Essex. Indictment found and returned in the Superior Court Department on January 24, 1990. The case was tried before John L. Murphy, Jr., J. This opinion was previously reported at 416 Mass. 813.
Present: Wilkins, Nolan, Lynch, & Greaney, JJ.
The opinion of the court was delivered by: Nolan
Homicide. Practice, Criminal, Voluntariness of statement, Psychiatric examination, Instructions to jury, Hearsay, State of mind. Evidence, Admissions and confessions.
NOLAN, J. A jury convicted the defendant, Alfred J. Hunter, III, of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. *fn1 Because we conclude that the trial Judge committed reversible error when he failed to conduct a voir dire hearing on the voluntariness of Hunter's statements to two civilian witnesses, we reverse the murder conviction, and remand the case to the Superior Court for proceedings consistent with this opinion. In light of this decision, we need not address each of Hunter's arguments raised on appeal. We have chosen, however, to comment on certain issues which may occur at retrial.
At trial, there was no dispute that Hunter killed his estranged wife, on May 9, 1989, by shooting her repeatedly with a semi-automatic rifle. His defense was that, because he suffered from depression, he lacked the requisite mental state to commit the crime.
1. Failure to conduct a voir dire hearing on the voluntariness of Hunter's statements to two civilian witnesses. On the day of his arraignment, May 10, 1989, a District Court Judge ordered that Hunter be examined by a court psychiatrist and to be further examined at Bridgewater State Hospital to determine his competency to stand trial and his criminal responsibility. On June 12, 1989, Hunter was found not competent to stand trial. Not until March 6, 1990, was Hunter found competent to stand trial.
Prior to trial, Hunter filed a motion for a voir dire on the voluntariness of statements that he allegedly made to fellow prisoners John Mallia, Jr., and Joseph Christoforo on May 10, 1989, the day of his arraignment. Hunter filed an affidavit in support of this motion, stating that any statements he may have made were not voluntary because he was not mentally competent at the time, that Dr. David D. Swenson, the court psychiatrist who examined him on that date, had concluded that his mental competency was questionable, and that the Judge had committed him to Bridgewater State Hospital.
At trial, prior to the testimony of Mallia and Christoforo, defense counsel asked to be heard on Hunter's pretrial motion. Counsel made an offer of proof that Dr. Swenson would testify that on May 10, 1989, Hunter was depressed, hopeless, and suicidal, and that Dr. Swenson had questioned Hunter's competency to stand trial. The Judge denied the motion, stating that an evidentiary hearing was not necessary because the witnesses were civilians and that he would instruct the jury to decide whether the statements were voluntarily made based on all the evidence. Over defense objections, both John Mallia, Jr., and Joseph Christoforo testified. Mallia testified that, on May 10, 1989, he was transported in a van with Hunter from Salem District Court to Bridgewater State Hospital, and that during this trip, Hunter indicated that he had been very angry with his wife for taking him to court and making him sleep in his motor vehicle and that he had not been on drugs or alcohol at the time of the killing. Joseph Christoforo testified that, on May 10, 1989, he was in a holding cell in the lockup in the Salem District Court with Hunter and that Hunter told him that he had killed his wife because he had been very angry with her, that "he had shot her once in . . . each breast, once in the head, and once down in the crotch," and that he had done this because she had "cheated on him and kicked him out of the house." Dr. Swenson did not testify at trial.
Hunter argues that the Judge erred by denying his motion for a voir dire hearing on the voluntariness of the statements that he made to Mallia and Christoforo. Hunter asserts that the Judge's stated reason, that Mallia and Christoforo were civilian witnesses, is contrary to established law. Hunter also contends that he sufficiently raised this issue by submitting his affidavit with the motion for a voir dire, by making the offer of proof concerning Dr. Swenson's expected testimony, and by being found not competent to stand trial. Furthermore, Hunter contends that this error was not harmless because Hunter's statements to Mallia and Christoforo related to Hunter's mental state at the time of the killing, the sole issue at trial, and the statements may have been found to be involuntary if a voir dire had been conducted. The Commonwealth claims that Hunter did not adequately raise the issue of voluntariness and, in any event, the evidence showed that the statements were voluntarily made. The Commonwealth also maintains that there is no obvious relationship between Hunter's incompetency to stand trial and his ability to make a voluntary statement.
When the voluntariness of a defendant's statements to private citizens is in issue, the Judge must conduct a voir dire to determine the voluntariness of the statements. Commonwealth v. Benoit, 410 Mass. 506, 511, 574 N.E.2d 347 (1991). Commonwealth v. Allen, 395 Mass. 448, 456, 480 N.E.2d 630 (1985). "If the Judge determines that the statements are voluntary . . . the issue of voluntariness should be submitted to the jury for consideration." Id. The Commonwealth has the burden of proving to both the Judge and jury the voluntariness of the statements beyond a reasonable doubt. Id. at 456-457. " statement by someone who 'by dint of physical or mental impediments is incapable of withholding the information conveyed' cannot be used as evidence against him." Commonwealth v. Benoit, supra at 511, quoting Commonwealth v. Paszko, 391 Mass. 164, 177, 461 N.E.2d 222 (1984). "Statements that are attributable in large measure to a defendant's debilitated condition, such as insanity . . . are not the product of a rational intellect or free will and are involuntary" (citations omitted). Commonwealth v. Allen, supra at 455.
Despite the Commonwealth's contentions to the contrary, Hunter did raise the issue of voluntariness by making the motion for a voir dire and by submitting an affidavit that stated that he was incompetent at the time and that a psychiatrist had doubts about his competency to stand trial. See Commonwealth v. Gallagher, 408 Mass. 510, 514-515, 562 N.E.2d 80 (1990). Although the Commonwealth correctly notes that whether a defendant is competent to stand trial differs from whether he is able to make a voluntary statement, the two share common attributes and the bases for the doubts concerning Hunter's competency could have been very probative in determining whether he voluntarily made the statements. Hunter raised the issue by filing his motion and affidavit and the Judge should have conducted a voir dire hearing to determine the voluntariness of the statements. His failure to do so constitutes error.
Furthermore, even though the Judge instructed the jury on the issue of voluntariness, we cannot conclude that this error was harmless. The sole issue at trial concerned Hunter's state of mind at the time of the killing. The jury may have concluded from Hunter's statements that he was in control of what he was doing at the time of the killing and that Hunter had planned to kill his wife because she had brought him to court and had forced him out of the house. Thus, Hunter's conviction of murder in the first degree must be reversed. *fn2
2. Admission of testimony that Hunter refused to be examined for a second time by psychiatrist. The Judge had allowed the Commonwealth's motion that Hunter "present himself for an examination by a psychiatrist." The Judge's order was properly made consistent with Blaisdell v. Commonwealth, 372 Mass. 753, 769, 364 N.E.2d 191 (1977). Dr. Martin Kelly examined Hunter on September 15, 1991, pursuant to this order. On October 26, 1991, Dr. Kelly again approached Hunter and requested a follow-up interview. Hunter refused to discuss anything with Dr. Kelly, indicating that his attorney had advised him that he need not submit to any further examination. At trial, Dr. Kelly testified on direct examination that Hunter had refused to submit to further examination on October 26, 1991. Dr. Kelly explained that Hunter had refused on advice of counsel. The record indicates that the Judge admitted the testimony regarding Hunter's refusal in anticipation of defense counsel's attempts to impeach Dr. Kelly on his failure to conduct multiple examinations.
A defendant who properly exercises his right to remain silent cannot be penalized for doing so. Commonwealth v. Mahdi, 388 Mass. 679, 695 n.15, 448 N.E.2d 704 (1983). In this case, the court order required Hunter to submit to only one examination. Thus, he had the right to refuse to speak with Kelly on October 26, 1991. Testimony regarding his refusal should not have been admitted on direct examination. If, on cross-examination, defense counsel inquired into how many ...