Commonwealth v. O'BRIENCommonwealth v. O'BRIEN
- Reporters:
- , ,
- Before:
- Wilkins
On November 13, 1974, the defendant, a member of the bar of the Commonwealth, fatally shot his wife at the office of his attorney, Mr. Ralph Champa, in Somerville. The shooting brought to an abrupt conclusion a heated discussion concerning a separation agreement and a divorce. At trial, the defendant did not deny that he shot his wife, but he asserted that he was not criminally responsible for his act. The twenty-day trial concluded with a jury verdict that the defendant was guilty of murder in the first degree.
The defendant raises a variety of issues on appeal. We shall consider first the defendant’s contentions concerning various evidentiary rulings. Next, we shall discuss the defendant’s claims of prosecutorial misconduct in the Commonwealth’s closing argument. Finally, we shall
Evidentiary Issues
There is no validity to the defendant’s argument that the testimony of Mr. Champa, recounting the conversation between the defendant and his wife immediately prior to the shooting, should have been excluded as a private conversation between husband and wife. See
The defendant objected to the introduction of testimony by Mr. Champa that, several minutes after the shooting, the defendant asked him, “Will you be my lawyer?” That evidence was relevant to the defendant’s state of mind. The defendant argues, however, that it was inadmissible as a privileged communication between client and attorney. The attorney-client privilege may extend to preliminary communications looking toward representation even if representation is never undertaken. 8 J. Wigmore, Evidence §§ 2292, 2304 (McNaughton rev. 1961). On the other hand, the privilege runs contrary to the interest in full disclosure of relevant information and, therefore, should be narrowly construed. See Foster v. Hall, 12 Pick. 89, 97-98 (1831); Fisher v. United States, 425 U.S. 391, 403 (1976); Prichard v. United States, 181 F.2d 326, 328 (6th Cir.), aff‘d per curiam, 339 U.S. 974 (1950); United States v. United Shoe Mach. Corp, 89 F. Supp. 357, 358 (D. Mass. 1950); Wigmore, supra, § 2291, at 554. See generally McCormick, Evidence, § 87, at 176 (2d ed. 1972). There is no presumption of confidentiality; it must be determined in the circumstances. Wigmore, supra, § 2311, at 600.
There are, no doubt, situations in which a person’s belief that he needs legal representation could constitute a confidential communication protected by the attorney-client privilege. If the seeking of legal representation might be construed as evidence of consciousness of guilt, the mere fact of requesting legal representation might be protected. In this case, however, the fact that the defendant needed legal representation was obvious from the circumstances and hardly a confidential matter. The defendant was going to need immediate representation; his
The defendant’s voluntary statement to a police officer made shortly after the shooting was properly admitted. As the officer approached him, the defendant said, “No problem, no problem. I’m sorry. I know I’m under arrest.” The defendant was in custody, but there was no custodial interrogation requiring Miranda warnings. As an unsolicited comment, the statement was admissible. See Commonwealth v. Goulet, 374 Mass. 404, 417 (1978); Commonwealth v. Glavin, 354 Mass. 69, 72-73 (1968).
On two occasions, the prosecutor asked improper, leading questions concerning the defendant’s experience in the criminal law. On the fifth day of trial, he asked one of the psychiatrists called by the defendant whether he had taken into account “that the defendant was highly familiar with criminal law.” The judge sustained an objection and promptly gave an instruction that there was no evidence, “at least to this point in the trial,” that the defendant was a criminal lawyer or that he was experienced in criminal law. A mistrial was not required. The judge’s instruction was appropriate and adequate. See Commonwealth v. Eagan, 357 Mass. 585, 589 (1970). On the twelfth day of trial, on redirect examination, the prosecutor asked Mr. Champa if the defendant had told him that he had worked for his then defense counsel. The question immediately followed the sustaining of an objection to another question on what the defendant had told Mr. Champa about where the defendant had worked. The defendant objected to the second question and moved for a mistrial, which was denied. The judge rightly criticized the prosecutor at the side bar but, without objection from the defendant, he concluded that, to avoid emphasizing the subject, no instruction should be given.
As the trial developed, evidence of the defendant’s competence in the criminal law was introduced. On the sixteenth day of trial, an assistant clerk in the criminal division of the Superior Court, Middlesex County, called by the defendant, testified that before November 13, 1974, he had seen the defendant in court once a week and that the defendant was a very competent attorney. On cross-examination, the clerk testified that the defendant was competent in criminal matters. Although the prosecutor was improperly aggressive in his leading questions concerning the defendant’s experience in the criminal law, we see no basis for reversing the conviction on this ground. Any prejudice was insubstantial. See Commonwealth v. Stewart, 375 Mass. 380, 387 (1978).
The Prosecutor’s Closing Argument
The defendant objects to the refusal of the judge to declare a mistrial because, in arguing to the jury, the prosecutor twice referred to Dr. Mezer, one of the defense witnesses, as a “hired gun.” The first time, the prosecutor defined the term by stating, “I submit to you that is just what he was, hired by the defense, paid by the defense.” In the course of the prosecutor’s argument, the defendant raised several objections at the side bar and moved for a mistrial. Among those objections was the prosecutor’s reference to Dr. Mezer as a “hired gun.” The motion for a mistrial was denied. The judge asked at that point for any suggestions for specific instructions to the jury. Defense counsel made no suggestion for a curative instruction on this subject. In his charge, the judge instructed the jury in the usual manner, that statements of counsel were not to be considered as evidence.
We consider here another contention directed to the prosecutor’s closing argument, although it is not the subject of any exception or assignment of error. In the course of that closing argument, the prosecutor speculated about what conversation may have taken place between prior defense counsel and one of the defendant’s psychiatric witnesses. He implied that the witness’s testimony was the product of the urgings of prior defense counsel. The prosecutor properly challenged the strength of the defendant’s claim of lack of criminal responsibility, but his reference to an imaginary conversation between defense counsel and the witness was plainly wrong. See
Commonwealth
v.
McColl, supra
at 324-325. A prosecutor “may argue all reasonable inferences from the evidence in the record” (S.J.C. Rule 3:22A, PF 13[a],
post
927 [1979] [effective March 1, 1979]), but “[i]t is unprofessional conduct for the prosecutor intentionally at trial to refer to or to argue on the basis of facts outside the record”
(id.
at 927, PF 14). It is long past time for prosecutors to prepare their closing arguments carefully in order to avoid the possibility of reversals of convictions because of prosecutorial error. See
Commonwealth
v.
Haas,
373 Mass. 545, 556-558 (1977);
Commonwealth
v.
Earltop,
372 Mass. 199, 204 (1977) (Hennessey, C.J., concurring).
Issues Concerning the Lack of Criminal Responsibility
The defendant argues that he was entitled to a directed verdict of not guilty by reason of insanity. Failing that, he contends that he is entitled to a new trial, either as a matter of right or pursuant to
The defendant urges us, in three instances, to reexamine and then abandon a rule of law which has been applicable in this Commonwealth in cases involving the question of criminal responsibility. (1) The defendant argues that a defendant should be entitled to a directed verdict of not guilty by reason of insanity where there is no evidence to support a finding of criminal responsibility. The issue is not present in this case because, as will be seen, there was evidence from which the jury could have concluded beyond a reasonable doubt that the defendant was criminally responsible for his conduct. In such a case,
We come then to the defendant’s argument that the weight of the evidence and the requirements of justice should prompt this court to grant the defendant a new trial under
We conclude that no new trial should be ordered. The jury fairly could determine for themselves on the evidence that the defendant was criminally responsible at the time of the killing. 2 As will be seen, there was evidence tending to show that the defendant was criminally responsible, and the opinions of the defendant’s expert witnesses were not compelling.
The Commonwealth introduced evidence from a variety of witnesses to demonstrate that the defendant appeared normal and acted rationally about the time of the shooting. There was testimony from one or more police officers who saw the defendant shortly after the shooting
Mr. Champa also described the events just prior to the shooting. There was an argument. The defendant became excited and his face redder as the argument continued. He said to his wife, “You’re not leaving here alive.” Then, he reached in a coat pocket and took out a pistol. He took a clip from another pocket and inserted it in the gun. He pointed the gun at his wife and said, “You’re dead, Lorraine.” She said, “Oh, Bobby,” and made a motion with her right hand, which was empty. The defendant then fired and kept pulling the trigger even after the gun was empty, saying, “You’re dead, Lorraine.”
There was evidence on behalf of the defendant which tended to show a change of personality in the weeks prior to the shooting. He was said to have been concerned about real and imaginary infidelities of his wife. His behavior was said to have become erratic in certain respects. Although there was medical testimony that the defendant had a problem with his throat caused by emotional stress, there was no evidence of a history of mental illness.
The second of the defendant’s psychiatric witnesses, Dr. Morse, first saw the defendant in September, 1975, and treated him for fourteen months. He concluded that the defendant was suffering from extreme paranoia, a personality disorder, a form of disease. He concluded that the defendant was unable, on November 13,1974, to conform his conduct to the requirements of law. He was not asked, in the manner indicated in
Commonwealth
v.
McHoul,
352 Mass. 544, 547 (1967), whether the defendant’s inability was the result of his extreme paranoia. On cross-examination, Dr. Morse agreed that earlier he had diagnosed the defendant as having “an organic brain syndrome”; that in the course of fourteen months’ treatment he was unable to form an opinion whether the defendant was a schizophrenic; and that paranoia (his diagnosis) is not schizophrenia (Dr. Mezer’s diagnosis). On redirect examination, Dr. Morse testified that paranoid schizophrenia is “very separate from a paranoid personality.” Also on redirect examination, Dr. Morse, who saw the defendant far more often than did Dr. Mezer, testified that to determine whether the defendant was a schizophrenic, “I would have to see in great detail his thought processes,” and that the defendant told him very little of
The defendant’s third expert witness was Dr. Weiss, the psychiatrist who was appointed by the court to examine the defendant. He saw the defendant three times, in December, 1974, and in January, 1975. He concluded that, on November 13, 1974, the defendant was suffering from a “depressive state — severe,” and, as a result, lacked substantial capacity to appreciate the wrongfulness of his conduct, and could not conform his conduct to the requirements of the law. On cross-examination, Dr. Weiss testified that he did not believe that the defendant was schizophrenic (Dr. Mezer’s diagnosis) or suffering from organic brain syndrome (one of Dr. Morse’s diagnoses); that he did not know whether the defendant had delusions on November 13, 1974; that he had not used the word “depression” in his report to the court; and that the first time he used the word was in his testimony in court.
The case involves a defendant who had no prior history of mental illness. The jury could have rejected each of the opinions of the psychiatric witnesses. Each opinion was based in part on facts which the defendant furnished to the expert and which were not corroborated by the expert or otherwise supported in the evidence. Each expert diagnosed a different mental illness, and in the course of some of the psychiatric testimony doubt was cast on the opinions of the other experts. This case presents substantially different circumstances from those cases involving an “insanity defense” where this court, or certain Justices of this court, have felt that justice required a new trial at which the Commonwealth would be expected to introduce expert psychiatric evidence.
Judgment affirmed.
Notes
The defendant has advanced several contentions that require little or no comment. Some arguments are wholly without merit. For example, there was no evidence warranting a charge to the jury on manslaughter. In other instances, the defendant has not preserved any appellate rights, either because of the absence of an objection and exception or because of a failure to assign the point as an error on appeal. Other objections relate to evidentiary matters within the discretion of the judge or to situations where any error was cured by the judge’s instructions to the jury or rendered nonprejudicial by the introduction of other evidence. We see no need to discuss each of these arguments in the course of this opinion. We have considered them, however, in performing our duty under
We note that the dissenting Justices in the Kostka case, who would have granted a new trial, relied in part on an inference that the Commonwealth either “was unsuccessful in a search for a medical expert who would support the Commonwealth’s position, or else the Commonwealth made no attempt to obtain such expert assistance.” Commonwealth v. Kostka, 370 Mass. 516, 540 (1976) (Hennessey, C.J., dissenting in part). In this case, the Commonwealth had an expert witness who would have testified on its behalf but for the fact that his interview with the defendant was conducted in circumstances which required the exclusion of his testimony.
The dissenting Justice in the Kostka case also relied on the extensive evidence of the defendant’s long-standing mental illness, which preceded the alleged crime, an element not present in this case. Id. at 539. See also Commonwealth v. Walker, 370 Mass. 548, 584 (Hennessey, C.J., dissenting in part), cert. denied, 429 U.S. 943 (1976).