Opinion
16-P-323
03-24-2017
COMMONWEALTH v. B.J.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a District Court judge finding the defendant to be permanently incompetent to stand trial and dismissing the complaint against him. We affirm.
After the defendant was arraigned on two counts each of assault and battery and defacing property, he filed a motion to "vacate the magistrate[']s order or alternatively to dismiss [the] case," alleging that, because of his severe autism, he could not have formed the intent to commit the charged offenses. In support of the motion, the defendant attached a number of documents from a guardianship proceeding in the Probate and Family Court, including a court order finding him to be "not competent" and that it would be in his best interest "to have a guardian appointed because he is incapable of making decisions regarding his person." The defendant also submitted a medical certificate from a psychiatrist who examined him in connection with the guardianship proceeding.
The judge held a nonevidentiary hearing on the motion, with the defendant in attendance. At the hearing the Commonwealth conceded that the defendant was not competent to stand trial but argued that, rather than dismissal, "the appropriate remedy would be for him to be found incompetent by the Court or not criminally responsible and keep the matter open for the half-life of the case." The judge rejected the Commonwealth's proposal and instead dismissed the charges, determining that the defendant would "not ever achieve" the capacity to understand the proceeding and was thus "permanently incompetent to stand trial." This appeal followed.
We review a judge's determination of a defendant's competence to stand trial only for an abuse of discretion, and we discern none here. See Commonwealth v. Scionti , 81 Mass. App. Ct. 266, 273 (2012). The Commonwealth's primary argument is that the judge committed an error of law by ruling that the Probate and Family Court order was "res judicata" on the issue of the defendant's competence, despite the differing legal standards that govern the respective proceedings. We disagree with the Commonwealth's characterization of the judge's decision. Although the judge did make one passing reference to res judicata, we do not construe that one remark to constitute a legal determination that the elements of either claim preclusion or issue preclusion were satisfied. Rather, we think it evident, considering the hearing transcript as a whole, that the judge made a factual determination of the defendant's competence based on the record before her, which included the Probate and Family Court order. The Commonwealth makes no claim that the judge erred in making this factual determination, and, indeed, it conceded the defendant's incompetence at the hearing. In light of that concession, we cannot say that the judge's ruling was an abuse of discretion. See Commonwealth v. Barnes , 399 Mass. 385, 390 (1987) (where defendant did "not dispute that he was competent to stand trial," judge "was entitled to infer that he was also competent to waive his right to counsel" [quotation omitted] ); Scionti , 81 Mass. App. Ct. at 272–273 (in determining defendant's competence, judge may rely on "impressions of counsel").
The Commonwealth also contends that the judge was required by G. L. c. 123, § 15(a ), inserted by St. 1986, c. 599, § 38, to appoint a clinician to examine the defendant before she could decide that he was not competent. The Commonwealth has waived this argument by raising it for the first time on appeal. See Commonwealth v. Johnson , 470 Mass. 300, 307 (2014). In any event, contrary to the Commonwealth's assertions, the plain language of the statute permits, but does not require, a judge to order an examination of a defendant if his competency is in question. See G. L. c. 123, § 15(a ) (court "may" order examination if it "doubts whether a defendant in a criminal case is competent to stand trial"); Scionti , 81 Mass. App. Ct. at 272 ("A hearing does not necessarily require the taking of evidence, especially where there are recent written reports of mental health evaluations"); id . at 273 ("The judge is not required to order a screening examination under G. L. c. 123, § 15(a ), ... each and every time a hearing is conducted with regard to competency").
Finally, the Commonwealth does not challenge the judge's finding that the defendant is "permanently incompetent," and it raises no independent argument that dismissal of the charges was not the appropriate remedy. The judge's order is, accordingly, affirmed.
Order dismissing complaint affirmed .