Com. v. Genius

• Decision Date: 07 December 1982
• Citation: 387 Mass. 695,442 N.E.2d 1157
• Parties: COMMONWEALTH v. Everard A. GENIUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1157

442 N.E.2d 1157

387 Mass. 695

COMMONWEALTH v. Everard A. GENIUS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 14, 1982.

Decided Dec. 7, 1982.

Charles M. Burnim, Marblehead, for defendant.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

The defendant appeals from his conviction of murder in the first degree of one Lillie Mae Nesbitt. None of the issues argued in his appeal was raised by his trial counsel. His new appellate counsel, relying principally on G.L. c. 278, § 33E, argues that certain errors and omissions in the judge's instructions to the jury created a substantial likelihood of a miscarriage of justice requiring a new trial. We need decide the issues argued only in these terms. He also argues, under G.L. c. 278, § 33E, that we should order a reduction of the verdict of murder in the first degree to a lesser degree of guilt. We affirm the conviction and see no basis for reducing the verdict.

On the evidence, the jury were warranted in finding that, on May 29, 1979, the defendant stabbed the victim, whom he had known for several years, in her apartment in the Dorchester section of Boston. That fact was not seriously in dispute at the trial. The defendant testified that he went to the victim's home at her request and that she pulled a knife and then a gun on him. He heard a click and remembered nothing from that moment until after he had left the victim's residence. A daughter of the victim witnessed major portions, but not all, of the stabbing incident. There was evidence that, after stabbing the victim, he pursued her up some stairs and stabbed her again several times. The defendant argued that he acted in self-defense.

The defendant presented an expert witness, a psychiatrist, who testified that the defendant was an extremely depressed, passive person with no history of violent action. He concluded that, out of panic, fear, and some anger at the victim, the defendant simply lost control. None of his examinations nor any circumstances of which the expert was aware suggested that, at the time of the stabbings, the defendant was "frankly mentally ill." He was not irrational or "crazy in any sense," although he was extremely agitated to the point of losing touch with the enormity of what he was doing. On cross-examination, the expert testified that the defendant was criminally responsible, although the defendant's state of mind was not consistent with the ability to calculate or understand the consequences of what he was doing.

The case was presented to the jury both on the theory of deliberate premeditation with malice aforethought and on the theory of extreme atrocity or cruelty. They were given the option of returning a manslaughter verdict, or, of course, a verdict of not guilty. The judge instructed the jury, consistent with Commonwealth v. Gould, 380 Mass. 672, ---, --- - ---, Mass.Adv.Sh. (1980) 1253, 1261-1267, 405 N.E.2d 927, that (1) in considering the defendant's capacity deliberately to premeditate his acts, they could consider the defendant's mental illness, if they found he had one, and (2) in assessing the defendant's mental state, as it might bear on a finding of extreme atrocity or cruelty, the jury could consider whether the defendant's mental capacity was substantially reduced.

1. The judge gave no instruction concerning the defendant's possible lack of criminal responsibility, colloquially known as an "insanity defense." See Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967). No such instruction was requested, and the defendant did not object, on this ground, to the charge as given, even though the issue of the lack of criminal responsibility was referred to in a bench conference in the course of the trial.

Trial counsel made a conscious choice not to assert the defendant's lack of criminal responsibility and only to argue, on the principles of the Gould case, that the defendant had a diminished capacity to appreciate what he was doing. In making his Gould argument, trial counsel stated that the defendant was not mentally ill. To dispose of one argument made to us, we conclude that this was a reasonable tactical choice considering that the defendant's own expert testified that the defendant was criminally responsible on May 29, 1979. To argue against his own witness on the issue of criminal responsibility could well have undercut his expert's credibility on the Gould issues. In the circumstances, we find no ineffective assistance of counsel in counsel's failure to argue lack of criminal responsibility.

There was, however, evidence that, if believed, would have warranted the jury in concluding that there was a reasonable doubt concerning the defendant's criminal responsibility. If it had been requested, a charge on criminal responsibility should have been given. Compare Commonwealth v. Laliberty, 373 Mass. 238, 246-247, 366 N.E.2d 736 (1977); Blaisdell v. Commonwealth, 372 Mass. 753, 765, 364 N.E.2d 191 (1977); Commonwealth v. Walker, 370 Mass. 548, 581, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976) (charge required), with Commonwealth v. Mattson, 377 Mass. 638, 644, 387 N.E.2d 546 (1979); Commonwealth v. McInerney, 373 Mass. 136, 151-153, 365 N.E.2d 815 (1977) (no charge required). The jury were not bound by the expert testimony on this question. Commonwealth v. Laliberty, supra 373 Mass. at 242, 366 N.E.2d 736; Commonwealth v. Walker, supra 370 Mass. at 583, 350 N.E.2d 678. There was evidence that warranted the jury in finding that the defendant stabbed the victim, whom he testified he loved, ten times about her body; the defendant did not recall the stabbings; he mistakenly believed the victim threatened him with a gun; he had "snapped out"; and he was unable to understand the enormity and consequences of what he was doing. This is not a strong case on the defendant's lack of criminal responsibility, particularly in light of his own expert's testimony, but it would have been a jury question, if the defendant had requested a charge on lack of criminal responsibility.

We must decide whether there was a substantial likelihood of a miscarriage of justice requiring a new trial. ¹ The Commonwealth argues that, because the jury found the defendant guilty of murder in the first degree, thus rejecting a reduced sentence in the face of Gould instructions, the defendant could not have been prejudiced by the omission of a charge on criminal responsibility. It is true that, if deliberate premeditation was the basis of the verdict, the jury did not find that any mental illness of the defendant barred a finding beyond a reasonable doubt of deliberate premeditation. It is also true, if extreme atrocity or cruelty was the basis of their verdict, the jury did not reject a finding of guilt on the ground of the defendant's mental illness or substantially reduced mental capacity. But these circumstances are not conclusive. The factual questions to be considered concerning a lack of criminal responsibility under the standards of Commonwealth v. McHoul, 352 Mass. 544, 546-548, 226 N.E.2d 556 (1967), are not identical to the factual questions presented concerning mental illness and a substantially reduced mental capacity under Commonwealth v. Gould, supra. It must be acknowledged, however, that there are substantial similarities in those factual issues.

Although, therefore, the jury's verdict was not conclusive on the matter of the defendant's criminal responsibility, it does support our conclusion that there was no substantial likelihood of a miscarriage of justice. If the jury were unwilling to return a verdict of guilty of second degree murder, in the light of Gould instructions, the likelihood that it would have accepted an "insanity defense" is slight. ²

Trial counsel made a reasonable tactical choice not to press an "insanity" defense, and thus "the matter of [the defendant's] criminal responsibility was not fairly raised in this case." Commonwealth v. Laliberty, supra 373 Mass. at 247, 366 N.E.2d 736. The only expert testimony indicated that the defendant was not...