Commonwealth v. Mills , 400 Mass. 626 ( 1987 )

Wilkins, J.

The defendant has raised one issue on his appeal from his convictions of armed assault with intent to murder, mayhem, and assault and battery by means of a dangerous weapon. He challenges the judge’s decision, over the defendant’s objections, not to charge the jury on the issue of his criminal responsibility.¹ We conclude that the question is a close one but that the defendant is correct. The evidence did permit a reasonable doubt concerning the defendant’s criminal responsibility.

For the past twenty years, this Commonwealth has followed the rule on criminal responsibility set forth in § 4.01 (1) of the Model Penal Code, at 66 (Proposed Official Draft 1962). Commonwealth v. McHoul, 352 Mass. 544, 547 (1967). That section states that “[a] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” For the first ten years of the McHoul rule, we decided no case presenting the question whether the evidence was sufficient to require a judge to instruct according to that rule. See Commonwealth v. McInerney, 373 Mass. 136, 151 (1977). In the past ten years, however, we have had a number of such cases. In some, we have concluded that, if requested, an instruction on criminal responsibility was required on the evidence, and, in others, that no instruction was required. See Commonwealth v. Monico, 396 Mass. 793, 800-801 (1986) (instruction required; new trial ordered); Commonwealth v. Genius, 387 Mass. 695, 697-698 (1982) (instruction would have been required, if requested), collecting cases on each aspect.

“An insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning the defendant’s criminal responsibility at the time of the [crime].” Commonwealth v. Laliberty, 373 Mass. 238, 246-247 (1977).² Expert testimony is not requiired to raise the issue. See Commonwealth v. Monico, supra at 798; Commonwealth v. Laliberty, supra at 245. “The issue may arise from the facts of the case, through the Commonwealth’s witnesses, through lay testimony, or any combination thereof.” Commonwealth v. Monico, supra. See Commonwealth v. Mattson, 377 Mass. 638, 644 (1979). The facts of the crime may be considered in support of an insanity defense. See Commonwealth v. Laliberty, supra; Commonwealth v. Costa, 360 Mass. 177, 182 (1971) (in addition to expert testimony, “bizarre nature of the killings” also offered as evidence of insanity); Commonwealth v. Francis, 355 Mass. 108, 111 (1969) (“it is for the jury to determine on all the evidence whether what was done was itself evidence of insanity at the time of the act”).

Although we have said that a defendant “might argue that the very facts of the alleged crime create an inference of mental disease or defect” (Blaisdell v. Commonwealth, 372 Mass. 753, 765 [1977]), no case based solely on the facts of the crime has come before us in which we have reversed a conviction for failure to give a McHoul charge. See Commonwealth v. Harris, 387 Mass. 758, 763 (1982) (allegedly bizarre nature of particular crimes “would not, standing alone, have been sufficient evidence of lack of criminal responsibility to raise a jury issue”; defendant claimed ineffective assistance due to counsel’s failure to investigate insanity defense); Osborne v. Commonwealth, 378 Mass. 104, 111 (1979) (“senseless crime alone does not entitle the defendant to a jury instruction on criminal responsibility”; ineffective assistance claimed); Commonwealth v. Mattson, supra (court can find no case “where the inexplicableness of a crime alone raises a jury issue of insanity”).

We recite the evidence on which the defendant relies in arguing that the jury could properly have had a reasonable doubt concerning his criminal responsibility. The defendant and the victim had been living together (with her children) in an apartment in Marlborough prior to the day of the alleged crimes. On March 9, 1985, the day before the defendant stabbed the victim, the two had had a serious disagreement whether they would attend a party. He did not want her to attend because her former “common law” husband might be there. They did not attend the party. The quarrel continued the next morning. The victim’s daughter called the police. The two police officers who responded persuaded the defendant to leave the apartment and arranged for the victim to come to the police station later to obtain a temporary restraining order. Immediately, when the police had left the apartment, the defendant returned and assaulted the victim. The police officers heard the noise, and they too returned. The defendant resisted arrest and ran away. The officers went looking for him and were summoned back to the premises by radio because the defendant had again returned. The defendant violently resisted arrest once again, while crying and calling the victim’s name, but was ultimately handcuffed, after an officer sprayed the chemical Mace on him. He was taken to a cruiser and then to the police station, resisting and screaming all the way. The victim came to the police station and obtained from a judge a restraining order against the defendant which was explained to him. He was released about 9:30 a.m. and immediately attempted to find the victim and communicate with her. Around 2 p.m., the defendant got out of an automobile on Hosmer Street at the same time the victim, one of her daughters, and two other women were walking there. The defendant crossed the street, paying no heed to the traffic, confronted the women, and said he wanted to talk with the victim. She said that she had nothing to say. He asked again. She refused and tried to walk away. He took a knife from his jacket and stabbed her in the back. She fell and he landed on top of her, repeatedly trying to stab her and saying that he was going to kill her and that he was going to go to jail. Others came to the victim’s aid. At one point the knife broke, but the defendant continued to stab at the victim. His body was stiff, and he appeared to be insensitive to pain, even when kicked in the face. The defendant fled the scene and was arrested shortly thereafter. He told an arresting officer to shoot him and that “I want you to kill me.” He again violently resisted arrest and had to be subdued with Mace. Once in a cell at the police station, the defendant remained extremely emotional, agitated, and shaking.

At trial, the defendant testified that he had consumed alcoholic beverages after his release from the police station in the morning. He said that he looked for the victim because he “was a desperate man” and that he discovered where the victim was supposed to be. He testified that, when he confronted the victim on the street and she declined to speak with him, “I just stabbed her.” His mind went blank, he said, and, although he did not remember stabbing her and did not want to stab her, he now knew he had. He did not remember being pulled from the victim, running from the scene, or, upon arrest, asking the police officer to kill him. On cross-examination, the defendant testified that he had a history of alcoholism but not a history of mental illness.

The defendant sought to raise his lack of criminal responsibility as a jury question.³ The judge declined to give such an instruction and ordered defense counsel not to argue the issue to the jury.

This court’s view has consistently been that “[wjhere the appropriateness of an insanity instruction is marginal, the better choice would seem to be to err on the side of giving it, since the Commonwealth has the ultimate burden of proving the defendant sane beyond a reasonable doubt, and the jury are ‘the sole judge[s] of this factual issue.’ Commonwealth v. Smith, 357 Mass. 168, 180 (1970).” Commonwealth v. Mattson, 377 Mass. 638, 644 (1979). See Commonwealth v. Monico, supra at 802. This is a close case which on its facts falls between Commonwealth v. Mattson, supra at 643-644, in which a criminal responsibility charge was not required,⁴ and Commonwealth v. Laliberty, 373 Mass. 238, 246 (1977), in which such a charge would have been required, if requested.⁵

Based on that evidence, we conclude that the jury would have been warranted in concluding that there was a reasonable doubt concerning the defendant’s criminal responsibility. That evidence, which includes the defendant’s testimony as to his state of mind at the time of the stabbings, raised the possibility that he lacked substantial capacity to “conform his conduct to the requirements of law,” one of the alternatives in the second aspect of the McHoul test.

The remaining question is whether there was evidence, warranting a reasonable doubt, that the defendant’s inability to conform his conduct to the requirements of law was caused by a mental disease or defect. Although there is no direct evidence that the defendant had or has had any mental problem, a reasonable doubt that the defendant might be suffering from a mental disease or defect would have been warranted on the evidence. His conduct on that day could well simply have been based on anger, jealousy, and frustration which ultimately he took out on the focus of these emotions. But the defendant’s preassault conduct (irrationally resisting arrest, violating the terms of the restraining order, and crossing a street toward the victim paying no attention to the traffic), his asserted state of mind, his observed conduct, his physical condition at the time of the stabbings, and his arguably suicidal attitude following the assault made a jury question of his criminal responsibility.

The jury decide whether there was a reasonable doubt as to the defendant’s criminal responsibility unless the issue is not presented on the evidence. Viewing the evidence most favorably to the defendant, a jury question was presented. It was not a strong case for the defendant. We doubt the jury would have accepted it. It is not our function, however, to foreclose a jury from considering the issue.

Judgments reversed.

Verdicts set aside.

1 The defendant expresses the argument in terms of his rights under the State and Federal Constitutions, specifically the restriction on his right to present a defense, citing art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the Constitution of the United States. We have not previously discussed the “insanity defense” in such constitutional terms, and see no need to do so in this case.

2 The dissent espouses a radically new standard for testing whether an instruction on lack of criminal responsibility should be given. It asserts that such an instruction need be given only if the evidence would warrant “a finding by a fair preponderance of the evidence that the defendant was insane at the relevant time.” Post at 632. That is not the test for deciding whether the evidence might create a reasonable doubt.

There will be cases, contrary to the dissent’s observation, in which a defendant will not be entitled to an instruction on lack of criminal responsibility.

3 The Commonwealth was on notice before trial that the defendant intended to rely upon the defense of lack of criminal responsibility. The pretrial conference report, filed five months before trial, shows that notice was given. At the pretrial motion hearing defense counsel stated his intention to rely on the defense without the aid of expert testimony, and the prosecutor twice stated that he had received notice of the defendant’s intent to rely on the defense of lack of criminal responsibility. Thus, there is no issue whether the defendant complied with the notice requirement of Mass. R. Crim. P. 14 (b) (2) (A), 378 Mass. 874 (1979). The Commonwealth could, of course, have moved for an examination of the defendant.

4 In the Mattson case, the defendant based his argument on his personality change during the crime and the bizarre circumstances of the crime.

5 In the Laliberty case, the victims were repeatedly stabbed and their bodies mutilated by a drug-using defendant who had no memory of his conduct, had told the police that he felt strange (“kind of like floating”) and testified that he (“felt almost like I was hallucinating”).