Com. v. O'Connor

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before HALE; HALE
• Citation: 7 Mass.App.Ct. 314,387 N.E.2d 190
• Decision Date: 29 March 1979
• Parties: COMMONWEALTH v. Joseph F. O'CONNOR.

Page 190

387 N.E.2d 190 7 Mass.App.Ct. 314 COMMONWEALTH
v.
Joseph F. O'CONNOR. Appeals Court of Massachusetts, Middlesex. Argued Feb. 9, 1979.
Decided March 29, 1979.

Page 192

[7 Mass.App.Ct. 315] James F. Sullivan, Boston (Allen Bress, Boston, with him), for defendant.

Robert M. Raciti, Asst. Dist. Atty., Cambridge, for the Commonwealth.

Before [7 Mass.App.Ct. 314] HALE, C. J., and GRANT and PERRETTA, JJ.

[7 Mass.App.Ct. 315] HALE, Chief Justice.

The defendant appeals (G.L. c. 278, §§ 33A-33G) from his conviction on so much of an indictment as charged two counts of sexual intercourse with a child under sixteen years of age (G.L. c. 265, § 23, as appearing in St.1974, c. 474, § 3). ¹ He assigns numerous errors. We summarize the facts consistent with the jury's verdict and which could have been found by them.

The defendant and one Colihan were driving in the defendant's car on October 7, 1976, when they noticed the victim walking along the side of the road. The two pulled up next to the victim, then fourteen years old, and she entered the front seat of the car in response to their invitation. As they drove along, the three smoked marijuana and engaged in idle conversation. After several requests by Colihan, the victim climbed over with him [7 Mass.App.Ct. 316] into the backseat while the defendant continued to drive. Shortly thereafter the defendant drove onto a dirt road and stopped in a wooded area where the victim had vaginal intercourse with Colihan and performed fellatio upon the defendant. ² The defendant and Colihan then drove the victim back to town, where they dropped her off at a gas station.

1. In response to the judge's pretrial order, the defendant disclosed his intention to interpose the defense of insanity and his intention to rely on expert witnesses to establish that defense. He also stated that the expert witnesses would rely in part on statements made by the defendant.

The judge, pursuant to G.L. c. 123, § 15, then ordered the defendant to submit to a psychiatric examination to be conducted by Dr. Weiss, a court-appointed physician. The order strictly limited the use of the results of the examination along the lines of G.L. c. 233, § 23B, and within the guidelines of Blaisdell v. Commonwealth, --- Mass. ---, --- - --- ^A, 364 N.E.2d 191 (1977).

The defendant's expert, Dr. Zigelbaum, testified that the defendant suffered from a delusional form of paranoid schizophrenia and as a result could neither appreciate the wrongfulness of his act nor conform his behavior to the requirements of the law. He referred in his testimony to certain

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statements made to him by the defendant. The Commonwealth's expert, Dr. Weiss, testified in rebuttal that the defendant was not suffering from mental disease on the date of the crime. He, too, referred to statements made to him by the defendant.

The judge did not violate the defendant's constitutional privilege against compulsory self incrimination by ordering the defendant to submit to a psychiatric examination. [7 Mass.App.Ct. 317] Baisdell v. Commonwealth, --- Mass. at --- - --- ^B, 364 N.E.2d 191. Nor did he violate this privilege in admitting testimony by Dr. Weiss as to his opinion based on statements made to him by the defendant during the course of that examination. Blaisdell v. Commonwealth, --- Mass. at --- ^C, 364 N.E.2d 191. When the defendant elicited testimony from Dr. Zigelbaum that was based in part on the defendant's statements to him, he waived his privilege against self incrimination for such purposes and made it permissible for the Commonwealth to introduce in evidence a psychiatrist's testimony also based on the defendant's statements. Blaisdell v. Commonwealth, --- Mass. at --- - --- ^D, 364 N.E.2d 191. We decline to accept the defendant's argument that Blaisdell must be reexamined in the light of Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977), because the cases are distinguishable.

We must consider the limitations placed on such testimony by G.L. c. 233, § 23B. Under that statute no statement made by a defendant to a psychiatrist appointed by the court pursuant to G.L. c. 123, § 15, shall be admissible against him on any issue other than his mental condition. Such statements may be admissible on the issue of mental condition but not if they amount to confessions of guilt or admissions of inculpatory behavior related to the crime charged. See Blaisdell v. Commonwealth, --- Mass. at --- ^E, 364 N.E.2d 191. The statements of the defendant related in Dr. Weiss's testimony ³ should have been excluded under [7 Mass.App.Ct. 318] G.L. c. 233, § 23B, but it does not follow that their admission requires reversal.

The defendant, through the testimony of Dr. Zigelbaum, introduced evidence of statements that he had made to Dr. Zigelbaum that were to the same effect as those later testified to by Dr. Weiss. ⁴

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Moreover, the defendant took the stand himself and admitted to participation in the acts which constituted statutory rape. Any inference of the defendant's guilt of statutory rape that could be derived from the defendant's statements to which Dr. Weiss testified on rebuttal was insignificant in light of the evidence introduced on that issue by the defendant himself, and any error here was harmless. See Commonwealth v. Hanger, --- Mass. ---, --- ^F, 386 N.E.2d 1262 (1979). Compare Commonwealth v. McNeil, 328 Mass. 436, 440, 104 N.E.2d 153 [7 Mass.App.Ct. 319] (1952); Commonwealth v. Chase, 350 Mass. 738, 742, 217 N.E.2d 195, cert. denied, 385 U.S. 906, 87 S.Ct. 222, 17 L.Ed.2d 137 (1966); Commonwealth v. Marsh, 354 Mass. 713, 718-719, 242 N.E.2d 545 (1968); Subilosky v. Commonwealth, 358 Mass. 390, 396-397, 265 N.E.2d 80 (1970); Commonwealth v. Pickles, 364 Mass. 395, 399, 305 N.E.2d 107 (1973); Commonwealth v. Morgan, 369 Mass. 332, 341-342, 339 N.E.2d 723 (1975). ⁵

2. (a) The defendant next claims error in the denial of his motion for a bifurcated trial on the issues of guilt and mental capacity. There is no constitutional right to a bifurcated trial. Commonwealth v. Bumpus, 362 Mass. 672, 681, 290 N.E.2d 167 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973), aff'd on rehearing, 365 Mass. 66, 309 N.E.2d 491 (1974). The decision to grant or deny a bifurcated trial is within the sound discretion of the judge, and there was no abuse of discretion in the denial of the motion here. See Commonwealth v. Haas, --- Mass. ---, --- - --- ^G, 369 N.E.2d 692 (1977).

( b) In the course of his argument on the above point the defendant slips in a contention that the judge's exclusion of testimony by Dr. Zigelbaum regarding statements made to him by the defendant's aunt was error. A statement that would otherwise be inadmissible as hearsay is not made admissible simply because an expert witness claims that it formed...