Com. v. Gibbons

• Decision Date: 16 August 1979
• Parties: COMMONWEALTH v. James H. GIBBONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 400

393 N.E.2d 400

378 Mass. 766

COMMONWEALTH v. James H. GIBBONS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 1979.

Decided Aug. 16, 1979.

Robert M. Raciti, Asst. Dist. Atty., for Commonwealth.

Arnold R. Rosenfeld, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

We transferred the case to this court on our own motion to consider the Commonwealth's assertion that a judge of the Superior Court abused his discretion in ordering a complainant in a rape case to submit to an examination conducted by a psychiatrist selected by the defendant James Gibbons. See G.L. c. 123, § 19. ¹ After the complainant refused to submit to such an examination, the judge dismissed the indictment pending against Gibbons, and the Commonwealth appealed. See G.L. c. 278, § 28E. We reverse the order dismissing the indictment and remand the case to the Superior Court.

We summarize the pretrial proceedings. ² Gibbons moved for a psychiatric examination of the complainant pursuant to G.L. c. 123, § 19. In support of Gibbons' motion, defense counsel ³ stated that the complainant has a history of mental illness, that "around this particular time (the complainant) was hospitalized," and that the complainant has been under the care of a psychiatrist for approximately two years. He further stated that this might be a situation where the complainant might be given to "make up things," and that § 19 is "directed specifically for this type of case." Finally, he added that the probable cause hearings were delayed due to the complainant's mental problems and that cross-examination at the probable cause hearing had been curtailed for the same reason.

The Commonwealth told the judge that the complainant was twenty-seven years old and had a bachelor of science degree from Boston College. The Commonwealth agreed that the complainant did have a history of mental illness and stated that the complainant's medical records would be made available to the defense and to the judge if the judge so desired. The Commonwealth told the judge that the reason the cross-examination at the probable cause hearing was terminated was that it was "far out of bounds at that point," and not because she was a mental patient. ⁴

The judge ruled that it was appropriate to order the examination and asked the defendant to recommend a psychiatrist. The defendant agreed to submit names of psychiatrists to the judge. The judge "guessed" it was "appropriate" to have the defendant select the psychiatrist, since that would ensure an "independent" psychiatrist.

At the subsequent hearing, the Commonwealth informed the judge that the witness would decline to submit to examination by a psychiatrist selected by Gibbons. The judge then dismissed the indictment.

The judge failed to follow the clear mandate of G.L. c. 123, § 19, and "request the department (of Mental Health) assign a qualified physician." This legislative requirement that a psychiatric examination under G.L. c. 123, § 19, be conducted by an impartial physician prevents parties from using the examination as an adversarial tool, to harass or embarrass the person examined. ⁵ Moreover, appointment of an impartial physician may encourage cooperation by the person examined, without which the value of the examination is highly questionable. There is general agreement that an uncooperative patient cannot be satisfactorily examined by a psychiatrist. See M. Guttmacher & H. Weihofen, Psychiatry and the Law 286-287 (1952). See also Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 177, 49 Cal.Rptr. 302, 410 P.2d 838 (1966). See generally O'Neale, Court Ordered Psychiatric Examinations of a Rape Victim in a Criminal Rape Prosecution Or How Many Times Must a Woman be Raped, 18 Santa Clara L.Rev. 119, 147 (1978). Hence the judge's order that Gibbons, rather than the Department of Mental Health, select the psychiatrist is an error of law.

The Commonwealth also argues that there was insufficient showing of need to justify ordering the witness to submit to a psychiatric examination against her will on the issue of competency. ⁶ We agree.

The standard governing the competency of witnesses is clear. A witness is competent to testify if he or she is aware of a duty to tell the truth and has personal knowledge of relevant facts. Competency also depends on the capacity of a witness to perceive, remember, and recount his or her knowledge of the facts. Commonwealth v. Zelenski, 287 Mass. 125, 128-129, 191 N.E. 355 (1934). See Commonwealth v. Sires, 370 Mass. 541, 546, 350 N.E.2d 460 (1976); Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). See generally W. B. Leach & P. J. Liacos, Massachusetts Evidence 135 (4th ed. 1967). McCormick, Evidence § 62 at 140 (2d ed. 1972). If the competency of a witness is placed in issue, "it is the duty of the judge to examine into the question of (the witness's) competency, and to reject (the witness) unless (the judge) is satisfied that (the witness) is competent." Commonwealth v. Reagan, 175 Mass. 335, 340, 56 N.E. 577, 579 (1900). See Commonwealth v. Welcome, supra, 348 Mass. at 69, 201 N.E.2d 827.

The evidence before the judge of the witness's grand jury testimony should have dispelled any doubt raised by the defendant's counsel as to the witness's competency. ⁷ A reading of the testimony by the complainant and the police reveals that she could perceive, remember and recount the events.

There is no basis in this record on which the judge could have determined that the complainant lacked sufficient understanding to comprehend the oath. The defendant offered no reasons at the hearings or in his motion for examination which indicated that the witness's actual mental condition affected her ability or willingness to tell the truth. Thus the judge had no basis on which to order an involuntary examination for competency.

The mere fact that a witness has received psychiatric treatment does not render the person incompetent as a witness. A bald assertion that a complainant may be mentally ill is insufficient. See, e. g., People v. Seel, 68 Ill.App.3d 996, 1006, 25 Ill.Dec. 99, 386 N.E.2d 370 (1979); State v. Kahinu, 53 Hawaii 536, 547, 498 P.2d 635 (1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 944, 35 L.Ed.2d 258 (1973). Sanity is not the test of a witness's competency. Commonwealth v. Zelenski, supra, 287 Mass. at 129, 191 N.E. 355. Commonwealth v Sires, supra. Kendall v. May, 10 Allen 59, 63 (1865). See G.L. c. 123, § 25; G.L. c. 233, § 20. Compare United States v. Pacelli, 521 F.2d 135, 140-141 (2d Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976) (defects in witness's testimonial capacity obvious to all). See generally Note, Psychiatric Examinations of Witnesses: Standards, Timing and Use by Indigents, 55 Iowa L.Rev. 1286, 1297 (1970); O'Neale, Supra at 150 & n. 197.

Nevertheless, if the judge were concerned about the witness's competency, he should have held a voir dire examination of the witness, ⁸ or he should have examined the witness's medical records, or he should have heard from the witness's psychiatrist before ordering the § 19 examination. In this case the judge could have deferred his ruling until after the Commonwealth's counsel and the defense counsel met with the witness's psychiatrist an offer made by the Commonwealth. ⁹ The Commonwealth points out that these suggestions were made to the judge and that the judge summarily rejected all options except the involuntary examination. The record supports the Commonwealth's statements.

We think that a decision to order an involuntary psychiatric examination under G.L. c. 123, § 19, must be based on informed discretion. "By such expression is implied absence of arbitrary determination, capricious disposition, or whimsical thinking. . . . The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just." Davis v. Boston Elevated Ry., 235 Mass. 482, 496-497, 126 N.E. 841, 844 (1920). Accord, Commonwealth v. Dougan, --- Mass. ---, --- ^A, 386 N.E.2d 1 (1979); Commonwealth v. Amazeen, --- Mass. ---, --- ^B, 375 N.E.2d 693 (1978); Commonwealth v. Bys, 370 Mass. 350, 361, 348 N.E.2d 431 (1976).

The judge ordered the examination, stating that "it was represented to me she had had some substantial or mental delusions in the past." The judge apparently was willing to rely on defense counsel's assertion that because the complainant had a history of psychological problems for which she was being treated she might "make up things." The defendant's attorney was "not qualified to give an opinion with regard to alleged psychological abnormalities." State v. Kasman, S.D., 273 N.W.2d 716, 725 (1978). Moreover, the judge in relying on counsel's assertion Knew that counsel had not yet seen the complainant's medical record. Therefore, the judge's exercise of his discretion was arbitrary and capricious; it was not a thoughtful and reasoned decision designed to reach a just result. Of course, "conduct manifesting abuse of judicial discretion will be reviewed and some relief afforded." Davis v. Boston Elevated Ry., supra, 235 Mass. at 497, 126 N.E. at 844.

Moreover, when unsupported allegations and conflicting statements are offered in support of a motion for an involuntary psychiatric examination, at the very least the exercise of discretion implies that an evidentiary hearing be held. State v. Butler, 27 N.J. 560, 605, 143 A.2d 530 (1958). We see no reason to base such a vital decision on representations of counsel when...