Com. v. Beattie

• Decision Date: 10 October 1990
• Docket Number: No. 89-P-1243,89-P-1243
• Citation: 29 Mass.App.Ct. 355,560 N.E.2d 714
• Parties: COMMONWEALTH v. Dexter BEATTIE.
• Court: Appeals Court of Massachusetts

Page 714

560 N.E.2d 714

29 Mass.App.Ct. 355

COMMONWEALTH v. Dexter BEATTIE.

No. 89-P-1243.

Appeals Court of Massachusetts Essex.

Argued June 14, 1990.

Decided Oct. 10, 1990.

Michael J. Traft, Boston, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for the Com.

Before FINE, KAPLAN and GILLERMAN, JJ.

GILLERMAN, Justice.

The defendant was indicted by an Essex County grand jury for the crimes of attempt to murder and assault and battery. See G.L. c. 265, § 16, and G.L. c. 265, § 13A. The victim was the defendant's wife. A jury convicted the defendant of both charges on May 25, 1989 (the conviction of assault and battery was placed on file with the defendant's consent), and a timely notice of appeal was filed.

On appeal the defendant argues that (1) the indictment should be dismissed for failure to allege an overt act; (2) there were errors in the judge's instructions to the jury; and (3) the judge erroneously excluded certain evidence.

The relevant evidence presented to the jury was essentially the following. At the time of the incident, June 5, 1988, the defendant, a Beverly police officer, and his wife, Dale Tucker, had been married for almost six years. For various reasons, their early happiness together eroded, and eventually they separated. The defendant took up with another woman, but still he was not willing to end the marriage. Both he and his wife made various efforts to resolve their marital difficulties, but they were not successful. The defendant became increasingly despondent and consulted a physician who prescribed the drug Xanax for the defendant's depression and insomnia.

On June 5, 1988, the day before their sixth wedding anniversary, the defendant telephoned his wife and asked her to come to his apartment. She agreed. They sat at the kitchen table and talked briefly; she told the defendant that she wanted a divorce. The defendant got up from the table, lunged at his wife, put his hands around her throat and choked her. She was knocked to the floor and quickly lost consciousness. When she awoke she was half way down the stairs outside the apartment. She left the building, found her father, and together they went to the Beverly police. Both eyes were black, there was dried blood on her right ear, her face was swollen, and there were finger marks on her neck. While the police were looking for the defendant--he was not in his apartment--the victim was photographed and then examined by a physician. Unable to find the defendant, the police obtained a warrant for his arrest, but the defendant had already left for New Hampshire in a car he had rented two days earlier.

The defendant's suicide attempt later the same day failed, and the following day the defendant was involved in an automobile accident in Conway, New Hampshire. The Conway police on the scene placed him under arrest and charged him with operating under the influence of a controlled substance. Spontaneously the defendant asked, "Is my wife still alive?" The arresting officer testified that the defendant cried constantly and said repeatedly that he wanted to die. The New Hampshire criminal charge was not pressed and the defendant was taken to the "County Mental Health Center" for treatment.

Denise Knight, the defendant's girlfriend, testified that in May, 1988, one month before the incident, the defendant told her of his approaching anniversary, that it would be his last, that he was going to kill his wife and then kill himself. The day before the incident the defendant drove Knight to an airport in the rented car. Knight returned from her trip on June 11, after hearing about the incident. Unable to reach the defendant by telephone, she went to the defendant's apartment, broke in, and found in a corner of his bedroom a long billy club, a brick and a rope.

The next day Knight and her mother visited the defendant in the New Hampshire hospital. The defendant told Knight exactly what had happened. He choked the victim until her eyes rolled back, blood came out of her ear, and she was unconscious. Uncertain whether she was dead, he put a pillow over her head to suffocate her. Finally he threw water on her and fled the apartment to New Hampshire. There he tried, but failed, to commit suicide, and he described the automobile accident in which he was involved. He asked Knight to get rid of the pillow he had used because there might be blood on it, and he explained the club, brick, and rope: originally he had not been sure about how he was going to kill his wife, "so he laid things out."

Following defendant's discharge from the hospital, Knight met with the defendant in his apartment. Again she asked him what happened on June 5, and again "he explained everything in detail, exactly where she was sitting, where he was sitting and what had happened, and he pointed to where she was lying." Additional evidence will be described in the course of our discussion of the claimed errors.

1. The Indictment.

The principal indictment charged the defendant with the attempt to murder Dale Tucker by strangulation. The defendant argues that strangulation is not an overt act, see Commonwealth v. Gosselin, 365 Mass. 116, 121, 309 N.E.2d 884 (1974), and therefore the indictment is defective. The term strangulation, without additional words, sufficiently describes an overt act necessary to support an indictment for attempt to murder. ¹ The indictment, therefore, adequately gave notice to the defendant of the overt act--never disputed by him--which constituted the offense-of attempt. See Commonwealth v. Burns, 8 Mass.App.Ct. 194, 197, 392 N.E.2d 865 (1979). We are referred to no authority to the contrary on this point, and we have found none.

2. Instructions to the Jury.

a. The defendant claims that the judge erroneously failed to instruct the jury that they consider the effect of the defendant's mental state on his ability to form a specific intent to murder, proof of which is required for the crime of attempt to murder. See Commonwealth v. Hebert, 373 Mass. 535, 537, 368 N.E.2d 1204 (1977); Commonwealth v. Grey, 399 Mass. 469, 474, 505 N.E.2d 171 (1987). The defendant filed a written request to that effect, but he failed to object when the instruction was not given. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). In an effort to avoid rule 24(b), the defendant says that trial counsel was assured by the judge that the requested instruction would be given.

Assuming--without so deciding--that an assurance given in advance of a charge overrides the plain and purposeful requirements of the rule, compare Commonwealth v. Dunton, 397 Mass. 101, 102 n. 2, 489 N.E.2d 1012 (1986) ("judge told defense counsel that the defendant's rights were fully protected"), with Commonwealth v. Preziosi, 399 Mass. 748, 751, 506 N.E.2d 887 (1987) (the alleged error must be brought to the attention of the judge "in specific terms in order to give the judge an opportunity to rectify the error, if any"), we find no such assurance in this record. At the charge conference the judge told the defendant's counsel that he thought his requests were "fair requests and I think I will give most of them. Not particularly in your language, but certainly I will give most of them, anyway. Just for example ... I am going to give Henson but not in your language."

The reference to "Henson " (Commonwealth v. Henson, 394 Mass. 584, 476 N.E.2d 947 [1985] ) does not help the defendant. There the court held that the defendant's intoxication could be considered in deciding whether the Commonwealth had proved the required intent. Id. at 593, 476 N.E.2d 947. The Henson charge was given by the judge here, as he said he would. The judge's "assurance" that he would give "most of" the defendant's requests suggested that he had not completed his thinking about his charge. It most certainly did not assure counsel that he would have the benefit of all his requests or, indeed, of any particular request. If the judge's response conveyed anything important, it was that counsel should be alert to notice which instructions were given and which were not. Thus, there was no compliance with rule 24(b), and we proceed to consider the issue on the familiar basis of whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Bowler, 407 Mass. 304, 305, 308, 553 N.E.2d 534 (1990). Only a showing of "grave prejudice" requires reversal. Commonwealth v. Prendergast, 385 Mass. 625, 634, 433 N.E.2d 438 (1982).

The miscarriage of justice standard which we apply here requires us to consider the weight of the evidence as well as the judge's charge to the jury. Dr. Eric Dessain, assistant director of psychology at McLean Hospital, testified for the defendant. The direct examination of Dr. Dessain was limited to the defendant's insanity defense. He said that the defendant had a "mental disease or defect," which meant that the defendant's "thoughts were off ... he had a thought disorder ... there was a subtle quality or a pervasive feeling of a thought distortion, that he wouldn't act in his best interest.... The medical jargon of a thought disorder is called a delusion, which is, I think, you know--well it is a term that is a little confusing. Delusion means that you are out of the pathway. A delusion is much more subtle than a delirium. Delirium is real bad. Delusion is when the subtle quality of the way you think and act. You say to a person: Look gentlemen, this is not quite right. It is a subtle malformation of your thinking which needs to be addressed. I should say, with all due respect, that it is not easy and not everybody can make a diagnosis." Dr. Dessain was never asked, and he did not describe, the content of the defendant's delusion nor how his delusion affected his conduct on June 5.

When asked by defense counsel whether the mental disease or defect affected the defendant's ability to appreciate the wrongfulness of his actions on June 5, Dr. Dessain testified, "Well, you know,...