14 Mass. App. Ct. 343 | Mass. App. Ct. | 1982
After a trial by jury, the defendant was convicted of carrying a shotgun, of confining a person for the purpose of stealing from a building, of kidnapping, of two
We summarize the evidence. In the early evening of September 17, 1979, the defendant and two other men entered a Somerville pharmacy armed with shotguns. The three men held the pharmacist, one of his employees and a number of customers at gunpoint while they robbed the store, taking money and narcotics. During the theft, the pharmacist secretly activated an electronic alarm device which was connected with the Somerville police station. By the time the robbers were ready to leave, the store was surrounded by police. One of the robbers escaped on foot and was never apprehended. The defendant, Mark Schulze, and his partner, Jay Queeney, remained in the store with the others, whom they held hostage.
The police conducted telephone negotiations with the defendant regarding his demands for escape and release of the hostages. Sometime that evening, Queeney declared that his wife was dying of cancer and that he wanted to die too. Queeney then ingested rat poison and other potent substances supplied at his request by the pharmacist and passed out. The defendant continued negotiations with the police, during which he demanded drugs from the pharmacist and drank quantities of various codeine cough medicines. The defendant gradually became groggy from the drugs. Eventually, the defendant became so weakened that the pharmacist was able to overpower and disarm him, after which the police entered, handcuffed the defendant, and transported
At trial, the defendant relied upon the defense of insanity.
The defendant also sought to introduce testimony from Dr. Chin, a general practitioner who had seen the defendant as a patient on two occasions prior to the crime, the more recent examination being just four days before the crime. After objection by the prosecutor, the trial judge excluded the doctor’s testimony on the grounds that the witness was not a psychiatrist and did not have “qualifications to express an opinion as to this defendant’s mental condition for criminal responsibility.” In an offer of proof, the defense counsel stated that Dr. Chin would testify that he gave the defendant a prescription for Valium.
The Commonwealth presented two expert witnesses to rebut the defendant’s evidence of insanity. Dr. Rorenstein, a psychiatrist, testified that he had examined the defendant approximately one month after the crime. His opinion was that, on the date of the crime, the defendant had the capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. Additionally, Dr. Kelley, a psychiatrist, testified that he had examined
The issues raised on appeal are: (1) whether the trial judge improperly excluded the testimony of Dr. Chin; (2) whether the defendant was deprived of his Sixth Amendment right to effective assistance of counsel when the defense counsel (a) allegedly failed to make a precise offer of proof as to the contents of Dr. Chin’s proffered testimony, and (b) allegedly failed to question Dr. Rogoff on an alternative theory, mentioned in his written report, which suggested that the defendant was not criminally responsible because his use of drugs activated a preexisting mental disease; and (3) whether the defendant’s right to a fair trial was violated when the trial judge allegedly berated the defense counsel in front of the jury during that counsel’s cross-examination of a prosecution witness.
1. The exclusion of Dr. Chin’s testimony. While most other jurisdictions permit a lay witness to state his opinion as to a person’s mental condition,
We cannot conclude that the exclusion of Dr. Chin’s testimony by the trial judge was an abuse of discretion amounting to error of law. It is clear from the record that Dr. Chin was called to testify about the defendant’s mental condition at the time of his medical examination four days prior to the crime. Thus, it was required that Dr. Chin be qualified as an expert in the field of mental illness, see Commonwealth v. Boyd, 367 Mass, at 182, before such testimony would be admitted. However, the testimony merely indicated that Dr. Chin was a certified physician who had maintained a general practice in Boston for approximately thirty years; there was no evidence to suggest (nor did the offer of proof indicate) that Dr. Chin had any expertise or special skill in the field of psychiatry or mental illness. Accordingly, it was within the sound discretion of the trial judge to exclude such opinion testimony.
2. The alleged ineffective assistance of counsel. After the trial judge excluded the testimony of Dr. Chin, counsel for the defendant made an offer of proof that Dr. Chin would have testified only that he gave the defendant a prescription for Valium. On appeal from the denial of his motion for new trial, the defendant, by new counsel, argues that Dr. Chin was in fact prepared to testify that he had diagnosed the defendant as suffering from “depression with anxiety and manic tendencies.” The defendant contends that his trial lawyer’s failure to make a precise offer of proof as to the exact content of the doctor’s proffered testimony was a lapse which deprived him of his Sixth Amendment right to the effective assistance of counsel at a critical point in the trial. Even if we were to conclude (and we do not) that this alleged lapse by the defendant’s counsel could be
The defendant also argues that his trial lawyer’s failure to question Dr. Rogoff, an expert psychiatric witness, about an alternative theory of insanity on which the defendant might rely likewise constituted ineffective assistance of counsel. Dr. Rogoff had testified that at the time of the crime the defendant was suffering from a toxic psychosis unrelated to any preexisting mental condition which negated his criminal responsibility. The defendant now makes reference to Commonwealth v. Shelley, 381 Mass. 340, 349-350 (1980),
3. Comments made by the judge in the presence of the jury. During defense counsel’s cross-examination of a prosecution witness, the judge sustained the prosecutor’s objection to a question and added the comment, in front of the jury, that defense counsel “kn[e]w perfectly well” that the question was “improper.” After the defense counsel made a formal objection to the judge’s comments, the judge responded by saying, “Very good, right. I repeat it before the jury.” The defendant now argues that “when the judge re
In sum, we conclude that the trial judge did not abuse his discretion in denying the defendant’s motion for a new trial and that there was no reversible error at the trial.
Order denying motion for new trial affirmed.
Judgments affirmed.
The defendant was sentenced to concurrent terms of not less than seventeen years or more than twenty years in the Massachusetts Correctional Institution at Walpole on the two counts of masked armed robbery, and to concurrent terms of three to five years for the unlawful carrying of a shotgun and seventeen to twenty years for confining a person for the purpose of stealing from a building. The indictments for assault by means of a dangerous weapon and kidnapping were placed on file with the defendant’s consent.
Prior to trial, a hearing was held at which the judge determined that the defendant was mentally competent to stand trial. That determination is not an issue of this appeal.
The issue relating to the alleged ineffective assistance of counsel is considered on appeal from the denial of the defendant’s motion for a new trial. We treat the other issues as raised on appeal from the judgments on the convictions.
See, e.g., Evalt v. United States, 359 F.2d 534, 547 (9th Cir. 1966); Mason v. United States, 402 F.2d 732, 738-739 (8th Cir. 1968), cert, denied, 394 U.S. 950 (1969); United States v. Milne, 487 F.2d 1232, 1234-1236 (5th Cir. 1973); Hill v. State, 249 Ark. 42, 43, 49-50 (1970); Rupert v. People, 163 Colo. 219, 222 (1967); Mize v. State, 240 Ga. 197, 199 (1977); State v. Randol, 212 Kan. 461, 467-468 (1973); People v. Hannum, 362 Mich. 660, 662-665 (1961); State v. Risden, 56 N.J. 27, 40 (1970); State v. Mayhand, 298 N.C. 418, 424-425 (1979); State v. Lapham, 135 Vt. 393, 401-402 (1977). See also Hughes, Evidence § 331, at 432-433 (1961); Liacos, Massachusetts Evidence 102 (5th ed. 1981); 2 Wigmore, Evidence § 568 (3d ed. 1940). Cf. Annot., 40 A.L.R.2d 15 (1955).
This rule is subject to two long-standing exceptions in Massachusetts when the issues involve the execution of a will by a person whose mental capacity is brought into question. According to these exceptions, the attesting witnesses to a will and the testator’s attending or family physician may testify as to their opinions of the testator’s sanity at the time of the execution of the will. See Williams v. Spencer, 150 Mass. 346 (1890); Commonwealth v. Spencer, 212 Mass, at 447; Old Colony Trust Co. v. DiCola, 233 Mass, at 124; Greene v. Cronin, 314 Mass. 336, 343, 344 (1943); Duchesneau v. Jaskoviak, 360 Mass. 730, 734 (1972).
Because we hold that the exclusion of the testimony by the trial judge was justified on the ground that Dr. Chin was not qualified to render an expert opinion, we need not address the other arguments raised by the defendant concerning the admissibility of such testimony.
In Commonwealth v. Shelley, decided after the trial in the instant case, the court noted that evidence that the use of alcohol had activated a latent medical disease might warrant a finding of not guilty. 381 Mass, at 350.
Although Dr. Rogoff had concluded in his report that the “toxic psychosis” he believed the defendant was suffering from at the time of the crime
“[I]t is . . . not clear whether it was a toxic psychosis alone that caused [the defendant’s] behavior. There is evidence in the limited record I was able to see that, although usually docile and passive, certain drugs consistently trigger atypical, aggressive, and uncontrolled responses in him. If this is the case, then the drug ingestion may have elicited an acute mental state — an illness or disease — which is apart from the addiction itself, and would satisfy the McHoul test . . . .”
During cross-examination at the voir dire, Dr. Rogoff stated that “there may yet be an additional factor which is called an ideosynchratic [sic] response to a drug” (emphasis added). Except for these statements concerning what might have been the case, there is nothing else in the record which suggests that the defendant should be found not criminally responsible on the ground that his use of heroin activated a latent medical disease.