Com. v. Chubbuck

• Decision Date: 16 December 1981
• Citation: 429 N.E.2d 1002,384 Mass. 746
• Parties: COMMONWEALTH v. Dennis S. CHUBBUCK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1002

429 N.E.2d 1002

384 Mass. 746

COMMONWEALTH v. Dennis S. CHUBBUCK.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1981.

Decided Dec. 16, 1981.

Wade M. Welch, Boston, for defendant.

William J. Doyle, Asst. Dist. Atty. (Kevin Connelly, Asst. Dist. Atty. with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and NOLAN, JJ.

NOLAN, Justice.

The defendant, Dennis Chubbuck, was convicted of rape and of murder in the first degree on the grounds of extreme atrocity and felony murder. He was sentenced to concurrent life terms. He appeals from his convictions and from the denial of his motion for a new trial. Chubbuck argues error concerning (1) the failure of the trial judge to order further psychiatric examination or to hold a competency hearing following an outburst by the defendant during trial; (2) the failure of the judge to declare a mistrial because of a statement made by a witness during testimony; (3) the form of the verdict slip submitted to the jury; and (4) errors in the judge's charge concerning felony murder and extreme atrocity or cruelty. The defendant also claims that we should exercise our power under G.L. c. 278, § 33E, and either reduce the verdict to a lesser degree of guilt or order a new trial. We affirm the convictions and conclude that there is no reason to exercise our powers under G. L. c. 278, § 33E.

We summarize the evidence presented at trial. The defendant and Denise Daly, the victim, first met in August of 1978. At that time Denise Daly was fifteen years old and the defendant was twenty. Prior to October 21, 1978, they had been seen together on a number of occasions. On at least one occasion they had gone with other teenagers to a wooded area behind the Altenheim, a nursing home in West Roxbury. This was a common gathering spot for area teenagers.

On Friday evening, October 20, 1978, the defendant and Denise Daly were seen together with a group of teenagers. On Saturday, October 21, 1978, the defendant and Denise Daly were seen together about 1:30 P.M. and again around 6 P.M. At approximately 6:30 P.M. that evening Denise Daly telephoned a friend and stated that she and the defendant were going to the Altenheim. She asked the friend to meet them there but the friend declined. At approximately 7 P.M. that evening a resident of the Altenheim heard two voices (a male and a female) outside the Altenheim. The resident saw one person (the female) but did not see the other. The two were walking toward the woods in back of the nursing home.

At approximately 1 A.M. the next morning the defendant called his sister, Ann Leary, and told her that Denise Daly was missing. The defendant asked his sister to call Mrs. Daly to see if Denise was home. Mrs. Leary then telephoned Mrs. Daly. At about 2:30 A.M. the defendant again telephoned his sister and asked her whether Denise had returned home. His sister told him, "No." One-half hour later the defendant called his sister for the third time and told her that he was at the airport. The defendant also told his sister that he had a "problem" because Denise was "missing" and "naturally, they are going to come after me."

At approximately 1 P.M. on October 22, 1978, Denise Daly's body was discovered in the woods behind the Altenheim. The victim was naked from the waist down. The belt buckle of her slacks was broken off and the top clasp at the waistband of her slacks was missing. Her clothes were bloodstained. Two large rocks, one weighing ninety-five pounds and the other fifty-seven pounds, lay on the ground nearby. The rocks were bloodstained and a clump of human hair was discovered on the larger rock.

Dr. George Curtis, medical examiner for Suffolk County, conducted the autopsy. Dr. Curtis testified that the cause of death was multiple blows to the head, a crushed skull, lacerations of the brain and aspiration of blood. He concluded that these injuries were consistent with a blow resulting from a ninety-five pound rock being dropped on the victim's head while she lay, face up, on the ground. Dr. Curtis also found two lacerations on the lips of the victim consistent with being struck by a fist and injuries on the right side of the neck consistent with severe pressure being applied by fingernails. Examination of the victim's vagina disclosed blood in the vagina and abrasions. The victim's hymen appeared to have been recently perforated and a vaginal smear indicated the presence of sperm.

Between October 21, 1978, and January 19, 1979, the defendant made numerous telephone calls to his sister Ann Leary, his brother Ralph Chubbuck, and a friend, each of whom testified at trial. These calls were made from various parts of the country. Mrs. Leary testified that during a telephone call on December 24, 1978, the defendant told her that he and the victim had been drinking on the day of October 21, 1978, and had gone to the woods behind the Altenheim. He further stated that the victim had agreed to have sex with him but after they had started, she began to scream. He picked up a five pound rock and started hitting her with it. He then picked up a huge rock and dropped it on her head. He then picked up another rock and did the same thing. On January 18, 1979, the defendant called his brother, Ralph Chubbuck, and told him a similar story. On January 19, 1979, the defendant again called his sister and again told her how he had killed Denise Daly. On January 19, 1979, the defendant was arrested by an FBI agent in Dallas, Texas.

1. The defendant's first contention is that the trial judge erred in refusing to grant a further psychiatric examination of the defendant or to conduct a hearing as to his competency before removing the defendant from the courtroom.

Some background information is necessary. Prior to trial, the judge acted on motions of the Commonwealth and the defendant and ordered a competency examination by Dr. Nicholas Rizzo, director of the Suffolk Superior Court Psychiatric Clinic. He further ordered the appointment of a psychiatrist, Dr. Leonard Friedman, to examine the defendant as to criminal responsibility and competency to stand trial. Dr. Rizzo and clinical social worker Gregory Tragellis examined the defendant and filed a competency report on April 11, 1979. In the report they concluded: "There is no evidence of any mental illness. The subject is aware of charges against him, the criminal process, and his responses are coherent and appropriate. He is considered competent to stand trial." Dr. Leonard Friedman, a psychiatrist, also examined the defendant and filed his report on July 19, 1979. In it, he recited the defendant's history of drug abuse as well as his psychiatric and medical history and concluded that the defendant was competent to stand trial. He also concluded that the defendant "was probably not criminally insane at the time of the murder." On August 9, 1979, the judge allowed the defendant's motion for an electroencephalogram (EEG) but denied the defendant's motion for appointment of another psychiatrist. The first examination revealed an abnormal EEG. A second court-ordered examination resulted in a normal EEG. On September 13, 1979, the judge allowed the defendant's motion for a CAT scan and this scan result was normal. On September 13, 1979, and again on September 17, 1979, the defendant renewed his motion for the appointment of a second psychiatrist. The judge denied the motions.

The trial began on September 18, 1979. On the sixth day of trial, September 24, 1979, the Commonwealth called the defendant's brother, Ralph Chubbuck, to the stand. At this time the defendant stood up in the dock and gestured toward the witness, saying, "You ain't my ... brother." A recess was called. Defense counsel met with the defendant and reported to the court that the defendant seemed to be "completely disoriented." Defense counsel moved for a competency examination of the defendant. The judge allowed Dr. Rizzo and Mr. Tragellis, who had previously filed a competency report on the defendant, to examine the defendant. Dr. Rizzo and Mr. Tragellis reported to the judge that the defendant was not able to cooperate and assist counsel at that time and recommended that twenty milligrams of Librium, a tranquilizing drug, be administered three times daily to aid the defendant in regaining his composure. The judge ordered that the medication be administered and recessed the trial for the day. The judge instructed the jury to disregard the defendant's actions. The next morning Dr. Rizzo examined the defendant and reported that the defendant was competent to stand trial. The judge stated to defense counsel that any further outburst would result in the defendant's removal from the courtroom. The judge denied the defendant's motions for mistrial and for further psychiatric examination.

The trial resumed and Ralph Chubbuck was recalled to the stand. After a few questions, defense counsel approached the bench and informed the judge that the defendant had asked counsel to "(g)et me out of here." Counsel indicated that he felt the defendant was going to lose control again. The judge told counsel to advise the defendant that, if he could not control himself, the judge would put the defendant in another room with loudspeaker and telephone communication. The defendant, having been so advised, told counsel, "I don't care, get me out of here."

The judge called a recess and made arrangements to continue the trial in another courtroom with the defendant in loudspeaker and telephone communication. The judge instructed the jury to draw no inference from the defendant's absence. This means of communication continued into the next and final day of trial.

The defendant recognizes that the constitutional right of a defendant to be present at his trial can be forfeited provided he has been appropriately warned and continues his disruptive behavior despite such warning. Illinois v. Allen, 397 U.S. 337, 343,...