and Breyer, JJ., joined) (“Meaningful adversarial testing of the State’s case requires that the defendant not be prevented from raising an effective defense, which must include the right to present relevant, probative evidence”); Commonwealth v. Matthews, 406 Mass. 380, 392-393 (1990); Commonwealth v. Grey, 399 Mass. 469, 470-471 (1987); United States v. Skodnek, 896 F. Supp. 60, 62 (D. Mass. 1995). But see Montana v. Egelhoff, supra at 42 (Scalia, J., with whom Rehnquist, C.J., and Kennedy and Thomas, JJ., joined) (upholding State statute forbidding use of intoxication evidence to show absence of mens rea) (“the proposition that the Due Process Clause guarantees the right to
Second, the Legislature’s silence on the propriety of the current formulation does not divest us of the power to alter it. Chief Justice Wilkins acknowledged as much in Commonwealth v. Keita, supra at 853-854. See Walker v. Butterworth, supra at 1079 n.6 (as to sanity, “the burden of proof is strictly a judicially created standard in Massachusetts”); Boston Gas Co. v. Department of Pub. Utils., 405 Mass. 115, 119 (1989). Cf. Commonwealth v. Berry, 420 Mass. 95, 112 (1995). Nor as a prudential matter should this silence deter us from announcing a change in the burden of proof on sanity, especially when the preponderance rule more accurately describes our actual practice than did the problematic formulation that we abandon.
Third, a preponderance standard would be simple to explain to jurors even in cases in which mens rea is at issue as well as criminal responsibility. Trial judges would need only to explain that despite the burden on the defendant to show insanity by a preponderance of the evidence, the burden nonetheless remains on the prosecution to prove all elements of an offense, including mens rea, beyond a reasonable doubt. Compare the jury instructions quoted in Leland v. Oregon, 343 U.S. 790, 794-795 & n.8 (1952).
Finally, it is true that adopting a preponderance formulation would be likely to have little effect on the number of verdicts of not guilty by reason of insanity. This is because the “presumption of sanity” has allowed the prosecution to demonstrate a defendant’s sanity without eliminating all significant doubts as to the fact. That is but another way of saying that the prosecution has not been required to prove sanity beyond a reasonable doubt. It follows that the reasonable doubt formulation is inapposite as a description of the true allocation of burdens between the Commonwealth and the defendant as to proof of the defendant’s mental condition. See Commonwealth v. Keita, supra at 847 n.2 (“In practical effect, permitting the presumption to meet the Commonwealth’s burden of proof may place the burden of overcoming that presumption on the defendant”); Commonwealth v. Mutina, 366 Mass. 810, 815 n.2 (1975) (“it may be questionable whether the ‘beyond a reasonable doubt’ standard and the ‘presumption of sanity’ can logically coexist in a case where there has been extensive evidence of insanity with no medical evidence to the contrary”); Walker v. Butterworth, 599 F.2d 1074, 1077 (1st Cir. 1979) (“Instructing the jury to weigh this presumption necessarily lessens the government’s burden of proof. The use of this evidentiary device can be viewed as artificially aiding the government in satisfying its burden of production or as diluting the standard of ‘beyond a reasonable doubt.’ Either way, the standard of proof has been altered by a judicially created mechanism”). Cf. Commonwealth v. Casey, 428 Mass. 867, 869 (1999) (“At oral argument, experienced defense counsel said that he would readily accept the burden of proving, by a preponderance of the evidence, a client’s lack of criminal responsibility, if in turn the judge did not give a presumption of sanity instruction”).
I think that it is more accurate to describe our practice as requiring the defendant to show the jury that a preponderance of the evidence shows that he lacked criminal responsibility. This formulation better reflects the broad discretion that we have historically allowed the jury in determining sanity. “The judge ‘cannot direct the jury how they shall decide.’ ” Commonwealth v. Keita, supra at 847, quoting Commonwealth v.
Such a revised description of the allocation of burdens as to insanity in criminal cases would render unnecessary the concept of a “presumption of sanity” that would favor the Commonwealth. Retaining the “presumption” while placing the nominal burden of proof on the defendant would run the risk of altering the actual allocation of burdens of proof as to insanity without reducing the likelihood of juror confusion. See Eule, The Presumption of Sanity: Bursting the Bubble, 25 UCLA L. Rev. 637, 698 (1978). Cf. Walker v. Butterworth, supra at 1077 & nn.3, 4. Some jurisdictions have both placed the burden on the defendant to show sanity and allowed the use of the “presumption.” See Commonwealth v. Kostka, supra at 529, and authorities cited. A preponderance formulation, however, would effectively give the Commonwealth the benefit of the “presumption of sanity” without any need for trial judges to inform jurors of the fact. See Commonwealth v. Kappler, supra at 602 (Abrams, J., concurring). Cf. Commonwealth v. Keita, supra at 854 (Abrams, J., concurring in part and dissenting in part) (“underlying [the preponderance] approach is the presumption that most people are sane”).
If the preponderance formulation is adopted and the “presumption of sanity” is discarded, the difference between the Keita formulation and the new formulation would be in essence a semantic one. Insofar as the new formulation would aid the clarity and accuracy of jury instructions, it is likely that its use, coupled with the abandonment of the “presumption,” would lead to more accurate and consistent determinations of criminal responsibility by juries. Cf. Commonwealth v. McHoul, supra at 553.
We said in Commonwealth v. Clark, 292 Mass. 409, 415 (1935), that “the form of expression may be criticised on the ground that in troth it is not. . . the presumption of sanity that may be weighed as evidence, but rather the rational probability on which the presumption rests.” We did not quote this statement in Commonwealth v. Keita, 429 Mass. 843 (1999).
as Chief Justice Wilkins noted in Commonwealth v. Keita, supra, we have occasionally reached a different result when exercising our special power to review convictions pursuant to G. L. c. 278, § 33E. In a few such instances, concerns about the weight of the evidence of sanity have prompted us to order a new trial. See id. at 847-848, and cases cited.
We have said that we use the term “presumption” (usually in quotation marks) not because we think it is strictly accurate, but “in order to relate our discussion to other jurisdictions and to various texts.” Commonwealth v. Kostka, 370 Mass. 516, 525 n.5 (1976). Cf. Commonwealth v. Keita, supra at 846. Some jurisdictions use the term quite differently than we have. Among these are jurisdictions that employ the “presumption” only to assign to the defendant the initial burden of producing evidence of insanity. In these jurisdictions, “after a certain quantum of evidence tending to show insanity has been introduced, the presumption loses all effect.” Commonwealth v. Kostka, supra at 528. See 2 McCormick, Evidence § 336, at 409 n.2 (5th ed. 1999); 9 J. Wigmore, Evidence § 2501, at 464 (Chadboum rev. ed. 1981 & 1999 Supp.). In Massachusetts, by contrast, the “presumption of sanity” retains evidential value even after evidence of insanity has been raised by the defendant. See Commonwealth v. Kostka, supra at 528-529; Commonwealth v. Smith, 357 Mass. 168, 179-180 (1970).
Every jurisdiction, it seems, requires the defendant at least to shoulder the initial burden of producing evidence of insanity. “Were it otherwise, the prosecution would be confronted with the intolerable burden of establishing the defendant’s sanity in every criminal case.” 1 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 4.5(e), at 499 (1986).
A few jurisdictions have eliminated the insanity defense altogether. In these jurisdictions, evidence of mental condition remains admissible as relevant to the mental state of the defendant when this is an element of a crime of which he is accused. See Commonwealth v. Keita, supra at 850-851 n.6. See also 2 P.H. Robinson, Criminal Law Defenses § 173(a), at 282-283 & n.5 (1984 & 1999 Supp.).
The statute upheld in Leland v. Oregon, 343 U.S. 790 (1952), required the defendant to prove his insanity beyond a reasonable doubt. In Davis v. United States, 160 U.S. 469 (1895), the Supreme Court had held that in Federal prosecutions the government must prove the defendant’s sanity beyond a reasonable doubt. The Court had nonetheless said that the prosecution could rely on a “presumption” of sanity in meeting its burden. See id. at 486-488. The Court said in Leland that Davis “obviously establishes no constitutional doctrine, but only the rule to be followed in [FJederal courts.” Leland v. Oregon, supra at 797.
The definition of criminal insanity articulated by Chief Justice Shaw in Commonwealth v. Rogers, 1 Met. 500 (1844), was not modified in substance in Massachusetts until Commonwealth v. McHoul, 352 Mass. 544 (1967), when we adopted the American Law Institute’s definition of insanity. We regarded our adoption of the ALI definition “as an evolutionary restatement of our rule rather than [as] a substantively new rule.” Id. at 547. See id. at 553. Whatever differences there may be between the two definitions do not render irrelevant what this court said about the burden of proof as to insanity in cases prior to the McHoul decision.
The English rule may have been mitigated in practice by a counter-presumption that shifted the burden of proof to the Crown once the defendant had made an adequate showing of past insanity. See, e.g., W.M. Best, Presumptions of Law and Fact 186-187 (1844). See also 1 G.D. Collinson, Idiots, Lunatics, and Other Persons Non Compotes Mentis 52, 55 (1812). For relatively recent decisions that adopt or apply a version of this rule, see generally Annot., Presumption of Continuing Insanity as Applied to Accused in Criminal Case, 27 A.L.R.2d 121 (1953). See Milam v. State, 255 Ga. 560, 563 (1986); Mills v. State, 256 A.2d 752, 755 (Del. 1969). We have found no mention of such a counter-presumption in our criminal cases. It may be that our old requirement that insanity be shown as of the time of the defendant’s otherwise criminal act operated in such a way as to reject implicitly any such presumption. See, e.g., Commonwealth v. Rogers, 7 Met. 500, 501, 502, 503 (1844) (charge to jury by Shaw, C.J.); Trial of William M’Donnough on an Indictment for the Murder of His Wife, Elizabeth M’Donnough, before the Hon. Supreme Judicial Court of the Commonwealth of Massachusetts 65 (Bangs 1818) (charge to jury by Parker, C.J.). See also 1 Hale, Pleas of the Crown 34 (1736) (“if a man be a lunatick, and hath his lucida intervalla, and this be sufficiently proved, yet the law presumes the acts or offenses of such a person to be committed in those intervals, wherein he hath the use of reason, unless by circumstances or evidences it appears they were committed in the time of his distemper; and this also holds in civils, as well as in criminals”); T. Cooper, Insanity and Nuisance, Tracts Medical Jurisprudence at 381 (Cooper ed. 1819); L. Shelford, Lunatics, Idiots, and Persons of Unsound Mind 50, 63, 458-667 (1833).
In Commonwealth v. Johnson, 188 Mass. 382, 388 (1905), the court cited four authorities for the proposition that the Commonwealth was required to prove sanity beyond a reasonable doubt: Commonwealth v. Heath, 11 Gray 303 (1858); Davis v. United States, 160 U.S. 469 (1895); Chief Justice Gray’s jury charge in the Pomeroy trial; and Justice C. Allen’s jury charge in the Goodwin trial. Commonwealth v. Heath is silent on the allocation of the burden of proof as to sanity. Davis merely announces the Federal rule on this subject. The two remaining authorities, as I have indicated, employ the reasonable doubt standard, albeit in conjunction with the “presumption of sanity.”
In all respects conceivably relevant to the allocation of the burden of proof as to sanity in criminal proceedings, the text of Part 1, art. 15, of the New Hampshire Constitution is almost identical to that of art. 12 of the Massachusetts Constitution. Prior to a 1966 amendment that added a fourth sentence to art. 15, the text of art. 15 was nearly the same as that of art. 12. A 1984 amendment to art. 15 made some stylistic changes and added a proviso to the third sentence. The proviso and the extra sentence protect rights that have nothing to do with the burden of proof as to sanity in criminal proceedings.
I note in passing that I would not anticipate any significant change in our doctrine as to when the evidence is sufficient to warrant a jury instruction on the issue of criminal responsibility. See, e.g., Commonwealth v. Seabrooks, 425 Mass. 507, 515 (1997). If there is some evidence of a lack of criminal responsibility and the defendant requests an instruction on criminal responsibility, the instruction must be given.
This proposed change in the articulation of the burden of proof as to insanity would require modest revision of the Model Jury Instructions on Homicide (1999). ¿1 keeping with current law, the instructions put the burden on the Commonwealth to prove beyond a reasonable doubt that the defendant was criminally responsible at the time he committed the acts of which he is accused. See generally id. at 50-54 & 74-76 nn.59-76. The instructions also allude to the “presumption of sanity.” See id. at 51 & 75 n.64.
The proposed change would not extend to any other affirmative defense concerning which we have said that the Commonwealth has the burden of proving beyond a reasonable doubt the absence of the defense once it is properly raised. Cf. Commonwealth v. Keita, supra at 852 n.9 (declining to reconsider conclusion in Commonwealth v. Rodriguez, 370 Mass. 684, 687-688 [1976], that Federal due process principles require “that, when the issue of self-defense is properly before the trier of fact, the Commonwealth must, as matter of due process, prove beyond a reasonable doubt that the defendant did not act in self-defense”).