Com. v. Cullen

• Decision Date: 19 June 1985
• Citation: 479 N.E.2d 179,395 Mass. 225
• Parties: COMMONWEALTH v. Francis E. CULLEN, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 179

479 N.E.2d 179

395 Mass. 225

COMMONWEALTH v. Francis E. CULLEN, Jr.

Supreme Judicial Court of Massachusetts Norfolk.

Argued April 2, 1985.

Decided June 19, 1985.

Maureen S. Duggan, Quincy, for defendant.

Charles J. Hely, Asst. Dist. Atty. (David C. Phalen, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

After a jury-waived trial in which the sole issue was the defendant's criminal responsibility, the defendant, Francis E. Cullen, Jr., was convicted of assault with intent to murder (two counts), assault and battery by means of a dangerous weapon (two counts), and unlawfully carrying a firearm. The defendant appealed his convictions claiming that although "there may be some evidence supporting a conclusion of sanity ... [t]he Commonwealth did not produce sufficient evidence ... from which a reasonable trier of fact could infer the sanity of the Defendant beyond a reasonable doubt." A divided panel of the Appeals Court affirmed the judgments. Commonwealth v. Cullen, 18 Mass.App. 644, 645, 469 N.E.2d 1269 (1984). We granted the defendant's application for further appellate review. We affirm.

We summarize the evidence. In the early morning of February 5, 1983, the defendant Cullen threw a rock at a marked police cruiser driving on Central Avenue in Milton. The police officer in the cruiser, Paul Nolan, pulled over and approached the defendant, who was standing in the driveway of his home, to inquire about the incident. Cullen did not respond to the inquiry. As Officer Nolan approached and repeated the question, Cullen drew an unlicensed handgun from his waist and fired three shots, two of which hit Officer Nolan. The defendant disappeared behind his house momentarily, only to return and fire upon Officer Charles Paris, who had arrived on the scene and was kneeling beside Officer Nolan, radioing for help. One bullet struck Officer Paris in the back, and another shot damaged the portable radio on Officer Nolan's hip. Officer Paris turned and fired in the direction of Cullen, who then fled.

Additional police arrived and soon after receiving a radio report of an attempted break-in at the residence of Cullen's former lawyer, a few houses from Cullen's home, one officer apprehended the defendant in the rear of that residence. Officer Michael Breen, with service revolver drawn, then ordered, "Frankie, give it up." Cullen turned his back to Officer Breen and placed his hands on the side of the house, but as Officer Breen approached, began to back away. Believing him about to flee, Officer Breen grabbed Cullen from behind, restraining him. Both men fell to the ground. After Officer Paris handcuffed Cullen's wrists behind his back, he searched for a handgun. Cullen "began to thrash about from left to right," which gyrations soon revealed to the police a handgun under his back approximately at his beltline. Cullen had reloaded his gun before being apprehended. Prior to the incident, Cullen had been drinking with a friend for six or more hours.

Cullen did not testify at trial, nor did he substantially contest these facts. His defense consisted of the oral testimony of one and the written report of a second psychiatric expert as to his lack of criminal responsibility for the two shootings. The expert testimony and report revealed that Cullen told the doctors that the Milton police were "out to get him," that they, and other police departments from eastern Canada to New York City, had kept him under twenty-four hour surveillance for more than seven years. He asserted that his phone was bugged. The police played "mind games" with him that "let him kill people," and caused "pins and needles" in various parts of his body. The police interfered with his love life, which Cullen said potentially included five hundred women whom he knew to be attracted to him, by telling women that he was a sex pervert. Cullen told the psychiatrist that he had purchased the handgun, which he had used in the assaults, "on the street," had thrown a rock at the police cruiser, and had shot Officers Nolan and Paris in self defense to protect himself from the police. He told the psychiatrist that, while it would have been easy to kill the wounded Officer Nolan, he refrained from doing so because he had intended only to "put him out of service." Cullen insisted that he had fled to his lawyer's house only because "he was sure that the police would not kill him in front of ... his attorney."

Both psychiatrists concluded, on the basis of slightly different diagnoses, that Cullen lacked criminal responsibility under the test elaborated in Commonwealth v. McHoul, 352 Mass. 544, 546-547, 226 N.E.2d 556 (1967), i.e., that, because of a mental disease or defect, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Dr. Annaliese Pontius, who had interviewed the defendant once three and a half months after the shootings, diagnosed Cullen as suffering from "schizophrenia, paranoid type" and "erotomania." When during the trial she received the results of an electroencephalogram (EEG test) revealing minimal physical abnormalities, Dr. Pontius changed her diagnosis to include the possibility of an organic type of psychosis in addition to a functional type such as schizophrenia. According to a written report by Dr. Martin Kelly, who had interviewed the defendant five months after the incident, Cullen was operating under a paranoid delusional system.

The issue is whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found Cullen to be criminally responsible beyond a reasonable doubt. Commonwealth v. Shelley, 381 Mass. 340, 346, 409 N.E.2d 732 (1980). Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). See Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979). "[T]he evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [sanity] beyond a reasonable doubt.' " Commonwealth v. Latimore, supra 378 Mass. at 677, 393 N.E.2d 370, quoting Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928). Because the crimes for which the defendant was convicted were not capital, the broad standard of review under G.L. c. 278, § 33E (1984 ed.), whether the finding of criminal responsibility was against the weight of the evidence, is unavailable. ¹ See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979); Commonwealth v. Cook, 380 Mass. 314, 320-321, 403 N.E.2d 363 (1980). We must determine only whether the convictions should be reversed because the evidence on the defendant's sanity is insufficient as a matter of law.

The defendant does not argue that the Commonwealth had not presented sufficient evidence of his criminal responsibility by the close of its case-in-chief. Rather, he claims that the Commonwealth's proof of the issue deteriorated between the time the Commonwealth rested and the close of all the evidence, and therefore the judge should have made a required finding of not guilty by insanity at the close of all the evidence. See Commonwealth v. Lunde, 390 Mass. 42, 46-47, 453 N.E.2d 446 (1983); Commonwealth v. Amazeen, 375 Mass. 73, 80 n. 5, 375 N.E.2d 693 (1978); Commonwealth v. Kelley, 370 Mass. 147, 150 & n. 1, 346 N.E.2d 368 (1976).

Cullen asserts that the evidence produced by the Commonwealth did not meet its burden of proving his sanity because he introduced evidence from two psychiatric experts as to his lack of criminal responsibility for the shootings under the McHoul test. See Commonwealth v. Kostka, 370 Mass. 516, 526, 350 N.E.2d 444 (1976). He argues that, by failing to produce either lay or expert testimony as to his sanity, the Commonwealth did not prove his sanity beyond a reasonable doubt. See id. at 540, 350 N.E.2d 444 (Hennessey, C.J., dissenting in part). See also Commonwealth v. Lunde, supra 390 Mass. at 48-49, 453 N.E.2d 446; Commonwealth v. Werner, 16 Mass.App. 686, 689-690, 454 N.E.2d 919 (1983). It was within the discretion of the fact finder to place little or no weight on the evidence from the two psychiatrists in the instant case. Commonwealth v. Lunde, supra 390 Mass. at 47, 453 N.E.2d 446, and cases cited. The judge could have disbelieved the psychiatric and defense evidence in its entirety. "The law 'does not give the opinions of experts ... the benefit of conclusiveness, even if there are no contrary opinions introduced at trial.' " Commonwealth v. Lunde, supra at 47, 453 N.E.2d 446, quoting Commonwealth v. Smith, 357 Mass. 168, 178, 258 N.E.2d 13 (1970), and cases cited.

Further, in this case, there is no long history of mental illness or hospitalizations. See Commonwealth v. Cole, supra 380 Mass. at 36, 402 N.E.2d 55. Commonwealth v. Lunde, supra 390 Mass. at 46, 453 N.E.2d 446; Commonwealth v. Gould, supra 380 Mass. at 675, 405 N.E.2d 927; Commonwealth v. Werner, supra 16 Mass.App. at 688, 454 N.E.2d 919. Thus, the judge could view...