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12/30/77 COMMONWEALTH v. RICHARD HENRY SHEEHAN

December 30, 1977

COMMONWEALTH
v.
RICHARD HENRY SHEEHAN



Essex. Indictment found and returned in the Superior Court on May 22, 1975. The case was tried before Adams, J.

Hale, C.j., Keville, & Grant, JJ.

SYLLABUS BY THE COURT

Insanity. Intoxication. Intent. Practice, Criminal, Identification of defendant in court room. Identification.

The opinion of the court was delivered by: Hale

A Judge at a robbery trial did not err in excluding psychiatric evidence relating to the defendant's incapacity to form the intent to steal where the record did not support the defendant's contention that the exclusion was based on the Judge's erroneous interpretation of the law of the Commonwealth as not requiring proof of intent to steal as an element of the crime of robbery and where the Judge correctly charged the jury on intent to steal. [758]

At a criminal trial, there was no error in excluding psychiatric testimony concerning the defendant's drug addiction and voluntary intoxication at the time of the crime where such testimony was insufficient to warrant a finding that the defendant was insane or that he lacked the ability to form an intent to steal. [759-761]

At a criminal trial, there was no error in the Judge's refusal to instruct the jury to the effect that the defendant should be acquitted if the jury had a reasonable doubt whether, because of the degree of his intoxication, he was capable of forming or did form a specific intent to commit armed robbery. [761-762]

At a criminal trial, there was no error in the Judge's refusal to instruct the jury as to the Commonwealth's burden of proving the defendant's sanity beyond a reasonable doubt where the evidence was insufficient to raise the issue of insanity. [762]

At the trial of a defendant who had been arrested in the course of his commission of a robbery, a directed verdict of not guilty was not required by the fact that the Commonwealth failed to have any witness directly identify the defendant in court as the person who had committed the robbery where the evidence was sufficient to support a reasonable inference to that effect. [762-763]

The defendant was indicted for robbery while armed and masked and after a jury trial under G. L. c. 278, §§ 33A-33G, was found guilty of robbery *fn1 and sentenced to a term of imprisonment, with an order that he be afforded treatment as a drug dependent person in accordance with G. L. c. 123, § 48, as amended by St. 1974, c. 827, §§ 18 and 19. He now appeals and argues several assignments of error, most of which are addressed to the Judge's rulings excluding certain testimony.

At trial the Commonwealth introduced evidence from which it could have been found that on the evening of March 22, 1975, the defendant, wearing dark clothing and a dark cap, entered a drugstore in Salem. Portions of the defendant's face were covered with adhesive tape. He had a nylon stocking pulled over his forehead and plastic gloves on his hands. He appeared as if he had either been in an accident or was ill and on medication but in control of his actions. The defendant spoke with a clerk in the drugstore who then led the defendant to the pharmacist. He presented the pharmacist with a bag and demanded that she fill it with class A and class B drugs. Although the defendant had a hunting knife in the back pocket of his trousers, he did not expose the weapon to the pharmacist or the clerk. He did, however, threaten them with harm if they did not obey his instructions. In compliance with the defendant's order the pharmacist went to the safe and placed several bottles of drugs in the bag. When she returned the defendant took the bottles from the bag and questioned her regarding their contents.

During this transaction the defendant paid little or no attention to the customers who were also in the drugstore. One customer who realized that a robbery was occurring slipped out of the drugstore and phoned the police. Two Salem police officers arrived at the drugstore in response to the call. The officers overpowered the defendant, disarmed him and placed him under arrest.

The defendant testified that he had taken drugs for a period of seventeen years. He described in some detail his habit of frequently becoming intoxicated on alcohol, narcotics and other drugs. He also recounted several of his convictions over the previous seventeen years for offenses which he claimed had been committed in order to obtain drugs or money to buy drugs. He also presented testimony indicating that he had been intoxicated every day of the week prior to the robbery. There was testimony that on the day of the robbery the defendant had consumed quantities of methadone, heroin, amphetamine and alcohol. He admitted that he had voluntarily consumed these drugs. He claimed that due to his intoxication on these drugs he had no memory of events occurring between the late afternoon of the day of the robbery and the morning of the next day, and that he had no recall of his participation in the robbery.

The defendant attempted to present testimony by a Dr. Mercer, a psychiatrist experienced in the treatment of drug dependent persons. After the jury heard Dr. Mercer's qualifications, the Commonwealth requested (and the Judge granted) a voir dire examination on the intended substantive testimony. Dr. Mercer then testified that her evaluation of the defendant's mental state was based on two interviews which she had conducted with the defendant on the testimony given by prior witnesses at the trial. On the basis of the information which she had gained therefrom, she concluded that the defendant's consumption of intoxicants on the day of the robbery had caused him to "black out" prior to and during his commission of the robbery. She indicated that by the term "black out" she meant that the defendant had been capable of acting but had retained no memory of his actions. She stated that in her opinion when a person reaches a degree of intoxication which causes him to "black out," his judgment and ability to control his conduct become temporarily impaired. Dr. Mercer also stated that she viewed the defendant's intoxication at the time of the robbery as an expression of his psychological dependence on and addiction to several ...


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