Blaisdell v. Com.

• Decision Date: 14 June 1977
• Citation: 372 Mass. 753,364 N.E.2d 191
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 191

364 N.E.2d 191

372 Mass. 753

Charles BLAISDELL v. COMMONWEALTH Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1977.

Decided June 14, 1977.

Francis J. DiMento, Boston (Thomas C. Cameron, Boston, with him), for plaintiff.

Charles C. Dalton, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

The plaintiff here, hereinafter called the defendant, awaits trial in the Superior Court for the county of Essex on an indictment for murder in the first degree. On November 1, 1973, the day after the alleged homicide, the defendant was examined at the Central District Court of Northern Essex by three psychiatrists, two of whom reported to the presiding judge of that court that the defendant was competent to stand trial. The examination in the District Court apparently was ordered under the provisions of G.L. c. 123, § 15.

On July 28, 1975, the Commonwealth filed a motion in the Superior Court by which it requested the defendant to disclose whether it was his intent to interpose a defense of insanity; if so, the Commonwealth further requested that he disclose the names of supporting witnesses and the circumstances giving rise to the defense. The Commonwealth also moved that if this defense was to be interposed the defendant be ordered to submit to psychiatric examination and evaluation. This motion was heard and the defendant's counsel consequently filed a written statement stating his intention to interpose the defense of insanity.

A further hearing on the remainder of the Commonwealth's motion was held on September 16, 1975. At that hearing the defendant, through his counsel, informed the court that he had disclosed to the Commonwealth the name of one psychiatrist who would testify on his behalf. The trial judge, relying on the statutory authority of G.L. c. 123, § 15, then allowed that part of the Commonwealth's motion which sought to have the defendant submit to a psychiatric examination on or before September 25, 1975. The judge also stated that if the defendant did not co operate in the examination he would be foreclosed from raising the defense of insanity at trial. The defendant duly excepted and claimed appeal therefrom. He thereupon filed this petition with the county court seeking relief under G.L. c. 211, § 3. The Superior Court judge stayed his order during the pendency of this petition. the single justice accepted jurisdiction and reserved and reported the questions set forth in the margin ¹ to the full court.

Although we have stated that we will exercise our general superintendence powers under G.L. c. 211, § 3, to review criminal cases "(o)nly in the most exceptional circumstances," Gilday v. Commonwealth, 360 Mass. 170, 171, 274 N.E.2d 589, 590 (1971), we do so here, as we did in Gilday, for the reasons therein stated. The issues here presented are similar in part to those raised in Gilday, where we upheld an order to disclose an intention to raise an insanity defense and an alibi defense but vacated that part of the order requiring pretrial disclosure of names, addresses and dates of birth of witnesses pertaining to any proposed alibi defense.

The issues raised by the interlocutory order of the Superior Court judge, and the reservation and report of the single justice, involve difficult questions of both a constitutional and statutory nature. We have previously stated that "we can and should act 'at whatever stage in the proceedings it becomes necessary to protect substantive rights.' " Myers v. Commonwealth, 363 Mass. 843, 844, 298 N.E.2d 819, 821 (1973), quoting from Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817 (1967). The questions reserved and reported by the single justice involve matters of great import not only to the defendant but also to the Commonwealth. Thus, we feel it appropriate to exercise our powers under G.L. c. 211, § 3. The defendant makes three arguments here. He claims (1) the lower court's use of G.L. c. 123, § 15, as a "discovery device" runs counter to the purpose of the statute; (2) the order that the defendant submit to a psychiatric examination is 'unprecedented and excessive in scope"; and (3) that the trial court's threat of sanctions should the defendant refuse to submit to psychiatric examination "chills" the exercise of his privilege against self-incrimination.

The first claim seems to us to be without merit. We note that G.L. c. 123, § 15, in its present form came about as a consequence of substantial revision of what formerly was known as the "Briggs Law" (G.L. c. 123, § 100A). See St.1970, c. 888; St.1971, c. 760; St.1973, c. 569. To the extent the defendant argues that the statute in its present form authorizes a court to order psychiatric examination solely on the matter of whether a defendant should be put to trial as distinguished from the issue of whether the defendant lacked criminal responsibility at the time of the alleged offense, that argument is refuted by the express language of the statute. The language of the statute clearly authorizes not only examinations to determine competency to stand trial but also permits a psychiatric examination whenever the court "doubts whether a defendant in a criminal case . . . is criminally responsible by reason of mental illness or mental defect . . . ." G.L. c. 123, § 15(a ), as amended by St.1971, c. 760, § 12. The statute also permits such an examination to be ordered "at any stage of the proceedings."

It is true, as pointed out by the defendant, that one of the purposes of the statute, as carried forward from its predecessor G.L. c. 123, § 100A, is to prevent putting to trial an individual who either is not competent at the time of trial or who was not criminally responsible for his otherwise wrongful acts. See Commonwealth v. Gray, 314 Mass. 96, 104, 49 N.E.2d 603 (1943); Commonwealth v. Devereaux, 257 Mass. 391, 396-397, 153 N.E. 881 (1926). Such a statutory "screening" purpose is not inconsistent with the additional purpose of providing to the court and to the Commonwealth helpful medical and psychiatric information at any point in the proceedings pertaining to the trial issue of the defendant's criminal responsibility. Whether, however, such a statutory purpose intrudes on rights constitutionally protected is another matter.

Before reaching that question, we turn briefly to the defendant's claim that the order in this case was "excessive" in scope. To the extent the defendant relies on the claim that this is an improper discovery order without reciprocity, issued in the absence of rule or statute authorizing discovery, we concur. See Gilday v. Commonwealth, 360 Mass. 170, 274 N.E.2d 589 (1971); Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). We believe, however, that our discussion of the applicable constitutional and statutory provisions will provide a suitable framework for such an order to be devised appropriately.

The most significant and difficult aspect of the defendant's argument is the assertion that the possible preclusion of expert psychiatric testimony in support of his insanity defense constitutes an impermissible "chill" on the exercise of his privilege against self-incrimination.

This assertion implies the applicability of the privilege against self-incrimination in this context; a principle of law which has not been decided in this Commonwealth but which has produced varying approaches in other jurisdictions. See, e. g., United States v. Albright, 388 F.2d 719 (4th Cir. 1968); French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963); People v. English, 31 Ill.2d 301, 201 N.E.2d 455 (1964); State v. Buzynski, 330 A.2d 422 (Me.1974); State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965); Lee v. County Court, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. denied, 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50 (1971); State ex rel. LaFollette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). The question also has provoked much debate in scholarly journals. See, e. g., Berry, Self-Incrimination and the Compulsory Mental Examination: A Proposal, 15 Ariz.L.Rev 919 (1973); Note, Requiring a Criminal Defendant to Submit to a Government Psychiatric Examination: An Invasion of the Privilege Against Self-Incrimination, 83 Harv.L.Rev. 648 (1970); Danforth, Death Knell for Pre-Trial Mental Examinations? Privilege Against Self-Incrimination, 19 Rutgers L.Rev. 489 (1965); Comment, Compulsory Mental Examinations and the Privilege Against Self-Incrimination, 1964 Wis.L.Rev. 671; Note, Pre-Trial Psychiatric Examination: A Conflict with the Privilege Against Self-Incrimination? 20 Syracuse L.Rev. 738 (1969).

Whether a constitutional right is "chilled" as the defendant claims by the imposition of a sanction of the sort proposed by the trial judge here, depends on the threshold questions of (1) whether the right claimed applies; and (2) if so, whether the proposed State action infringes on it. The question of what sanctions, if any, are permissible need not be reached unless both questions are resolved in a way favorable to the defendant's claim. See generally, Note, The Preclusion Sanction A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342 (1972).

The Fifth Amendment to the Constitution of the United States provides: "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." Similarly, Part I, art. 12 of the Declaration of Rights of the Massachusetts Constitution provides: "No subject shall . . . be compelled to accuse, or furnish evidence against himself."

In order for the privilege to apply, at least two factors need be established. The privilege does not bar the State's use of evidence which incriminates the defendant, but rather the compelled production of such evidence from the defendant. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Williams v. Florida, ...