Middlesex. Indictments found and returned in the Superior Court on January 5, 1972. The cases were heard by Dimond, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.
Due Process of Law, Competency to stand trial. Practice, Criminal, Competency to stand trial. Insanity.
The opinion of the court was delivered by: Quirico
This court reviewed a defendant's claim of incompetence to stand trial even though the issue was not raised at trial. [54-59]
Evidence of a defendant's long history of psychological problems and irrational and bizarre behavior, the testimony of a psychologist and a psychiatrist as to his mental condition, and the psychiatrist's testimony indicating a question whether the severe delusions suffered by the defendant prevented his effective cooperation with counsel clearly raised a substantial doubt as to his competence to stand trial and required that the Judge on his initiative hold an evidentiary hearing on that question. [59-62]
The prejudice caused to the defendant by the failure to hold a hearing before conviction on his competence to stand trial was not nullified by a purported finding of competence at the time of sentencing four months after the conviction or by the affirmance of the finding of competence two years after the sentence in connection with the denial of the defendant's motions for new trial. 
The defendant, having been indicted for the crimes of armed robbery, assault by means of a dangerous weapon, and unlawful carrying of a firearm, waived his right to trial by jury and was tried by a Judge of the Superior Court sitting without a jury. There was ample evidence implicating the defendant in the armed robbery at a bank, and he did not dispute that evidence but relied instead on the defense of insanity. The trial was held under the provisions of G. L. c. 278, §§ 33A-33G, and the defendant was found guilty on the three indictments. He filed motions for a new trial which were denied. He then appealed to the Appeals Court which affirmed the convictions, 5 Mass. App. Ct. 130 (1977), and we granted his request for further appellate review.
The basic issue before us is whether, in the circumstances of this case, the defendant's rights were violated by reason of the failure of the Judge, either before or during the trial, to (a) recognize that there was a serious question about the defendant's competence to stand trial, and (b) hold an evidentiary hearing and make a determination of that question. We conclude that the defendant's rights were violated, and that the judgments against him must be reversed. We thus do not reach the issue whether the evidence at the trial was sufficient for the Judge to find beyond a reasonable doubt that the defendant was criminally responsible under the rule stated in Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).
1. It has long been the law of this Comonwealth that the "trial, conviction or sentencing of a person charged with a criminal offence while he is legally incompetent violates his constitutional rights of due process" (footnote omitted), whether under the Fourteenth Amendment to the Constitution of the United States or under art. 12 of the Declaration of Rights of the Constitution of this Commonwealth. Commonwealth v. Vailes, 360 Mass. 522, 524 (1971). This same fundamental rule was also stated in Drope v. Missouri, 420 U.S. 162, 171 (1975), in the following language: "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. Thus, Blackstone wrote that one who became 'mad' after the commission of an offense should not be arraigned for it 'because he is not able to plead to it with that advice and caution that he ought.' Similarly, if he became 'mad' after pleading, he should not be tried, 'for how can he make his defense?' 4 W. Blackstone, Commentaries 24."
2. The test for determining the competency of an accused person to stand trial was stated in Dusky v. United States, 362 U.S. 402, 402 (1960), to be "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." That is the test which was applied by this court in Commonwealth v. Vailes, supra at 524, and again in Commonwealth v. Kostka, 370 Mass. 516, 522 (1976). See also Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454, 457-459 (1967). The present case raises no issue about the correctness or current applicability of the test to any particular set of facts. Rather, it involves the question whether the Judge should have initiated procedures, including an evidentiary hearing, for the determination of facts against which this test could be applied in determining the defendant's competence to stand trial.
3. It should be noted at this point that the defendant did not, at any time prior to or during his trial, assert that he was incompetent to stand trial. He was convicted on May 11, 1973, and sentenced on September 17, 1973. The first time he raised the competence issue was a motion for a new trial filed by him pro se on February 12, 1974. Before that motion was fully heard and decided, the defendant, acting through his present appellate counsel, filed a second motion for a new trial on June 20, 1975, based on the ground that he had not been afforded a hearing on his competence to stand trial. On August 13, 1975, after hearing, both motions were denied.
We have held quite consistently that a party is not entitled to appellate review on an issue which he could have raised, but did not raise, at his trial. Commonwealth v. Johnson, 374 Mass. 453, 463-465 (1978). Commonwealth v. Underwood, 358 Mass. 506, 510-512 (1970). We have also held equally consistently that we will not permit a motion for a new trial to be used as a vehicle "to examine anew the original trial for the detection of errors which might have been [but were not] raised by exceptions taken at the trial." Commonwealth v. Dascalakis, 246 Mass. 12, 24 (1923). Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). The basis for these rules is that the party's failure to raise the particular issue at trial, or to take the necessary steps to save and perfect his right of appeal thereon, amounts to a waiver of the issue. Nevertheless, we have also held that, if the strict application of these rules would give rise to "a substantial risk of a miscarriage of Justice," we may consider the alleged trial error notwithstanding the failure to lay the groundwork for appellate review. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We believe that this is a proper case for the application of the rule of the Freeman case. Inquiry into the defendant's claim of incompetence should not be easily foreclosed on the ground of waiver, since "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." Pate v. Robinson, 383 U.S. 375, 384 (1966). In his Dissenting opinion in the same case, Mr. Justice Harlan said, at 388, that if there were error at the trial level on the question of the defendant's competence to stand trial, "such an error is not 'waived' by failure to raise it and that it may entitle the defendant to a new trial without further proof. Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers."
4. We noted in part 2 of this opinion that the test of the defendant's competence to stand trial is "whether he 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." Dusky v. United States, supra at 402. Commonwealth v. Vailes, supra at 524. We now consider the question whether, in the circumstances of this case, the Judge should have acted on his own initiative to hold an evidentiary hearing and make a determination of the issue of the defendant's competence, regardless of the fact that the issue was not raised by the defendant or his counsel. In Commonwealth v. Vailes, supra at 524, we said: "In those situations where there exists doubt as to whether the defendant satisfies this test [of competence], the Judge must, on his own initiative, conduct a full hearing on the issue. Pate v. Robinson, 383 U.S. 375 . This doubt which necessitates a hearing has been more fully described as 'a substantial question of possible doubt.' Rhay v. White, 385 F.2d 883, 886 [9th Cir. 1967]." In the Rhay case the court said, at 886, that "the question here is not why counsel failed to request a competency hearing ...