Com. v. Kostka

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation370 Mass. 516,350 N.E.2d 444
Decision Date23 June 1976

Page 444

350 N.E.2d 444
370 Mass. 516
Supreme Judicial Court of Massachusetts, Middlesex.
Argued March 1, 1976.
Decided June 23, 1976.

Page 446

[370 Mass. 517] Paul A. D'Agostino, Jr., Somerville, for defendant.

Alan L. Kovacs, Asst. Dist. Atty., for the Commonwealth.


[370 Mass. 517] HENNESSEY, Chief Justice.

Kostka was found guilty of murder in the first degree, armed robbery, and two counts of assault with a dangerous weapon. His appeal is before us pursuant to G.L. c. 278, §§ 33A--33G.

On appeal, Kostka presents the following as error: (1) the trial judge's finding that he was competent to stand trial; (2) the trial judge's allowance of testimony of an out-of-court identification and an in-court identification by a Mrs. Eunice Silverman; (3) the trial judge's refusal to give instructions on the consequences of a verdict of not guilty by reason of insanity; and (4) the trial judge's refusal to direct a verdict of not guilty by reason of insanity. We conclude that there was no error in the trial judge's actions. 1

Before considering the issues raised on appeal, we set out the facts adduced at trial. On April 15, 1972, about [370 Mass. 518] 10 P.M., two teenage girls, Diane Kaplan and Nancy Habeeb, entered the Salem Street Variety Store in Malden. At that time Murray Cohen was standing behind the counter and a man they later identified as Kostka was standing in front of it. While the two girls were standing at the icecream chest, they heard a shot. After they turned around, they heard two more shots

Page 447

and saw Murray Cohen collapse. Kostka then turned toward the girls, pointed his gun at them, and told them to move toward the telephone booth. He then reached behind the counter and grabbed a bag which sounded to the girls as if it contained cash. On his way out of the store Kostka told the girls that if they said anything he would kill them too. Murray Cohen died as a result of the shooting.

Three days later, on April 18, both girls were taken to State police headquarters in Boston where, after viewing hundreds of pictures, they identified pictures of Kostka. Later that day Kostka was arrested by a Boston police officer.

Kostka was also identified by a Mrs. Eunice Silverman, the wife of the owner of the store, who, in response to a composite picture in a Malden newspaper, called the Malden police to report that she had seen a man fitting the composite description in the store the night before the murder. Mrs. Silverman testified that she was working in the store that evening when, about 10:15 P.M., fifteen minutes before closing time, a man ontered the store, stood around the magazine rack for several minutes, and then purchased some potato chips, a pack of cigarettes, and a magazine. Mrs. Silverman testified that the man was in the store for about five or ten minutes and that she observed him closely because she was uneasy about someone entering the store that close to closing time. She also testified that she engaged the man in a brief conversation before he left.

At the time the man entered the store there was another person, who was waiting to take Mrs. Silverman home, present; before that person left, a third person entered [370 Mass. 519] the store. After Mrs. Silverman saw the composite photograph in a local paper several days later, she called the police, and told them that she was 'pretty sure' that a man who had been in the store the night before the murder was the man in the composite drawing. The police came to her home shortly thereafter with about twelve black and white photographs of white males. Two of the twelve pictures were of the defendant--one photograph with glasses on and another without. Of the other ten photographs, there were no duplicates. Mrs. Silverman picked out the two pictures of Kostka. However, it was not until the next day that the police notified her that she had picked out pictures of the suspect.

The evidence presented by Kostka was almost exclusively concerned with his defense of insanity. There was testimony from a number of lay witnesses and from two psychiatrists; additionally, extensive medical records were produced. Without setting out all the evidence produced by the defense, we shall attempt to summarize the evidence on insanity.

Kostka's mother testified to years of difficulty with her son, starting at age three or four. Kostka had continual problems at school, was disruptive and violent, and was sent to the Middlesex Training School at age nine. He stayed there for about two years, having been classified as a habitual school offender. Although Kostka returned to the Malden public schools at age fourteen, he remained in school for only two months. One year later he was referred to a special program for emotionally disturbed children.

A series of hospital admissions began in 1964, when Kostka was fourteen. Over the next five years Kostka had ten admissions--six at Bridgewater State Hospital (Bridgewater), and two each at Foxborough State Hospital and Metropolitan State Hospital. The admissions lasted from one to seventeen months. Some were the result of prison, court or school references, but most were requested under the provisions of G.L. c. 123. The diagnoses varied [370 Mass. 520] from 'emotionally unstable personality' to 'sociopathic personality' to 'schizoid personality.' At no time did the diagnoses state that Kostka was overtly psychotic.

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After Kostka was arrested for the murder of Murray Cohen, he was initially incarcerated in the Billerica House of Correction. About a month later, because of disruptive conduct there, he was sent to Bridgewater State Hospital. After several weeks of observation, during which Kostka refused to take psychological tests, the staff issued a provisional diagnosis in which they concluded that the defendant has an '(a)nti-social personality disorder, severe, with schizoid and unstable features, possibly decompensating into schizophrenia, paranoid type.' At that time (June 1972), Kostka was considered by the staff to be incompetent to stand trial. He remained at Bridgewater.

In September, 1972, a staff report reaffirmed the previous diagnosis, but noted that Kostka was 'well oriented and in good contact with reality.' In January, 1973, a further review of Kostka's condition resulted in the same basic diagnosis, but concluded that he was then competent to stand trial. In March, after spending nine months at Bridgewater, pursuant to his own request, he was transferred back to Billerica. Six days later Kostka returned to Bridgewater on the basis of a request by the prison physician. Reevaluation of Kostka's condition resulted in a reaffirmation of previous diagnoses.

In addition to these medical records and staff evaluations, Kostka presented two experts. 2 A Dr. James Christy, the acting medical director of Bridgewater at the time of trial, testified that he had known Kostka for a period of time and that he had examined him on numerous occasions. In June, 1972, Dr. Christy felt that Kostka was 'on his way to psychosis.' However, Dr. Christy did not find Kostka to be in a continual state of psychosis. 3 While Dr. [370 Mass. 521] Christy did conclude at trial that the defendant, then twenty-three years old, was 'presently mentally ill' and that he probably had been since he was nine or ten years old, Dr. Christy did not have an opinion whether Kostka was criminally responsible on the date of the crime.

The defendant's other expert, Dr. Robert Mezer, testified that he first examined Kostka in February, 1973. Dr. Mezer expressed his belief that Kostka suffered from chronic paranoid schizophrenia, resulting in the loss of 'contact with reality' and 'difficulty in adjusting to the requirements (of) life as most people know it.' Dr. Mezer disagreed with the other doctors' diagnoses of Kostka: he felt Kostka was not simply a sociopath. He concluded that Kostka was not criminally responsible on the date of the crime under the test set forth in Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967). He stated that Kostka was suffering from 'paranoid schizophrenia,' a 'major psychotic illness.' Kostka was thus 'not able to conform his conduct to the requirements of the law because of his mental illness.' Dr. Mezer based this conclusion on observation and evaluation of Kostka's 'entire illness' and Kostka's statements, in February, 1973, about his mental state on the date of the crime.

To rebut this substantial evidence on the issue of insanity, the Commonwealth first called Mrs. Silverman to testify. The Commonwealth argues that her testimony, in addition to identifying Kostka as the man in the store the night before the murder, would permit the inference that Kostka might have been sane because he planned to rob the store when only he and a salesperson would be there.

A registered nurse at Bridgewater also testified in rebuttal. She said that she had

Page 449

known Kostka for about two years. Kostka never caused any difficulties for her, she stated, but he did say that at times he had problems.

Finally, a correction officer at Bridgewater testified that he had cared for Kostka for the three weeks prior to trial. The officer stated that Kostka had actively participated [370 Mass. 522] with other patients in sports, that he had worked in the print shop, and was neat in appearance. The officer indicated that Kostka did not cause any disturbances during this period--while being confined in a minimum security building--but he did note that Kostka was on medication.

Having set out the facts of the crime and summarized the evidence of insanity, we turn now to the issues raised on appeal.

1. Competence to Stand Trial.

Kostka first argues that the trial judge's finding that he was competent to stand trial was erroneous. 'The test to be applied in...

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