Opinion
14-P-493
06-09-2015
COMMONWEALTH v. BODIE HUTCHINSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted in the Boston Municipal Court of six counts of assault and battery on a public employee in violation of G. L. c. 265, § 13D, one count of assault by means of a dangerous weapon, a shod foot, in violation of G. L. c. 265, § 15A(b), and one count of disturbing a correctional institution in violation of G. L. c. 268, § 30. The defendant appeals on the ground that jury instructions regarding the interplay between lack of criminal responsibility due to mental disease and voluntary intoxication were given in error. The defendant further contends that the evidence was insufficient to support his conviction for assault and battery by means of dangerous weapon. We affirm.
A third issue, concerning jury voir dire, was raised in the defendant's brief, but the defendant concedes in his reply brief that there was no error in the trial judge's refusal to question jurors individually.
Background. On January 2, 2010, the defendant was arrested on charges unrelated to this appeal. He remained in police custody until January 4, when he was taken to court. Following his court appearance, he was placed in the custody of the Suffolk County sheriff's department and taken to the Nashua Street jail.
As part of a routine intake procedure at the jail, correction officers attempted to strip search him. The defendant began acting belligerently, resisting the officers and yelling. The officers found some of his rantings to be incoherent. The ensuing confrontation ultimately involved approximately nine officers, several of whom suffered injuries, one officer was bitten and another suffered a broken finger and cracked ribs. The officers' strenuous attempts to physically subdue the defendant during the confrontation seemed to have no effect on him. The defendant continued to thrash about and attempted to bite those officers who came near his face even after the officers brought him to the ground and put him in handcuffs and leg irons. He eventually stopped resisting only after the officers cut off his pants with trauma sheers and sprayed him with pepper spray. A video recording of the incident starting after the altercation was underway showed the defendant restrained on the floor by several officers. The recording also showed a pair of shoes near the defendant, who was wearing only socks.
Once subdued, the defendant was placed in a chair with restraints and taken to a cell in the psychiatric unit. He was initially agitated and ranted nonsensically during periodic medical checks on the evening of January 4, but gradually grew calm as the night wore on. During one check on the morning of January 5, the defendant told a nurse he had used PCP and marijuana "yesterday" prior to coming to the jail.
At trial, the defendant argued that he was not criminally responsible for his conduct during the incident because he was suffering from an "acute phase of schizophrenia" at the time. Robert Joss, a forensic psychologist who examined the defendant two years after the altercation, testified that in his opinion the defendant was not criminally responsible because of his mental illness. Joss further testified that the defendant could neither appreciate the wrongfulness of his conduct in struggling with the officers nor conform his conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546 (1967) (explaining standard for lack of criminal responsibility). In addition to discussing the defendant's history of mental illness, Joss testified that the defendant had previously used illicit drugs, including marijuana, crack cocaine, and, occasionally, PCP. Considering the defendant's past use of PCP, Joss opined that the defendant knew not only that PCP was a hallucinogen, but also how it affected him. On cross-examination, Joss also acknowledged that the defendant's conduct during the altercation was consistent with PCP intoxication.
Joss went on to testify that he believed the defendant was mistaken when he told the prison nurse he had used PCP "yesterday" (the day of the altercation) because he believed the defendant was confused about what day it was. Joss testified that the defendant told him that he had actually smoked PCP on January 2, 2010, several hours before his arrest and two days before the incident that occurred during the intake procedure. Joss further testified that he doubted the defendant had used PCP on the day of the altercation, in part because of the inherent difficulty of consuming drugs while in custody. Joss conceded, however, that he did not know whether the defendant had in fact consumed PCP while he was in custody.
Before deliberations began, the trial judge instructed the jury that the defendant could not be considered criminally responsible if a mental disease or defect had rendered him unable to appreciate the wrongfulness of his conduct or to substantially conform his conduct to the requirements of the law. The Commonwealth requested that the judge also instruct the jury as to the impact of the interaction between a mental disease or defect and the voluntary consumption of alcohol or drugs when assessing the defendant's criminal responsibility. The defendant objected to the requested instruction, claiming that there was insufficient evidence that he was under the influence of drugs at the time of the altercation.
The judge concluded that the defendant's drug use prior to the incident was a question of fact for the jury and he delivered verbatim the model instruction suggested by the Supreme Judicial Court in Commonwealth v. Berry, 457 Mass. 602, 617-618 & n.9 (2010), and revised by Commonwealth v. DiPadova, 460 Mass. 424, 439-440 (2011). In essence, the instruction stated that a lack of criminal responsibility must be due to a mental disease or defect, which would not include a lack of such responsibility due to voluntary drug or alcohol intoxication. The judge also instructed the jury that even when the consumption of alcohol or drugs worsens a defendant's pre-existing mental disease or defect, which in turn causes the defendant to lack criminal responsibility, the defendant does not forfeit an otherwise valid defense of lack of criminal responsibility.
The Commonwealth also requested that the judge instruct the jury regarding the "knowledge exception" to the above-stated rule. The judge instructed the jury that the defense of lack of criminal responsibility based on a mental disease or defect is not available to a defendant who knew or had reason to know that his consumption of drugs or alcohol would trigger or intensify a mental disease or defect that would cause him to lose the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
The jury subsequently returned guilty verdicts on all counts.
Jury instructions. On appeal, the defendant raises two challenges to the jury instructions. First, the defendant argues that absent proof that he had used PCP, the judge should not have given an instruction involving the interplay between voluntary intoxication and the lack of criminal responsibility due to a mental disease or defect. The defendant also challenges the instruction regarding the "knowledge exception," arguing that even if he had consumed PCP there was no evidence that he knew or should have known that the drug would trigger an acute schizophrenic episode that would render him unable to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
As to the first argument, an instruction regarding the interplay between voluntary intoxication and mental disease is proper where there is evidence that a defendant asserting a lack of criminal responsibility has also consumed drugs. Berry, supra at 617. Here there was sufficient evidence of the defendant's drug use prior to the altercation with the officers to present a question of fact for the jury. The defendant told the jail nurse that he took PCP on the day of the incident. Joss also acknowledged that the defendant's behavior during the incident was consistent with that of someone under the influence of PCP. There was thus evidence before the jury that the defendant had both consumed PCP and was under the influence of that drug at the time of the altercation. On that basis, we conclude that giving the instruction in question was appropriate and did not constitute error.
Although Joss also testified to his opinion that the defendant had not taken PCP that day and could not appreciate the wrongfulness of his actions because of a mental disease or defect from which he suffered, the jury were not required to credit his opinion.
With respect to the defendant's challenge to the "knowledge exception" instruction, such an instruction is proper where there is evidence that a defendant knew or had reason to know that drug or alcohol consumption would trigger or intensify a mental disease of defect that would cause him to lose substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. DiPadova, supra at 439. Whether the defendant had such knowledge is determined subjectively and the jury "should consider the question solely from the defendant's point of view, including his mental capacity and his past experience with drugs or alcohol." Ibid.
On the facts presented at trial, however, there was no evidence that the defendant had any such subjective awareness of the effects of PCP on any underlying mental condition from which he suffered. Joss testified only that the defendant, who had a long history of mental illness, had used PCP in the past and from that experience would have known how the drug itself affected him. Crucially, however, neither Joss nor any other witness testified that the defendant's use of PCP could have triggered or intensified his underlying mental illness leading to a loss of criminal responsibility. In the absence of such evidence, the jury could not infer that the defendant knew or should have known the effects PCP would have on his mental illness affecting his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.
Although the trial judge thus erred in giving the "knowledge exception" instruction to the jury, the defendant did not object to that instruction. Consequently, "we consider whether the instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Whitman, 453 Mass. 331, 350 (2009), citing Commonwealth v. Oliveira, 445 Mass. 837, 842 (2006). We conclude that in the circumstances presented there was no substantial risk that justice miscarried. In Whitman, the Supreme Judicial Court considered a similar unpreserved challenge to a trial judge's instruction that included an unwarranted "knowledge exception." Whitman, supra at 350. There, the court concluded that giving the "knowledge exception" instruction did not create a substantial likelihood of a miscarriage of justice. The court stated that "[b]ecause there was no evidence that the defendant knew that alcohol consumption would exacerbate his mental condition, the instruction, in essence, was superfluous." Ibid. The same is true here. Absent some proof that the defendant knew or should have known that consuming PCP would exacerbate his schizophrenia to the point that he would lack criminal responsibility, the jury would have had no occasion to apply the "knowledge exception." Giving the "knowledge exception" instruction, therefore, did not cause the defendant to risk losing the otherwise valid defense of lack of criminal responsibility due to mental disease or defect and did not create a substantial risk of a miscarriage of justice. "The charge as a whole, particularly with the judge's directive that it was the Commonwealth's burden to prove that the defendant was criminally responsible, fairly instructed the jury." Id. at 350-351.
The defendant's objection to the initial instruction did not extend to the subsequent instruction regarding the "knowledge exception." Indeed the two instructions rely on different factual predicates. The initial instruction that was given (and to which the defendant objected) applies when there is evidence of drug or alcohol use by a defendant who claims a lack of criminal responsibility. Commonwealth v. Berry, 457 Mass. 602, 617 (2010). The "knowledge exception," on the other hand, requires evidence that the defendant knew or had reason to know that drug or alcohol consumption would trigger or intensify a mental disease or defect that would cause a loss of criminal responsibility. DiPadova, supra at 439. Consequently, the defendant's unsuccessful objection to the initial instruction did not address the circumstances contemplated by the subsequent instruction.
While Whitman addressed the same jury instruction as is present here, that case involved a murder in the first degree conviction so the court reviewed to determine whether the instruction created a substantial likelihood of a miscarriage of justice.
Sufficiency of evidence regarding shod foot. The defendant also argues that the evidence supporting his conviction for assault by means of a dangerous weapon, a shod foot, was not sufficient to prove beyond a reasonable doubt that he was wearing shoes at the time of the altercation. In reviewing a sufficiency of the evidence claim, we determine whether a rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, could find the crimes proved beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). On the record before us we conclude that the evidence presented was sufficient to support the defendant's conviction.
The altercation took place before the strip search of the defendant began. Although there was no direct testimony as to whether the defendant was wearing shoes at the time, taking the evidence in the light most favorable to the Commonwealth, the jury reasonably could have inferred that the defendant was wearing shoes prior to the strip search.
The video recording that was recorded after the altercation had begun shows the defendant restrained on the floor by several officers and a pair of shoes nearby. The recording also shows one of the officers carrying the shoes from the vicinity of the defendant, who at that point is wearing only socks. The jury could reasonably have inferred that at the beginning of the confrontation the defendant had been wearing the shoes shown on the video recording. The jury could also reasonably have inferred that the correction officers removed the defendant's shoes in the course of restraining him and placing him in leg irons.
Judgments affirmed.
By the Court (Rapoza, C.J., Berry & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 9, 2015.