Opinion
19-P-1135
08-14-2020
COMMONWEALTH v. BRIAN P. SMITH.
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
The defendant appeals from his convictions on five charges, claiming that he lacked criminal responsibility. The convictions arose from an incident in 2018, in which the defendant strangled, punched, and otherwise attacked his domestic partner of multiple years. The defendant had a long history of mental illness -- namely, bipolar disorder with manic and psychotic episodes -- and was manifesting signs of mental illness during the attack. During the jury-waived trial in the District Court, the victim's testimony provided the only description of the attack. The defendant did not testify; he asserted a criminal responsibility defense through expert witness testimony and in closing argument. The expert he retained, forensic psychologist Dr. Lauren Lussier, conducted a criminal responsibility evaluation (evaluation) of him, which was admitted in evidence. Dr. Lussier did not reach a firm conclusion on the ultimate issue of criminal responsibility. The Commonwealth did not offer any expert testimony.
Assault and battery on a household member; intimidation of a witness; assault and battery by means of a dangerous weapon; strangulation or suffocation; and assault and battery causing serious bodily injury.
On appeal, the defendant raises a sufficiency challenge. He argues that the Commonwealth did not carry its burden of proving criminal responsibility beyond a reasonable doubt, by showing that at the time of the crimes the defendant had substantial capacity (1) to appreciate the wrongfulness of his actions, and (2) to conform his conduct to the requirements of the law. We conclude that this is not the "rare case" where the evidence and reasonable inferences drawn therefrom are insufficient to prove criminal responsibility, and accordingly affirm.
Background. 1. The Commonwealth's case. The victim testified to the following facts, as part of the Commonwealth's case-in-chief. The victim and the defendant met in or around 2014, and subsequently became romantically involved. They lived together in the victim's apartment in Cambridge. The victim was aware that the defendant had bipolar disorder. For two years, from late 2015 to late 2017, the defendant consistently took psychiatric medication, and was for the most part stable. In the fall of 2017, however, the defendant's mental health worsened.
We recite the facts from the evidence adduced at trial.
In December of 2017, the defendant stopped taking his medication, left his job, and moved to New Hampshire. He told the victim that he "had a grand plan to save the youth" there. He then spent approximately two months homeless in New Hampshire. In mid-January of 2018, the victim brought the defendant back to Cambridge. Over the following ten or so days, the defendant exhibited "increasingly manic" behavior -- such as "talking nonstop" and "performing" in front of photographs around the house -- and slept very little. On January 28, the defendant acted violently toward the victim for the first time -- he cornered her and pulled her hair hard, after she commented on the mess he had left in the kitchen. That situation defused without further incident.
The following night, January 29, 2018, when the defendant and the victim were at home together, the defendant began asking the victim why she appeared to be afraid of him, and told her that he would "never hurt [her]." At that point he was "on his knees" and "being very sweet." The victim responded that the defendant had already hurt her, and brought up the defendant's infidelity. The defendant then mentioned the name of a previous girlfriend, prompting an eye-roll from the victim. At that, the defendant began strangling the victim. The strangling did not last long, although the victim did not recall what caused the defendant to stop. The defendant then began asking "why his music was not showing up" on an iPad that the two shared; he then accused the victim of conspiring with the defendant's former job supervisor (whom he had not seen in over three years), to "steal[] his music." Intending to answer the defendant's question about the whereabouts of "his music," the victim took out her cell phone, which the defendant then grabbed and threw across the room.
The defendant thereafter brutally beat the victim. Among other things, he punched her in the face and head over fifteen times; banged her head repeatedly against a door; dragged her twenty feet across the floor; and punched her in the head as she lay in a bathtub. He did not stop when the victim protested. At points throughout, the defendant asked, "[W]hat did you do with my music?" and "[W]ho were you working with to steal my music?" At some point -- it is unclear when -- the victim attempted to dial 911 on her home telephone, but the defendant removed the telephone's batteries and threw them across the room.
Eventually, while being punched in the bathtub, the victim asked the defendant, "If I give you some money will you stop?" At that point, the defendant "all of a sudden changed." He asked, "How much money do you have?" The victim replied that she had sixty or eighty dollars in her purse. The defendant stated, "That sounds good. I think you're good for it[,]" and began gathering his belongings into his backpack. He took the money from the victim and left. Before leaving the apartment that night, the defendant retrieved and pocketed the victim's cell phone that he had thrown across the room.
2. The defendant's expert witness. Dr. Lussier's evaluation described the defendant's history of mental illness and substance abuse, among other things. In particular, the evaluation stated that the defendant was diagnosed with bipolar disorder and substance use disorder in his late teens, and discussed his history of mania and psychotic episodes.
Dr. Lussier determined that the defendant "clearly was acutely manic and psychotic at the time of the alleged offense." As to the ultimate issue of the defendant's criminal responsibility, however, Dr. Lussier did not reach a firm conclusion. She stated in her evaluation and at trial that she could not opine fully, because the defendant essentially denied all of the accusations and did not provide a complete account of what happened.
Instead of opining fully on the ultimate issue, the evaluation identified facts that could support, as well as those that could detract from, a finding of criminal responsibility. For example, the evaluation stated that the defendant's clear paranoia and acute mania "lend[] support to the possibility that his capacity to appreciate the wrongfulness of his conduct was impaired." On the other hand, the fact that the defendant stopped the attack after being offered money "indicat[ed] some capacity to conform his conduct [to the requirements of the law]."
The judge found the defendant guilty on all counts. The defendant appeals.
Discussion. After a criminal defendant asserts a defense of lack of criminal responsibility, and some evidence is offered in support, the Commonwealth must then prove beyond a reasonable doubt that the defendant was criminally responsible for the charges. See Commonwealth v. Lawson, 475 Mass. 806, 812 (2016). Once the defendant has made the threshold showing, the Commonwealth may not rely upon the so-called "presumption of sanity" -- that is, "[t]he inference that a defendant is probably sane because most people are sane." Id. at 814. Rather, the Commonwealth must present evidence to meet a two-prong test -- that the defendant "retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law." Commonwealth v. Griffin, 475 Mass. 848, 856 (2016), quoting Model Jury Instructions on Homicide 10 (2013). Evidence of either prong of criminal responsibility may include:
"[T]he inferences arising from the circumstances of the offense, including evidence that the defendant planned the offense, acted on a rational motive, made rational decisions in committing the offense and in avoiding capture, and attempted to conceal the offense or his or her role in the offense."Lawson, supra at 816. Such evidence may also include "evidence of the defendant's words and conduct before, during, and after the offense." Id. Expert testimony is not required to prove criminal responsibility. See id. at 815-816.
Although expert testimony is not required, the Supreme Judicial Court has cautioned that where the evidence "provides only weak support for a finding of criminal responsibility, the Commonwealth proceeds at its peril if it chooses to offer no expert testimony to rebut a defense expert's opinion of lack of criminal responsibility." Lawson, 475 Mass. at 817. The caution has somewhat less force in this case, because as noted, the defense expert here did not offer an opinion of lack of criminal responsibility.
The Commonwealth does not contest that the defendant has a mental illness; indeed, it does not really contest that the defendant was exhibiting signs of mental illness at the time of the offense. But the Commonwealth maintains that the evidence was sufficient, nevertheless, for a fact finder to infer that the defendant was capable of appreciating the wrongfulness of his conduct and conforming that conduct to the law. In evaluating sufficiency we apply a standard essentially the same as the familiar standard of Commonwealth v. Latimore, 378 Mass. 671 (1979); we "examine the evidence in the light most favorable to the Commonwealth and determine whether 'the evidence and the inferences that reasonably could be drawn from it were of sufficient force' to permit a rational finder of fact to conclude that the defendant was criminally responsible beyond a reasonable doubt." Griffin, 475 Mass. at 855, quoting Lawson, 475 Mass. at 816.
The Supreme Judicial Court has twice recently applied this standard, in Lawson and Griffin, each time rejecting challenges to the sufficiency of the evidence of criminal responsibility. In Lawson, the defendant assaulted police officers and resisted arrest. At trial the defendant presented an expert witness, who opined that the defendant's conduct was "driven by a distorted sense of reality caused by the symptoms of his mental illness" -- schizoaffective disorder -- "and that he could not conform his conduct to the requirements of the law." Lawson, 475 Mass. at 810. The Commonwealth did not present any expert evidence of its own. The court in Lawson nevertheless concluded that the Commonwealth had satisfied its burden of proving criminal responsibility. The court relied on inferences that could be drawn from the defendant's conduct before and during the event: the court noted that the defendant had outstanding warrants and that the evidence supported inferences that he first attempted to divert the officers' attention, and then physically struggled against them because he feared he would be returned to jail. The evidence indicating that the defendant's actions were motivated by fear of being returned to jail showed "rational decisions." Id. at 816. Lawson accordingly illustrates how evidence of an effort to avoid capture may support a conclusion of substantial capacity to appreciate the wrongfulness of one's conduct.
In Griffin, the Supreme Judicial Court similarly rejected a sufficiency challenge to a finding of criminal responsibility. That case involved a defendant who claimed that God had commanded him to kill his daughter. See Griffin, 475 Mass. at 854. In rejecting the defendant's challenge, the court reasoned that the evidence showed methodical planning of the crime, including precautions taken to avoid capture, as well as a motive -- which may be relevant evidence to either prong of criminal responsibility. See id. at 857; Commonwealth v. Kostka, 370 Mass. 516, 538 (1976).
Notably, in Lawson, the court also stated that "[i]t will be the rare case where the totality of the evidence . . . will not be sufficient" to overcome a defense of lack of criminal responsibility. Lawson, 475 Mass. at 817. This statement reflects the reality that a defendant mounting such a sufficiency challenge is asking a court to rule that the defendant lacked criminal responsibility as a matter of law.
Turning to the facts of this case, we acknowledge the strong evidence that the defendant had a mental illness at the time of the crimes, and that he had been manifesting signs of mental illness in the preceding days. Nevertheless, four facts established by the victim's testimony could have enabled the fact finder reasonably to infer that during the attack the defendant had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the law. To begin, the defendant commenced the attack after the victim brought up the topic of his infidelity. The evidence permitted a fact finder to infer that the victim's statements provoked the defendant, and supplied him with a motive for the attack. See Griffin, 475 Mass. at 856-857; Lawson, 475 Mass. at 816-818. See also Commonwealth v. Ricard, 355 Mass. 509, 515 (1969) (taunt during bar fight "evidence of provocation" relevant to sufficiency analysis).
Furthermore, there was specific evidence that the defendant sought to avoid capture during the attack, which showed a substantial capacity to appreciate the wrongfulness of his conduct. The victim testified that the defendant grabbed and threw the victim's cell phone when she removed it from her pocket, and that he subsequently pocketed the cell phone before leaving the scene. The defendant also took the home telephone from the victim when she attempted to dial 911, and then removed the batteries from it. As in Lawson, these two actions reasonably could have been viewed as purposeful attempts to prevent the victim from calling for help, and thus, as efforts to avoid capture. See Griffin, 475 Mass. at 857 (defendant's act of cutting telephone lines at victim's house prior to crime evidence of rational precaution taken to avoid capture).
Taken in the light most favorable to the Commonwealth, the evidence also showed that the defendant made a "rational decision" in ending the attack, and thus, that he had substantial capacity to conform his conduct to the requirements of the law. The victim testified that the defendant immediately stopped attacking her when she offered him money, which he took and then promptly left the apartment. Considered in context, a reasonable fact finder could have taken this fact as evidence of the defendant's rational response to an incentive. There was evidence tending to show that the defendant needed money -- he had not earned an income since December, had spent two months homeless in New Hampshire, and had asked the victim to buy him cigarettes shortly before the attack. As with the actions taken to avoid capture, the act of ending the attack in exchange for money constituted a "rational decision" under Lawson. See Lawson, 475 Mass. at 816. In particular, this evidence arguably showed the defendant's substantial capacity to comport himself lawfully, given the immediacy with which the defendant ceased the attack.
The thrust of the defendant's argument on appeal is that the Commonwealth did not satisfy its burden of proof nonetheless, because the evidence was "in equipoise." This argument essentially asks this court to assess the weight of the evidence anew. That is not our role; in reviewing the sufficiency of the evidence, "we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 351 (2015), quoting Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Even the defendant's expert would not opine that he lacked criminal responsibility at the time of the crime. While the evidence of the offense supported an inference of serious mental instability, so too could it support an inference of significant rational behavior. The trial judge, as the fact finder, "was in the best position to evaluate the evidence." Commonwealth v. Cullen, 395 Mass. 225, 231 (1985). We cannot say, on this record, that the defendant lacked criminal responsibility as a matter of law.
To the extent that the defendant argues that he could not have brutally attacked his companion of multiple years -- his "greatest ally in life" -- unless he had lacked criminal responsibility, the argument fails under the case law. See Griffin, 475 Mass. at 854-857 (evidence sufficient to find defendant who killed young daughter criminally responsible); Ricard, 355 Mass. at 515 (rejecting syllogism that defendant "was not rational as otherwise he would not have killed a man").
Judgments affirmed.
By the Court (Neyman, Englander & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 14, 2020.