445 Mass. 536 | Mass. | 2005
At issue in this case is whether a criminal defendant may be required to submit to an examination by an expert of the Commonwealth’s choosing to evaluate his competency to stand trial. After a court-appointed expert concluded that Vuthy Seng (defendant) was not competent to stand trial, a judge in the Superior Court allowed the Commonwealth’s motion that the defendant submit to a second competency examination to be conducted by an expert of its choosing, “subject,” she ruled, “to the procedures set forth in
1. Factual background. In 1997, the defendant was convicted
After remand, defense counsel moved for an evaluation of the defendant’s competency to stand trial. On the same date, the Commonwealth moved, pursuant to G. L. c. 123, § 15 (a), for a competency evaluation by a psychiatrist of the Commonwealth’s choosing. The judge allowed the defendant’s motion, ordering that he be evaluated at Bridgewater State Hospital, and deferred action on the Commonwealth’s motion. See G. L. c. 123, § 15 (b).
A designated forensic psychologist of Bridgewater State Hospital, Dr. David W. Holtzen, filed his evaluation report with the court, concluding that the defendant was not competent to stand trial.
2. Discussion. It has long been established that a defendant who, through expert testimony, raises a defense of lack of
a. Statutory authority. General Laws c. 123, § 15 (a), provides:
“Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists. Whenever practicable, examinations shall be conducted at the court house or place of detention where the person is being held. When an examination is ordered, the court shall instruct the examining physician or psychologist in the law for determining mental competence to stand trial and criminal responsibility.” (Emphasis added.)
Although G. L. c. 123, § 15 (d), provides that “[a] finding of incompetency shall require a preponderance of the evidence” (emphasis added), this court has held that the burden is on the Commonwealth to establish by a preponderance of the evidence that a defendant is competent. Commonwealth v. Crowley, 393 Mass. 393, 400 (1984). For this reason, and because in her view, the defendant’s concerns based on the Fifth Amendment to the United States Constitution were resolved by “the strict requirements” of rule 14 (b) (2) (B), the judge allowed the Commonwealth’s motion to have the defendant examined by an expert of its own choosing. A fair inference of her order is that the judge allowed the motion to enable the Commonwealth to present evidence tending to show the defendant’s competency at the hearing. In other words, the Commonwealth’s competency examination will not be conducted in order to determine whether a hearing is warranted, but to gather evidence.
The judge acted within her statutory authority.
As to the identity of the experts, the statute says only that they must be “qualified physicians” or “qualified psychologists.” See G. L. c. 123, § 1 (defining these terms).
Further, the Commonwealth must affirmatively establish the defendant’s competency to stand trial, Commonwealth v. Crowley, supra at 400,
The Legislature’s granting of more than one examination on the issue of competency is similar to statutes in other jurisdictions. See, e.g., 18 U.S.C. § 4241 (2000) (incorporating by reference 18 U.S.C. § 4247[b], granting psychiatric or psychological examination by more than one expert of defendant for competency to stand trial); Cal. Penal Code § 1369(a) (Deering 1992) (permitting court appointment of “any other expert the court may deem appropriate,” in addition to psychiatrist or licensed psychologist, to examine defendant for competency). It also comports with the practical reality that “psychiatry is a profession where experts often disagree,” and a judge would benefit, in making difficult legal decisions, from the “opportunity to hear from more than one expert on the issue of the defendant’s competency.” United States v. Weston, supra at 15. See Commonwealth v. Lamb, 372 Mass. 17, 24 (1977), quoting Commonwealth v. Smith, 357 Mass. 168, 178 (1970) (“Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion . . . by an expert on either side of [an] issue as conclusive”).
The defendant counters that we should follow those courts in other jurisdictions that have held that, absent specific statutory authority, a judge cannot compel a defendant to be examined
As we recognized in Blaisdell v. Commonwealth, 372 Mass. 753, 756 (1977), one purpose of the statute is “to prevent putting to trial an individual who ... is not competent at the time of trial.” See Commonwealth v. Crowley, 393 Mass. 393, 398 (1984), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975) (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial”). On the other hand, the public has a strong interest in ensuring that a claim of incompetency to proceed to trial is carefully scrutinized. See W.R. LaFave, Criminal Law § 1.2(e), at 18 (2d ed. 2003) (“The broad aim of the criminal law is, of course, to prevent harm to society .... This it accomplishes by punishing those who have done harm ... to others”). By permitting a judge considerable flexibility to accommodate both interests, G. L. c. 123, § 15 (a), ensures the integrity of both aspects of our system of criminal justice. Commonwealth v. Poissant, 443 Mass. 558 (2005), on which the defendant relies, is inapposite. That case concerned commitment as a sexually dangerous person under G. L. c. 123A. Our holding was predicated on the specific provisions of that detailed statutory scheme. Among other things, G. L. c. 123A, § 13 (a),
b. Self-incrimination. The defendant contends that a competency examination by a Commonwealth expert would violate his rights against self-incrimination under the United States and Massachusetts Constitutions. He does not explain, however, how a competency examination, focusing on his current mental state, would require him to make statements tending to show his guilt of the crime. See, e.g., Commonwealth v. Russin, 420 Mass. 309, 317 (1995), quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (“The standard for determining competency to stand trial is ‘whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”). An examination to determine competency has a “limited, neutral purpose.” Estelle v. Smith, 451 U.S. 454, 465 (1981). It differs significantly from an examination intended to assess responsibility at the time of the crime, see, e.g., Blaisdell v. Commonwealth, supra at 759-760, or from one to assess sexual dangerousness, see Commonwealth v. Poissant, supra at 564. A competency examination is not directed to the ultimate issue to be decided — whether the defendant is guilty of the crime, or whether the defendant is a sexually dangerous person. A competency examination does not bear on the defendant’s guilt, but on his or her current ability to understand the proceedings and participate in the defense. These are collateral to, and “cannot directly result in[,] the functional equivalent of a criminal adjudication of guilt.” Baqleh v. Superior Court, supra at 495. See Commonwealth v. Serino, 436 Mass. 408,414 (2002) (setting forth standard for determining whether defendant is competent to stand trial); United States v. Collins, 491 F.2d
There is of course always some possibility that a defendant would make incriminating statements during the course of a competency examination. The judge recognized this possibility and imposed on the Commonwealth compliance with the “strict requirements” of rule 14 (b) (2) (B). By its terms rule 14 (b) (2) pertains to “the defense of lack of criminal responsibility because of mental disease or defect at the time of the alleged crime,” and not to competency to stand trial. See note 1, supra. We see no reason why a judge cannot resort to that rule’s provisions in the context of a competency determination to protect a defendant’s legitimate constitutionally based concerns.
Rule 14 (b) (2) (B) (ii) provides that any “statement, confession, or admission, or other evidence of or obtained from the defendant during the [competency] examination” may not be disclosed to the “prosecutor or anyone acting on his behalf unless so ordered by the judge.” The report of any expert examining the defendant for competency may not be disclosed to the Commonwealth unless “the judge determines that the [competency expert’s] report contains no matter, information, or evidence which is based upon statements of the defendant as to his mental condition at the time of or his criminal responsibility for the alleged crime or which is otherwise within the scope of the privilege against self-incrimination.” Mass. R. Crim. P.
The judge’s order made no reference to G. L. c. 233, § 23B, but we agree with the Commonwealth that to the extent the defendant’s privilege against self-incrimination is implicated, he will also be protected by the immunity provisions of that statute.
Under G. L. c. 233, § 23B:
“In the trial of an indictment or complaint for any crime, no statement made by a defendant therein subjected to psychiatric examination pursuant to [G. L. c. 123, §§ 15 or 16,] for the purposes of such examination or treatment shall be admissible in evidence against him on any issue other than that of his mental condition, nor shall it be admissible in evidence against him on that issue if such statement constitutes a confession of guilt of the crime charged.”
This excludes from evidence “inculpatory statements constituting admissions short of a full acknowledgment of guilt,” as well as “evidence discovered as ‘fruits’ of [the defendant’s] compelled statements,” and prevents “the possible use of his involuntary statements made in the course of the examination for purpose of impeachment” (citations omitted). Blaisdell v. Commonwealth, supra at 763.
In the circumstances of a competency examination, G. L. c. 233, § 23B, together with the judge-imposed strictures of rule 14 (b) (2) (B), protects the defendant’s privilege against self-incrimination. See Blaisdell v. Commonwealth, supra at 769. Cf. Baqleh v. Superior Court, supra at 498 (“the Fifth Amendment is inapplicable at a [competency] hearing because the judicially declared immunity . . . provides the defendant all the protection against self-incrimination he or she needs”).
c. Right to counsel. The defendant argues that the judge’s order violates his right to counsel under art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution.
Also, as we discussed earlier, if the defendant is found competent, any statements he made during the competency examination would not be admissible at trial, G. L. c. 233, § 23B. If the defendant is found not competent to stand trial, any “waiver” of his rights would have no legal effect. See, e.g., Commonwealth v. Vailes, 360 Mass. 522, 524 (1971) (conviction or sentencing of person incompetent to stand trial violates due process). See Blaisdell v. Commonwealth, supra at 763; Mass. R. Crim. P. 14 (b) (2) (B); G. L. c. 233, § 23B. “Because [the defendant] is adequately protected, there is no Sixth Amendment right.” Baqleh v. Superior Court, supra at 505.
3. Conclusion. We have determined that there was neither abuse of discretion nor any other error of law in ordering the
So ordered.
Rule 14 (b) (2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 874 (1979), concerns the “defense of lack of criminal responsibility because of mental disease or defect.” Subsection (B), entitled “Examination,” provides in pertinent part:
“The examiner shall file with the court a written psychiatric report which shall contain his findings, including specific statements of the basis thereof, as to the mental condition of the defendant at the time the alleged offense was committed.
“The report shall be sealed and shall not be made available to the parties unless (a) the judge determines that the report contains no matter, information, or evidence which is based upon statements of the defendant as to his mental condition at the time of or his criminal responsibility for the alleged crime or which is otherwise within the scope of the privilege against self-incrimination ... or (c) during trial the defendant raises the defense of lack of criminal responsibility and the judge is satisfied that (1) the defendant intends to testify in his own behalf or (2) the defendant intends to offer expert testimony based in whole or in part upon statements of the defendant as to his mental condition at the time of or as to his criminal responsibility for the alleged crime.
“If a psychiatric report contains both privileged and nonprivileged matter, the judge may, if feasible, at such time as he deems appropriate, make available to the parties the nonprivileged portions.”
Mass. R. Crim. P. 14 (b) (2) (B) (iii).
General Laws c. 123, § 15 (b), states, in pertinent part: “After the examination described in paragraph (a), the court may order that the person be hospitalized at a facility ... for a period not to exceed twenty days for observation and further examination, if the court has reason to believe that such observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial. . .
Dr. Holtzen’s report, dated December 2, 2004, stated that the defendant “is not competent to stand trial, is mentally ill, and is in need of psychiatric treatment in a suitable facility.”
Under G. L. c. 123, § 15 (c), “[a]t the conclusion of the examination or the observation period, the examining physician or psychologist shall forthwith give to the court written signed reports of their findings, including clinical findings bearing on the issue of competence to stand trial. . . .”
A finding that the defendant is not competent to stand trial does not necessarily result in a dismissal of the charges. See G. L. c. 123, § 15 (d) (“If the defendant is found incompetent to stand trial, trial of the case shall be stayed until such time as the defendant becomes competent to stand trial, unless the case is dismissed”).
We consider in this case only whether the Commonwealth is entitled to have the defendant examined for competence by one expert of its choosing where a court-appointed expert has concluded that the defendant is not competent.
General Laws c. 123, § 1, defines the following:
“ ‘Qualified physician’, a physician who is licensed pursuant to [G. L. c. 112, § 2,] who is designated by and who meets qualifications required by the regulations of the department [of mental health]; provided that different qualifications may be established for different purposes of this chapter. A qualified physician need not be an employee of the department or of any facility of the department.”
“ ‘Qualified psychologist’, a psychologist who is licensed pursuant to [G. L. c. 112, §§ 118-129,] who is designated by and who meets qualifications required by the regulations of the department, provided that different qualifications may be established for different purposes of this chapter. A qualified psychologist need not be an employee of the department or of any facility of the department.”
Commonwealth v. Crowley, 393 Mass. 393 (1984), was decided under an earlier version of G. L. c. 123, § 15, which also provided that “[a] finding of incompetency shall require a preponderance of the evidence.” Id. at 401. The
In Massachusetts, the same statute, G. L. c. 123, § 15, sets forth the procedures for examinations to determine both competency and criminal responsibility. In contrast, Kentucky has separate statutes for competency and mental illness or insanity determinations. See Bishop v. Caudill, 118 S.W.3d 159, 161 (Ky. 2003).
The defendant also relies on State v. Zapetis, 629 So. 2d 861 (Fla. Dist. Ct. App. 1993). In that case, the court denied review of an order denying the State’s motion for a neuropsychological examination because the State had not met the standard for certiorari review of pretrial orders in criminal proceedings. See id. at 861.
The explanatory note to Model Penal Code § 4.06(1) states in part: “If a party contests the report [resulting from the psychiatric examination of the defendant on the issue of competency by an expert appointed by the court under Model Penal Code § 4.05], there is a hearing at which that party may summon and cross-examine psychiatrists who joined in the report, and offer independent evidence.” Model Penal Code and Commentaries § 4.06 explanatory note, at 241 (1985).
The Commonwealth correctly does not claim that the defendant waived his privilege against self-incrimination because defense counsel raised the question of the defendant’s competency. It asserts, however, that if and when the defendant seeks “to introduce expert testimony based on any examination
The Commonwealth points out that the defendant did not raise this issue in the Superior Court. He did, however, raise it in his G. L. c. 211, § 3, petition.