Com. v. Grey

• Decision Date: 19 March 1987
• Parties: COMMONWEALTH v. Terry L. GREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 171

505 N.E.2d 171

399 Mass. 469

COMMONWEALTH v. Terry L. GREY.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 11, 1986.

Decided March 19, 1987.

Robert L. Sheketoff (John Palmer with him), Boston, for defendant.

Laura Callahan, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, and O'CONNOR, JJ.

WILKINS, Justice.

The defendant was indicted for murder in the first degree and convicted of murder in the second. He challenges the judge's refusal to instruct the jury that the defendant's mental impairment, if any, could be considered on all issues involving his specific intent to do certain things. The judge told the jury, over objection, that any mental impairment could be considered only on the issue whether the defendant deliberately premeditated the victim's death. The judge's instruction was erroneous because it told the jury not to consider evidence of the defendant's mental condition in deciding whether the defendant intended to kill the victim or intended to inflict grievous bodily harm on him, both of which are bases for a finding of malice aforethought.

Evidence tending to show that, in the circumstances, a defendant in a murder case did not intend the victim's death or serious injury is relevant, but not dispositive, as to whether the killing was committed with malice. ¹ The admission in evidence of the defendant's mental condition is appropriate because it bears on the question whether the crime of murder was committed at all. See Commonwealth v. Gould, 380 Mass. 672, 681-682, 405 N.E.2d 927 (1980); S. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Criminology 1, 6 (1984) (hereinafter, Morse). ² Just as we permit evidence of a defendant's alleged intoxication to be considered when his specific intent to kill is in issue (Commonwealth v. Henson, 394 Mass. 584, 593, 476 N.E.2d 947 [1985] ), we should permit the jury to consider evidence of mental impairment at the time of the crime in deciding whether the Commonwealth has proved the defendant's specific intent. Indeed, consideration of the effect of a mental impairment for which a defendant is not responsible seems at least as warranted as our present practice permitting consideration of the effects of the voluntary injection of drugs. See United States v. Brawner, 471 F.2d 969, 998-1001 (D.C.Cir.1972); Morse, supra at 11-12. The exclusion of such evidence could raise a constitutional problem, because "[a]n absolute rule that bars consideration of relevant evidence bearing on a defendant's capacity to have a specific intent is, in any event, arbitrary." Commonwealth v. Henson, supra, 394 Mass. at 593, 476 N.E.2d 947. Morse, supra at 7. ³ We have suggested that, if a defendant's mental impairment affected his capacity to form the specific intent to kill or to do grievous bodily harm, the defendant would be entitled to an instruction on the effect of his impairment on the question of malice. See Commonwealth v. Dunton, 397 Mass. 101, 104, 489 N.E.2d 1012 (1986).

We therefore conclude that the judge's failure on request to "instruct the jury, on the issue of intent, that they should consider the defendant's mental status on the day in question," requires reversal of the conviction if there was evidence tending to show that, because of his mental condition, the defendant may not have formed a specific intent to kill or to cause grievous bodily harm that could have warranted a finding of malice. We reach this conclusion because we do not know on what possible basis the jury concluded that the defendant killed the victim with malice, and thus we do not know that the failure to give the requested instruction was not prejudicial. ⁴

We first outline the facts of the killing and then summarize the testimony of defense experts that was relevant to the defendant's state of mind when he stabbed the victim. In 1983, the defendant and the victim worked for a summer youth program cleaning Franklin Field in the Dorchester section of Boston. The teenagers working in the program had been concerned that someone, including persons within the group, might attempt to steal their paychecks. On August 8, the defendant, who was then fifteen years old, brought to work a switchblade knife which he displayed, flicking the blade in and out. The jury could have found that the victim asked the defendant if he could see the knife. The defendant refused, saying that he thought the victim and his "boys" were going to take the defendant's paycheck. A discussion followed, leading to loud talk between the two. The defendant, who had continued to open and close the knife, put it in one of his pockets. When the victim started to back away from him, the defendant told him not to or he would stab him. When the victim moved a little farther away, the defendant drew the knife out of his pocket, snapped the blade open, and stabbed the victim in the chest.

The defendant did not deny the stabbing but testified that he was afraid of the youngsters around him and that, when the victim pushed him on the forehead, he took the knife out of his pocket. The victim then backed off, and the defendant put the knife away. The victim took a step toward the defendant. The defendant shoved the victim in the chest with his right hand. He knew he held the knife in that hand but did not know whether it was open or closed. The victim died of that single stab wound.

A psychiatrist, who had seen the defendant approximately two years before the killing and again after it, testified for the defendant. He said the defendant was of borderline retarded intelligence. If faced with a stressful situation he could not handle, he would try to get away but often emotion would overwhelm him and he would strike out aggressively and impulsively. On cross-examination, the psychiatrist added that the act of bringing out the knife and stabbing the victim was intentional conduct but that there could have been an "impulsive reflex element" because the defendant felt threatened and panicked.

Another psychiatrist testified that she interviewed the defendant after the killing and reviewed various reports. She said that the defendant had definite paranoid traits that hindered his emotions and could lead to impulsive acts of aggression ("sudden acts without thinking about it, maybe acting on the basis of some subconscious feelings"). The stabbing, she said, could have been impulsive.

Although there was other evidence that would have warranted the conclusion that the defendant intentionally stabbed the victim in the chest intending to kill him or to cause him grievous bodily harm, the testimony of the defendant's experts concerning his mental state (and the possible cause of his reaction in the circumstances) tended to show that the defendant did not intend to kill or to harm the victim. The judge, however, declined to instruct the jury that the defendant's mental state at the time he stabbed the victim was relevant to questions of the defendant's intent. The defendant was entitled to an instruction that the jury could consider his mental condition whenever the Commonwealth had the burden of proving the defendant's specific intent to cause a particular result.

We do not say that mental abnormality, short of a lack of criminal responsibility, may excuse a defendant charged with murder in the second degree. There is no element of excuse in what we decide. We are concerned with the Commonwealth's proof of a specific intent, which in some instances (as here) could be and in other crimes (such as robbery, see Commonwealth v. Sheehan, 376 Mass. 765, 772, 383 N.E.2d 1115 [1978] ) is a part of the Commonwealth's proof of guilt.

The evidence here warranted a finding of guilty of murder in the second degree. Nothing we decide today eliminates the possibility that, at a second trial, such a verdict will again be returned. The evidence also required an instruction on manslaughter, a crime that has no element of specific intent. What we decide today thus has no bearing on the proof of manslaughter. The elements of these crimes have been established by judges applying the common law, not by the Legislature, which, of course, has the right to redefine those crimes.

Judgment reversed.

Verdict set aside.

HENNESSEY, Chief Justice (concurring in part and dissenting in part).

I concur in the result reached by the court, ¹ but I disagree with the court's reasoning. This court has several times disclaimed any intention of adopting in criminal cases the principle of partial responsibility or diminished capacity. See, e.g., Commonwealth v. Sheehan, 376 Mass. 765, 771-772, 383 N.E.2d 1115 (1978); Commonwealth v. McGuirk, 376 Mass. 338, 345-346, 380 N.E.2d 662 (1978); Commonwealth v. Johnson, 374 Mass. 453, 461-465, 373 N.E.2d 1121 (1978). Nevertheless, the reasoning of the court in this case applies that principle in practical effect. It does so by stating that murder in the second degree by reason of malice aforethought is a crime of specific intent. Then the court concludes that the jury should have been instructed that they should consider the evidence of the defendant's mental abnormality ² on the issue whether the defendant was capable of entertaining the requisite intent. This is a new concept in the Massachusetts law of murder in the second degree and malice aforethought. Perhaps it is more important that I must conclude, based upon the reasoning of several of this court's recent decisions (discussed below), that a defendant's voluntary intoxication by use of illegal drugs or alcohol may now excuse him from conviction of murder in the second degree.

My concerns here do not implicate the court's many decisions relating to insanity, see, e.g., Commonwealth v. Kostka, 370 Mass. 516, 539, 540, 350 N.E.2d 444 (1976) (Hennessey, C.J., dissenting in part), which are based on the sound premise that we should not treat as criminals those persons who are not...