Opinion
19-P-1771
10-02-2020
COMMONWEALTH v. MATTHEW SWART.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury trial in the Superior Court, defendant Matthew Swart was committed to the Massachusetts Treatment Center at Bridgewater as a sexually dangerous person (SDP) for an indeterminate period of one day to life. In this consolidated appeal, the defendant challenges both his commitment and the denial of his motion for new trial, arguing that the trial judge erred in failing to make an explicit finding as to the defendant's competency before conducting the trial. We affirm.
Background. In August, 2017, following the defendant's temporary commitment as an SDP and the Commonwealth's petition for trial, this matter was scheduled for a jury trial. When the case was called for trial on March 8, 2017, the judge noted his understanding that "there was some possibility of an issue of competency," and asked if the issue had been "resolved." Defense counsel, citing to Commonwealth v. Nieves, 446 Mass. 583 (2006), responded "that competency, even if raised in these kinds of cases, . . . would be essentially of no consequence," and indicated her understanding that the defendant would be required to go forward whether competent or not. Based on that understanding, she declined to raise the issue of competency on that day. The case was held for trial until the following day.
On March 9, 2017, before the trial began, defense counsel did raise the issue of competency. Reporting that the defendant "wishes to exercise his right to a jury trial," counsel expressed her concerns that the defendant lacked any understanding of the jury selection process. Defense counsel asked the judge to have the defendant evaluated for competency "in order to have perhaps a guardian appointed for him, in order to make decisions on his behalf," including the decision about whether to waive his right to a jury. The judge denied those requests, noting that under Nieves, "[trial counsel] can make the decisions." See id. at 591-592. Defense counsel indicated that although she would not advise the defendant to exercise his right to a jury trial, she "would be very uncomfortable making a decision that takes away his right to a jury trial where he has asserted it," regardless of any deficits in the defendant's understanding. Relying on Nieves, the judge ruled that the case would go forward to trial. Deferring to the defendant's choice, defense counsel elected to go forward to a jury trial. A jury was impaneled and, after trial, the defendant was committed. The defendant appealed his commitment.
Defense counsel indicated that the Commonwealth "stated that they would go jury-waived, so that was an option in this case."
Having been given leave to do so, the defendant filed a motion for new trial, arguing that the trial judge's application of Nieves, in the absence of a determination that the defendant was incompetent, deprived the defendant of "his rights to a fair trial and due process." A different Superior Court judge summarily denied the defendant's motion. The defendant appealed the order denying his motion; his appeals were consolidated under this docket number.
The trial judge had retired by the time the motion for new trial was decided.
Discussion. "We review the denial of a motion for new trial only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Spring, 94 Mass. App. Ct. 310, 319-320 (2018), quoting Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014). We discern neither error nor abuse of discretion in the motion judge's ruling.
First, as a practical matter, on the record before us, we conclude that the trial judge implicitly found that the defendant was incompetent. The record shows that, aware of defense counsel's specific concerns about her client's competency, the judge concluded that Nieves "control[led]." While not an explicit finding of incompetency, the judge's conclusion imports his finding that the defendant was incompetent. See Nieves, 446 Mass. at 589-591 (discussing proper application of G. L. c. 123A to incompetent person). The judge's statement that, "even assuming that Mr. Swart is incompetent, the case can to go forward to trial," followed immediately by, "So we will go forward to trial," provides further support for our conclusion.
Unlike some other statutes related to incompetent persons, G. L. c. 123A does not establish formal requirements for determining competency. Compare, e.g., G. L. c. 123, § 15 (a) (requiring expert examination as prerequisite to determination of competency to stand trial), with G. L. c. 123A, §§ 12-14 (absent such requirement). To the extent that the defendant argues that he was entitled to a competency hearing applying the standard set out in Commonwealth v. Vailes, 360 Mass. 522, 524 (1971), we are not persuaded. In Vailes, the Supreme Judicial Court noted Massachusetts' longstanding acceptance of the rule that trying, convicting, or sentencing an incompetent person charged with a criminal offense offends due process. See id. In Nieves, by contrast, the court held that commitment of an incompetent person as an SDP does not have that effect. See Nieves, 446 Mass. at 590-591.
Even had the judge not made such a finding, the defendant has failed to support his claim that its absence would have "had the net effect of stripping Mr. Swart of his rights to a fair trial." He identifies no statutory, common law, or constitutional right to which he was entitled that he did not receive. The defendant was represented by counsel. See Nieves, 446 Mass. at 591. Defense counsel honored the defendant's intention to exercise his right to a jury trial, see G. L. c. 123A, § 14 (a), and, at trial, effectively presented evidence on the defendant's behalf, including the testimony of an expert witness, and forcefully cross-examined the Commonwealth's witnesses. See Nieves, supra at 591-592, and cases cited therein. The defendant does not identify how his rights were impaired, and does not suggest that he would have made different strategic choices had an explicit determination of incompetency been made.
Indeed, the defendant is clear that, other than the judge's failure to make an explicit finding that the defendant was incompetent, "everything else that happened [at trial] was appropriate." The defendant does not seriously contend that he was prejudiced by the judge's failure to make an explicit finding.
At oral argument, the defendant's counsel conceded that even had the defendant been "evaluat[ed] . . . by a medical doctor" for competency, it is "crystal clear" that he would have been found incompetent; even absent an explicit competency determination, all of the defendant's rights were protected at trial through the effective advocacy of trial counsel; and he would not have expected a different outcome had the judge made the explicit finding of incompetence that the defendant argues was required. We agree, and are not persuaded that though the outcome might be different in another case, it warrants a new trial in this one. We "[are] not empowered . . . to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before [us]." Sullivan v. Langtry, 233 Mass. 543, 546 (1919), quoting California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893).
Conclusion. We discern no error in the trial judge's rulings, and neither error nor abuse of discretion in the motion judge's denial of the defendant's motion for new trial. The judgment is affirmed and the order denying the defendant's motion for new trial is affirmed.
To the extent that the defendant's oral argument made reference to structural error, the defendant did not raise the argument in the trial court or in his appellate brief. Therefore, the defendant has waived any such argument. See Commonwealth v. LaChance, 469 Mass. 854, 857 (2014) (structural error subject to doctrine of waiver); Commonwealth v. Graziano, 96 Mass. App. Ct. 601, 607 n.10 (2019) (argument not raised in trial court or in defendant's appellate brief is waived). Moreover, the defendant concedes that there is no authority to support an argument that the absence of an explicit finding of incompetency amounted to structural error.
So ordered.
By the Court (Meade, Kinder & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 2, 2020.