Com. v. Fillippini

• Decision Date: 14 December 1973
• Citation: 1 Mass.App.Ct. 606,304 N.E.2d 581
• Parties: COMMONWEALTH v. William L. FILLIPPINI et al. 1
• Court: Appeals Court of Massachusetts

Page 581

304 N.E.2d 581

1 Mass.App.Ct. 606

COMMONWEALTH v. William L. FILLIPPINI et al. ¹

Appeals Court of Massachusetts, Plymouth.

Argued May 24, 1973.

Decided Dec. 14, 1973.

Daniel F. Toomey, Boston, for defendant Fillippini.

John J. Perenyi, Brockton, for defendant Andrews.

A. Stanley Littlefield, Dist. Atty., and John C. Webster, III, Asst. Dist. Atty., for the Commonwealth.

Before ROSE, KEVILLE, and ARMSTRONG, JJ.

ROSE, Justice.

The defendants were separately indicated for armed robbery while masked and for assault with intent to murder, tried under the provisions of G.L. c. 278, §§ 33A--33G, and convicted by a jury on each indictment. They have assigned the following as error: by Fillippini, the denial of his motion for a psychiatric examination of a prosecution witness; by both defendants, the admission of testimony concerning footprints found in the vicinity of the robber's escape vehicle and near Fillippini's home; by Andrews, he denial of a motion to strike the footprint testimony and the trial judge's refusal to direct a verdict on his indictment for assault; and finally, by both defendants, the denial of their motions for a new trial. Fillippini also assigned as error the denial of his motion for a severance, but the assignment was not argued in his brief and we do not consider it here. Appeals Court Rule 1:13.

The evidence admitted at trial tended to show the following: Andrews, accompanied by a woman named Kathy Perry, entered a store in Plymouth on the morning of March 26, 1968, and sought to purchase cigarettes. His car was left parked outside the store entrance with its engine running. Shortly thereafter, a masked man armed with a pistol entered the store and announced a holdup. The gunman ordered Andrews to open the cash register, but the register jammed when Andrews pressed its keys. The gunman fired two shots, one above and to the left of Richard Irving, the store manager, and the second across the counter in front of him. The gunman then ordered Irving to open the safe, threatening to kill a child in the store if Irving refused. He also briefly held his pistol to Irving's head. The robber then ordered Andrews to put the contents of the safe into a bag and Andrews did so. The robber drove off with the money in Andrews' car, which was later found abandoned. After the gunman left, Andrews argued with Irving over who would notify the police and repeatedly pushed the store manager away from a telephone. Irving then ordered him away from the store counter and summoned assistance. Andrews remained in the store until the police arrived, responded, with Irving, to their questions and then accompanied Perry, who had left the store briefly and returned, to his apartment. A money sack identified as the one used in the robbery was subsequently discovered in Fillippini's house.

1. The chief prosecution witness at the defendants' trial was Kathy Perry, who testified that she was friendly with both defendants and with one James Pina and had been present on several occasions while the three men planned the March 26 robbery. Perry was present in the store during the holdup and stated that she recognized the gunman's voice as that of Louis Fillippini. She also claimed to have been present when the two defendants divided the proceeds of the crime.

Neither defendant challenged Perry's competency at trial, but both filed pre-trial motions requesting that she be given a psychiatric examination under G.L. c. 123, § 99. ² Fillippini's motion was accompanied by his attorney's affidavit, which reported information to the effect that Kathy Perry was a 'pathological' liar. ³ The affidavit cited no evidence supporting this conclusion, although in arguing the motion Fillippini's attorney did state that Perry had been hospitalized three times for 'mental reasons.' The motion was denied without comment, and the defendant excepted. Fillippini argues on appeal that the motion judge abused his discretion in refusing to grant the motion in the face of 'compelling information' presented to the court and in failing to make a personal inquiry of the challenged witness before issuing his ruling. We consider the latter argument first.

The defendant correctly characterizes the issue here as one of discretion. Both the wording of the statute and the decisions interpreting it establish that the judge's decision whether to order a psychiatric examination is a purely discretionary one. Commonwealth v. Welcome, 348 Mass. 68, 69, 201 N.E.2d 827 (1964). Richardson v. Commonwealth, 355 Mass. 112, 116, 243 N.E.2d 801 (1969). Fillippini argues, however, that the presiding judge was required by Massachusetts law to observe or 'scrutinize' the witness before denying his request that she be examined. In evaluating the defendant's argument, it should be recalled that the psychiatric examination authorized by § 99 is not itself determinative of any issue. It is intended only as a supplement to the more traditional methods of assessing the competency of witnesses, such as the voir dire. It seems to us farfetched to argue that a judge's decision whether or not to employ this wholly discretionary procedure is bounded by a rigid procedural constraint, that he must, in every case in which a psychiatric examination is requested, personally examine the witness. The language of § 99 supports no such interpretation and, despite the defendant's arguments to the contrary, we do not understand the case law to require it. In Commonwealth v. Theberge, 330 Mass. 520, 527, 115 N.E.2d 719 (1953), cited by Fillippini, the court did observe that the judge who denied the motion 'had already formed the opinion that . . . (the witness) possessed sufficient ability to testify.' This passage calls attention to the probable basis for the court's ruling but cannot fairly be read to require any particular method of making it. In the Theberge case the motion for a psychiatric examination was decided together with other motions relating to competency, and the trial judge was able to consider it in the light of information developed through voir dire. Fillippini, however, chose to request an examination well in advance of trial and submitted his motion on affidavits alone. He did not request a voir dire at that time and cannot now claim that the Theberge case required the motion judge to go beyond the evidence submitted and to conduct a voir dire.

A second decision relied upon by the defendant, Commonwealth v. Welcome, supra, is of no greater assistance to his argument. In that case, too, the court noted that the trial judge observed the witness in question. But other language in the opinion suggests that a judge may reject a psychiatric examination in favor of more traditional methods of determining competency in order 'to lighten the impact of the proceedings' on the witnesses. Commonwealth v. Welcome, supra, 348 Mass. at 69, 201 N.E.2d at 828. There is no indication that the refusal to grant a psychiatric examination must be based in every instance on a prior inquiry of the witness.

Also we find no abuse of discretion in denying the motion on the basis of the indefinite supporting information which we do not find to be 'compelling' in the absence of documentation or other specific evidence to support it.

We note finally that at the trial the defendants were permitted to cross-examine Kathy Perry as to her medical history, her previous criminal record and her reputation for veracity. It was therefore open to the jury to consider all these matters as they bore on the credibility of her testimony.

2. Both defendants took exception to the admission of testimony concerning footprints found in the vicinity of the abandoned escape car and near Fillippini's home, and Andrews further excepted to the denial of his motion to strike this testimony. The evidence in question was presented by a police officer, who stated that he had observed footprints of the 'pointed shoe type' with a distinguishing heel mark in the immediate area of the empty getaway car. On cross-examination, the prints were described as beginning approximately ten yards from the vehicle. About four hours after making these observations the officer returned to the car and at that time noticed the same type of footprint farther along the road. These marks ended halfway down an embankment near Fillippini's house. Earlier in the trial, the store manager, Richard Irving, had testified without objection that the man who robbed him had worn 'pointed toe' shoes with an 'odd-shaped heel.'

The defendants argue that the police officer's testimony should not have been admitted because it lacked relevancy and prejudiced their defense. It is a familiar tenet of Massachusetts law that the 'relevancy of testimony depends upon the question whether it has a rational tendency to prove the issues made by the pleadings or other incidental material issues developed in the course of the trial.' Commonwealth v. Durkin, 257 Mass. 426, 427--428, 154 N.E. 185, 186 (1926). COMMONWEALTH V. ROSS, MASS. (1972) , 282 N.E.2D 70.^A 'Because of the wide variety of facts that may have circumstantial probative value, the courts are liberal in admitting evidence of facts which appear to bear some degree of relevance to the matters...