Com. v. O'Brien

Decision Date06 April 1979
Citation388 N.E.2d 658,377 Mass. 772
PartiesCOMMONWEALTH v. Robert H. O'BRIEN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Alfred P. Farese, Everett, Neil P. Philbin, Cambridge, with him, for defendant.

Michael J. McHugh, Cambridge, Legal Assistant to the Dist. Atty., for the Commonwealth.

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

WILKINS, Justice.

On November 13, 1974, the defendant, a member of the bar of the Commonwealth, fatally shot his wife at the office of his attorney, Mr. Ralph Champa, in Somerville. The shooting brought to an abrupt conclusion a heated discussion concerning a separation agreement and a divorce. At trial, the defendant did not deny that he shot his wife, but he asserted that he was not criminally responsible for his act. The twenty-day trial concluded with a jury verdict that the defendant was guilty of murder in the first degree.

The defendant raises a variety of issues on appeal. We shall consider first the defendant's contentions concerning various evidentiary rulings. Next, we shall discuss the defendant's claims of prosecutorial misconduct in the Commonwealth's closing argument. Finally, we shall deal with several issues relating to the treatment of a claim of lack of criminal responsibility in this Commonwealth, and particularly with the defendant's assertion that he was entitled to entry of a verdict of not guilty by reason of insanity or, at least, to relief under G.L. c. 278, § 33E. The defendant bases these latter contentions on the ground that the Commonwealth produced no expert testimony to rebut three expert defense witnesses who testified that the defendant was not criminally responsible for shooting his wife. We conclude that there was no reversible error in the course of the trial and that the defendant is not entitled to relief under G.L. c. 278, § 33E. 1

Evidentiary Issues

There is no validity to the defendant's argument that the testimony of Mr. Champa, recounting the conversation between the defendant and his wife immediately prior to the shooting, should have been excluded as a private conversation between husband and wife. See G.L. c. 233, § 20. The discussion in the presence of a third party was not private. See Commonwealth v. Stokes, --- Mass. --- A, 374 N.E.2d 87 (1978). Mr. Champa was a third party, and the fact that he was (or had been) the defendant's attorney does not change the situation. Moreover, the discussion, involving abuse and threats, was not a private conversation of the type with which the statute is concerned. See Commonwealth v. Gillis, 358 Mass. 215, 218, 263 N.E.2d 437 (1970). Finally, the statute bars a husband and a wife from testifying as to private conversations. It does not forbid testimony by a third party concerning a conversation between a husband and a wife. See Martin v. Martin, 267 Mass. 157, 159, 166 N.E. 820 (1929).

The defendant objected to the introduction of testimony by Mr. Champa that, several minutes after the shooting, the defendant asked him, "Will you be my lawyer?" That evidence was relevant to the defendant's state of mind. The defendant argues, however, that it was inadmissible as a privileged communication between client and attorney. The attorney-client privilege may extend to preliminary communications looking toward representation even if representation is never undertaken. 8 J. Wigmore, Evidence §§ 2292, 2304 (McNaughton rev. 1961). On the other hand, the privilege runs contrary to the interest in full disclosure of relevant information and, therefore, should be narrowly construed. See Foster v. Hall, 12 Pick. 89, 97-98 (1831); Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Prichard v. United States, 181 F.2d 326, 328 (6th Cir.), aff'd per curiam, 339 U.S. 974, 70 S.Ct. 1029, 94 L.Ed. 1380 (1950); United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 358 (D.Mass.1950); Wigmore, Supra, § 2291 at 554. See generally McCormick, Evidence, § 87 at 176 (2d ed. 1972). There is no presumption of confidentiality; it must be determined in the circumstances. Wigmore, Supra, § 2311 at 600.

There are, no doubt, situations in which a person's belief that he needs legal representation could constitute a confidential communication protected by the attorney-client privilege. If the seeking of legal representation might be construed as evidence of consciousness of guilt, the mere fact of requesting legal representation might be protected. In this case, however, the fact that the defendant needed legal representation was obvious from the circumstances and hardly a confidential matter. The defendant was going to need immediate representation; his arrest was imminent. In the circumstances, we do not view the defendant's request of Mr. Champa to have been intended to be confidential. Communications between attorney and client that are expected to be disclosed to others are not privileged. See Commonwealth v. Michel, 367 Mass. 454, 460, 327 N.E.2d 720 (1975); Peters v. Wallach, 366 Mass. 622, 627-628, 321 N.E.2d 806 (1975).

The defendant's voluntary statement to a police officer made shortly after the shooting was properly admitted. As the officer approached him, the defendant said, "No problem, no problem. I'm sorry. I know I'm under arrest." The defendant was in custody, but there was no custodial interrogation requiring Miranda warnings. As an unsolicited comment, the statement was admissible. See Commonwealth v. Goulet, --- Mass. ---, --- B, 372 N.E.2d 1288 (1978); Commonwealth v. Glavin, 354 Mass. 69, 72-73, 235 N.E.2d 547 (1968).

On two occasions, the prosecutor asked improper, leading questions concerning the defendant's experience in the criminal law. On the fifth day of trial, he asked one of the psychiatrists called by the defendant whether he had taken into account "that the defendant was highly familiar with criminal law." The judge sustained an objection and promptly gave an instruction that there was no evidence, "at least to this point in the trial," that the defendant was a criminal lawyer or that he was experienced in criminal law. A mistrial was not required. The judge's instruction was appropriate and adequate. See Commonwealth v. Eagan, 357 Mass. 585, 589, 259 N.E.2d 548 (1970). On the twelfth day of trial, on redirect examination, the prosecutor asked Mr. Champa if the defendant had told him that he had worked for his then defense counsel. The question immediately followed the sustaining of an objection to another question on what the defendant had told Mr. Champa about where the defendant had worked. The defendant objected to the second question and moved for a mistrial, which was denied. The judge rightly criticized the prosecutor at the side bar but, without objection from the defendant, he concluded that, to avoid emphasizing the subject, no instruction should be given.

The prosecutor was entitled to establish, if he could, that the defendant had experience in the criminal law and that he had contrived his insanity defense. The major area of contention at the trial was whether the defendant was criminally responsible.

As the trial developed, evidence of the defendant's competence in the criminal law was introduced. On the sixteenth day of trial, an assistant clerk in the criminal division of the Superior Court, Middlesex County, called by the defendant, testified that before November 13, 1974, he had seen the defendant in court once a week and that the defendant was a very competent attorney. On cross-examination, the clerk testified that the defendant was competent in criminal matters. Although the prosecutor was improperly aggressive in his leading questions concerning the defendant's experience in the criminal law, we see no basis for reversing the conviction on this ground. Any prejudice was insubstantial. See Commonwealth v. Stewart, --- Mass. ---, --- - --- C, 377 N.E.2d 693 (1978).

The Prosecutor's Closing Argument

The defendant objects to the refusal of the judge to declare a mistrial because, in arguing to the jury, the prosecutor twice referred to Dr. Mezer, one of the defense witnesses, as a "hired gun." The first time, the prosecutor denied the term by stating, "I submit to you that is just what he was, hired by the defense, paid by the defense." In the course of the prosecutor's argument, the defendant raised several objections at the side bar and moved for a mistrial. Among those objections was the prosecutor's reference to Dr. Mezer as a "hired gun." The motion for a mistrial was denied. The judge asked at that point for any suggestions for specific instructions to the jury. Defense counsel made no suggestion for a curative instruction on this subject. In his charge, the judge instructed the jury in the usual manner, that statements of counsel were not to be considered as evidence.

We regard the reference to a "hired gun" as inappropriate argument. See Commonwealth v. Shelley, --- Mass. ---, --- - --- D,373 N.E.2d 951 (1978), where a similar but considerably more inflammatory and unfair argument was held to call for a new trial. However, the prosecutor's definition of the term as he used it is a mitigating circumstance. The fact that Dr. Mezer was retained by the defense was an appropriate subject of argument to the jury. See Commonwealth v. McColl, --- Mass. ---, --- E, 376 N.E.2d 562 (1978). A curative instruction would have put the matter in proper perspective, but the defendant who may not have wished to have the point emphasized, made no request for such an instruction. In these circumstances, there is no basis for concluding that the judge erroneously denied the motion for a mistrial.

We consider here another contention directed to the prosecutor's closing argument, although it is not the subject of any exception or assignment of error. In the course of that closing argument, the prosecutor speculated about what conversation may have taken place...

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