Com. v. DeSalvo
| Decision Date | 04 January 1968 |
| Parties | COMMONWEALTH v. Albert H. DeSALVO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. Lee Bailey, Boston, for defendant.
Donald L. Conn, Asst. Atty. Gen., (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.
Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.
The defendant was tried and convicted in the Superior Court upon eight indictments charging assault and battery by means of a dangerous weapon, commission of unnatural acts, breaking and entering, larceny and armed robbery, assault and battery and indecent assault battery. Among other witnesses four adult women, victims of the defendant's conduct, testified. His defence was insanity. Two experts testified for the defense; three for the Commonwealth. The defendant did not testify. The history taken by all the experts showed the defendant to be subject to abnormal, very intense, and frequently recurring sexual urges. The experts agreed that he was mentally ill and dangerous but differed as to whether he acted under impulses which he could not control. General Laws c. 278, §§ 33A to 33E, were made applicable to the trial and the defendant has appealed.
The charge so stated the test of criminal responsibility formulated in the Model Penal Code ( along with the words of the classic Rogers test (Commonwealth v. Rogers, 7 Metc. 500, 501--502), as to make manifest to the jury, what we later held in COMMONWEALTH V. MCHOUL, MASS., 226 N.E.2D 556,A that the Code test is 'an evolutionary restatement of our rule rather than a substantively new rule.' The judge instructed that the defendant, to be held responsible under the stated cognitive test (knowing right from wrong) 'must have substantial capacity to appreciate the wrongfulness of his act,' and to be held responsible under the stated test of irresistible impulse he 'must have substantial capacity to control his conduct so as to be able to abstain from doing the unlawful act.'
The defendant contends that even though, as we have indicated the adoption of the Code test does not mean that it was error to conduct a prior trial under the Rogers case language, nevertheless it was prejudicially confusing to refer to both tests. There is nothing in this. It was plainly helpful to the defendant's case to qualify the Rogers case test in what the defendant describes as 'the more workable and desirable language' of the Code. 1
The defendant's first witness, although testifying before the judge had ruled that the language of the Code test might be used in the examination of experts, in effect testified that the defendant did not meet the Rogers test because he lacked substantial capacity to appreciate and to control his conduct. There was therefore no harmful error in excluding a question to him in the express terms of the Code, even though the question was allowed as to later witnesses.
The defendant excepted to the exclusion of certain testimony offered for the purpose of showing that he had committed sexual attacks on and had murdered a number of women in the period from June, 1962, to January, 1964. The judge had permitted each expert to testify to the history of the defendant as it was derived from his interviews with the defendant and certain records. Thus the jury heard from the defendant's two experts their account of his statements about those crimes but under appropriate instructions that this was not proof that the defendant had committed them. Commonwealth v. Belenski, 276 Mass. 35, 47, 176 N.E. 501. There was also reference to the crimes in the testimony of Dr. Samuel Tartakoff, one of the Commonwealth's experts. He testified that he had heard from the defendant his account of the 'macabre' events of 'most serious consequence' in the period from June, 1962, to January, 1964. He accepted the account as historical information. His opinion was that the defendant
The defendant excepted to the refusal of the trial judge to allow a former assistant attorney general to testify to his interviews with the defendant. The offer of proof was that the interviews were in the presence of the defendant's guardian and were for the purpose of advising certain psychiatrists assigned by the Commonwealth whether the defendant was subject to delusions or was feigning or was telling the truth as to the murders. The other part of the defendant's proposed demonstration was shown in the offer to have a Boston police officer Mass. 712, 714--715, 205 N.E.2d 726 general and his resulting verification of the truth of certain physical facts stated by the defendant in the interviews.
This was plainly inadmissible evidence. It had no standing as 'history' appraised by an expert and underlying his opinion. A party cannot put in incompetent evidence to fortify his experts' opinions. Commonwealth v. Sinclair, 195 Mass. 100, 108, 80 N.E. 799. Peirson v. Boston Elev. Ry., 191 Mass. 223, 233--234, 77 N.E. 769. Conduct of the defendant tending to show his inability to control himself was a fact to be proved in usual ways. Although it is beside the evidential point, the judge may have differed with the view that the testimony would have helped the defendant. The risk of prejudice to the defendant in the references to the murders (Commonwealth v. Welcome, 348 Mass. 68, 70--71, 201 N.E.2d 827; Commonwealth v. Nassar, 351 Mass. 37, 44--45, 218 A.2d 72 b) justified careful rulings in accordance with well established principles.
The defendant excepted to the exclusion of a line of inquiry to Dr. Samuel Allen, another of the Commonwealth's experts, and Medical Director at Bridgewater State Hospital. Dr. Allen had testified that he had heard mentioned in several places by several people the events in the period from June, Trial, 52 Cal.L.Rev. 543. See also Welter history of them 'in the form of a history.' The question, the exclusion of which cut off Co. v. Henderson, 183 Md. 546, 553--554, went to Bridgewater to determine if the defendant's story was factual. The offer of proof was that the defendant through his attorneys and guardian had assented attorney interrogation by an assistant attorney general taken by agreement between the Commonwealth and the defendant as to the reliability of the defendant's account, and that Dr. Allen was one of the psychiatrists for whose benefit this history was taken.
There was no error. The issue is not presented whether in the course of his study to form an expert opinion a physician must in all circumstances get the entire history by his own inquiries and confine himself to talks with the defendant. 2 Dr Allen could not properly be cross-examined about conduct of the defendant not in evidence and not appraised by him as a part of his study and evaluation of the defendant. Commonwealth v. Harrison, 342 Mass. 279, 287--288, 173 N.E.2d 87, and cases cited. His testimony that what he heard did not come to him as 'a history' was, in effect, testimony that this information had not been included in his underlying data.
Further, the defendant shows no prejudice. The transcript persuasively suggests that he had all possible advantage from the circumstance that Dr. Allen had some information in respect of the defendant's assertions as to the other crimes. The physician's further testimony was that he 'certainly would' consider that a history of homicidal conduct would be significant diagnostically in arriving at an opinion as to the defendant's ability to resist impulsive acts; that if it appeared that the conduct was sexually 'motivated or accelerated' he would consider that significant; and his opinion that the defendant had not acted under irresistible impulse in the crimes being tried had been arrived at 'practically without' such a history. In his opinion the defendant is insane, and is suffering from mental illness, defined as mild schizophrenia, but sufficiently severe so that he is committable because he is sick and dangerous.
The defendant excepted to the exclusion of a question to his own expert, Dr. Robert R. Mezer, seeking his testimony that he had information that the victims in almost all the homicides had been left in singular, bizarre and obscene positions, that the bodies of some of them had been subjected to shocking...
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