Com. v. DeMinico

• Decision Date: 08 August 1990
• Citation: 408 Mass. 230,557 N.E.2d 744
• Parties: COMMONWEALTH v. Joseph C. DeMINICO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 744

557 N.E.2d 744

408 Mass. 230

COMMONWEALTH v. Joseph C. DeMINICO.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued May 7, 1990.

Decided Aug. 8, 1990.

Charles W. Rankin, Boston, for defendant.

Mary O'Sullivan Smith, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The defendant, Joseph C. DeMinico, was convicted by a jury of murder in the first degree and armed robbery. He appeals, alleging error in the judge's refusal to declare a mistrial on the fifth day of trial, because the defendant allegedly then was incompetent to stand trial. He also alleges that his right to testify was violated because his trial counsel did not permit him to testify in his own defense in spite of the defendant's desire to do so. The defendant also requests that we exercise our power under G.L. c. 278, § 33E (1988 ed.), and order a new trial or reduce the verdict to a lesser degree of guilt. After oral argument, we remanded the case to the trial judge for an explicit determination on the record as to whether the defendant was competent on the fifth day of trial and for an evidentiary hearing and findings of fact and a ruling of law on the defendant's allegation that his desire to testify on his own behalf was not honored. On remand, the trial judge determined that the defendant was competent on the fifth day of trial. Following an evidentiary hearing, he concluded that the defendant's right to testify was not violated. The defendant argues that the judge's findings on remand are clearly erroneous. We affirm the convictions. We also conclude that this is not a case in which we should exercise of our power under G.L. c. 278, § 33E, in favor of the defendant. ¹

We summarize the evidence on which the jury could have based their verdicts. In March, 1985, while recuperating from surgery in which he received a colostomy bag, the defendant lived with his mother, Maria DeMinico. The defendant's brother and nephew also lived in the mother's house. On March 27, 1985, the defendant and his mother quarrelled over one hundred dollars that he previously had given to her and that she had refused to return. Later that day, the defendant decided to kill his mother because she would not return the money and because he did not want to live with her. He wrote a note saying that his mother did not want him staying at the house and that he did not want to live or stay at the house "[o]r live anymore." He put the note in his pocket.

On the morning of March 28, 1985, the defendant's nephew heard the defendant and his mother argue again about the money. The defendant waited until his brother and nephew left for work. The defendant went to the kitchen where his mother was ironing. He reached into his back pocket and retrieved a clothing line rope which he used to walk his dog. The defendant tied the rope around his hand, walked up behind his mother, placed the rope around her neck and began strangling her. As she struggled to remove the rope, she fell to the floor in a sitting position. The defendant placed his knee against her back and tightened the rope until she fell unconscious. The defendant taped his mother's mouth, removed a knife from the kitchen drawer, and stabbed her once in the neck and once in the chest. Leaving the knife in the chest, the defendant dragged the body to a hallway, placed the note written the previous day on the body, and covered it with a sheet. The defendant ransacked the house, taking his brother's handgun and jacket, his mother's jewelry, his nephew's jewelry, and $200. The defendant then telephoned his sister and told her that he had killed their mother.

The defendant took a bus to Boston, pawned some of the jewelry, and took an afternoon train to New York City, where he lived for several days in Grand Central Station. On April 3, 1985, in order "to have peace of mind," the defendant surrendered himself to the New York City metropolitan police. After receiving several full recitations of his Miranda rights, the defendant gave a statement detailing the murder of his mother. Despite warnings by his New York attorney and both New York and Massachusetts police officers, the defendant voluntarily made inculpatory statements to Massachusetts police officers accompanying the defendant during the plane ride back to Boston. The Massachusetts officers did not question the defendant about the case.

1. The defendant's competency to stand trial. After arraignment, the defendant was committed to Bridgewater State Hospital (Bridgewater) for observation pursuant to G.L. c. 123, § 15(b ) (1988 ed.). In July, 1985, Dr. Philip Luber, a psychologist at Bridgewater, reported to the trial judge that the defendant was not competent to stand trial. In February, 1986, Dr. Luber filed a second report recommending that the defendant be found competent to stand trial. On June 9, 1986, the judge declared the defendant competent to stand trial. After two days of pretrial motions, the trial commenced on December 10, 1986. On December 15, 1986, when all of the evidence had been introduced and both sides had rested, the defendant's trial counsel ² argued a motion "for an examination to determine whether the [d]efendant is at present competent to stand trial." On the morning of December 16, 1986, Dr. John Daignault, a court-appointed psychologist, examined the defendant. He concluded that the defendant was experiencing a psychotic episode and, in response to a question from the judge, stated that any possibility that the defendant was attempting to manipulate the court was secondary to the psychosis. He recommended that the defendant be found incompetent. The defendant moved for a mistrial. On December 17, 1986, after a full competency hearing, the judge denied the defendant's motion and ruled that the trial would continue.

In written findings dated December 17, 1986, the judge found that, since October 1, 1986, the defendant had refused to take medication prescribed by medical personnel at Bridgewater and stated "that such refusal ha[d] affected his competency to stand trial.... I hold that the defendant has waived his right to be tried while competent. However, I further rule that the defendant was competent during that period of time which was necessary to aid and assist his lawyer in the preparation and trial of his case" (citation omitted). The defendant appealed from his subsequent convictions, claiming it was error to continue the trial.

On remand, the judge made the following findings: ³ "I find that the defendant was competent on December 16, 1986. As noted in my findings dated December 17, 1986, the defendant was an active participant throughout the trial. He frequently conferred with his lawyer both orally and in writing, asked intelligent questions of the Court and offered relevant and responsive answers to questions put to him by the Court. He frequently interjected his thoughts throughout the trial which were relevant and responsive to the testimony being received and which indicated an intelligent understanding of what was taking place in the courtroom. Several times, the defendant corrected, or attempted to correct, a factual discrepancy in a witness's testimony. Many of the defendant's astute observations occurred on December 15, 1986, the fourth and final day of testimony. The defendant interjected relevant, perceptive, and responsive observations throughout the argument and charge portion of the trial as well, on December 17, 1986. Throughout the trial, he showed an appreciation of the roles of the court personnel. While the defendant's conduct was disruptive throughout the trial, his behavior was not violent, bizarre or irrational."

The judge stated that "[c]ounsel for [the] [d]efendant concedes that [the] [d]efendant was competent up through December 15, 1986. I observed no change in [the] [d]efendant's demeanor throughout the trial. Both prior to Dr. Daignault's December 16, 1986 examination of [the] [d]efendant, and after that examination, the defendant continued to exhibit a keen understanding of the proceedings against him. Throughout the trial, the defendant took an active role in his own defense. On December 15, 1986, both sides had rested and defense counsel indicated he was prepared to give his final argument."

The judge concluded, saying, "[b]ased on my observations at trial, I concur with Dr. Daignault's observation that the defendant was prone to manipulative conduct. While the defendant's competency may have been failing on December 16, 1986, I find this was a direct result of [the] defendant's refusal to take the prescribed medications. Any deterioration in competency did not reach the level of rendering the defendant incompetent on December 16, 1986."

The defendant argues that "[t]his finding cannot be supported by the record." He claims that the record "furnishes no basis for disbelieving expert testimony of Dr. Daignault ... [who] was unequivocal in testifying that the defendant was incompetent, that he was in the midst of a psychotic episode, and that the possibility of the defendant's malingering was secondary to his psychotic episode." ⁴ The defendant concludes that "the lower court violated the defendant's constitutional rights by permitting the trial to go forward after the examining psychologist had found him incompetent." We do not agree.

Dr. Daignault's conclusion that the defendant was incompetent did not mandate a finding of incompetency. "Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion ... by an expert on either side of ... [an] issue as conclusive. That is no less so in a case where one party has not secured an expert to express a contrary opinion. The law should not, and does not, give the opinions of experts on either side of ... [an] issue the benefit of conclusiveness, even if there are no contrary opinions introduced at the...