Opinion
14-P-1577
10-22-2015
COMMONWEALTH v. STEPHEN P. BAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury-waived trial in the District Court, the defendant, Stephen P. Bay, was convicted of assault and battery on a person sixty years of age or older. On appeal, he claims that the judge should have allowed his motion for a required finding of not guilty because he lacked criminal responsibility for his actions. See Commonwealth v. McHoul, 352 Mass. 544, 546 (1967). We affirm.
Background. Viewed in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the fact finder could have found the following. On the day of the assault, the defendant was scheduled for a cancer screening at Massachusetts General Hospital. Although the defendant was prescribed a daily dose of Klonopin, he was also given Ativan in advance of the procedure in order to control a muscle disorder, to help keep him still for the procedure. Both Klonopin and Ativan are benzodiazepines. It was after the defendant was released from the hospital that the assault occurred. More specifically, as the sixty-five year old victim was exiting a bus in Everett, the defendant pulled at her glasses and squeezed her neck for about one minute. A friend of the victim's responded, and the defendant released his hold on the victim.
The defendant did not dispute his actions, but argued that he was not criminally responsible due to involuntary intoxication. See Commonwealth v. Darch, 54 Mass. App. Ct. 713, 715 (2002) ("Examples of involuntary intoxication include situations . . . where a defendant suffers intoxicating effects from prescription medication used as instructed"). To support this theory, the defendant presented the testimony of a psychiatrist, Dr. James Bonnar. Bonnar testified that, under the same dose of medication the defendant received, it was "likely" that a person would be unable to appreciate the wrongfulness of his or her actions and there would be an "[e]normously high likelihood" that the person would not be able to conform his or her conduct to the law. Bonnar acknowledged, however, that he had not seen the defendant on the day of the incident, that he was not the defendant's medical doctor, that the doctors who had prescribed the benzodiazepines to the defendant were professionals like himself, and that a similar amount of benzodiazepine "would have put me to sleep." The Commonwealth presented no expert testimony in rebuttal.
Analysis. The defendant's case is governed by the principle that it is the role of the fact finder, alone, to determine criminal responsibility. See Commonwealth v. Keita, 429 Mass. 843, 845-849 (1999); Commonwealth v. Fernandes, 436 Mass. 671, 676 (2002); Commonwealth v. Rasmusen, 444 Mass. 657, 662 n.6 (2005). "The Commonwealth . . . may prove sanity without presenting expert testimony. . . . A trier of fact may reject the testimony of experts that a defendant lacked criminal responsibility and may infer sanity from the defendant's conduct and the facts of the crime." Commonwealth v. Keita, supra at 846. Here, the judge found that Bonnar's testimony that the defendant lacked knowledge of his actions was "not conclusive." The judge also determined that Bonnar's opinion lacked foundation. Finally, he indicated he was not persuaded by Bonnar's opinion. We assume that the judge correctly instructed himself on the law. Commonwealth v. Healy, 452 Mass. 510, 514 (2008). In the circumstances, the judge was free to reject Bonnar's opinion, and infer, based on the other testimony presented, that the defendant was criminally responsible for his behavior. Accordingly, we discern no error.
Judgment affirmed.
By the Court (Berry, Green & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 22, 2015.