Com. v. Lunde

• Citation: 390 Mass. 42,453 N.E.2d 446
• Parties: COMMONWEALTH v. Robert M. LUNDE.
• Decision Date: 26 August 1983
• Court: United States State Supreme Judicial Court of Massachusetts

Page 446

453 N.E.2d 446

390 Mass. 42

COMMONWEALTH v. Robert M. LUNDE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 5, 1983.

Decided Aug. 26, 1983.

Alfred E. Nugent, Boston (Robert P. Dolbec, Jr., Boston, with him), for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

The defendant, Robert M. Lunde, was convicted of murder in the second degree for the September 23, 1978, slaying of his brother-in-law, Philip C. Jones. At trial, the defendant's commission of the homicide was not contested. The sole issue was the defendant's criminal responsibility. The jurors rejected the defendant's claim that he was not criminally responsible and returned a verdict of guilty of murder in the second degree. ¹

The defendant appeals, claiming that it was error to deny his motion for a required finding of not guilty and for a new trial. He also asks us to exercise our power under G.L. c. 278, § 33E, either to enter a verdict of not guilty by reason of insanity or to order a new trial. We affirm and conclude that there is no reason to exercise our power under G.L. c. 278, § 33E.

We summarize the evidence. On September 23, 1978, the day of the killing, the defendant was living with his sister, her husband (the victim), and their four children, Robert (age fourteen), Lonnie (age twelve), Joseph (age eleven), and Wayne (age eight). At approximately 6 P.M., the defendant's sister saw him bringing trash out of the house. She told him to put it back because the trash would not be collected for several days. The family then had dinner. After dinner, his sister left the house with her son Lonnie. One child, Robert, went to the kitchen to feed the dog, and the victim and his two younger sons went into the living room to watch television.

The two younger children saw the defendant bring two or three bags of garbage to the sidewalk. They reported that fact to their father. The victim went to the front door and told the defendant to bring the trash back. The defendant said, "All right," and brought the trash at least halfway up the porch stairs.

The defendant then went to his bedroom, and the victim returned to the living room. The defendant entered the bathroom for two or three minutes and then walked to the doorway of the living room, pointed a gun at the victim, and began shooting.

After five or six shots the defendant started to reload the gun. The youngest child, Wayne, approached the defendant, who pointed the gun at the child and said, "You better get out of here before I kill you." The child ran out and, as he did, he heard more shots. ² The defendant then left the living room and went to the front porch.

The police arrived, and the defendant told them that the victim had called him a "child molester." The officer asked, "Who?" and the defendant responded, "In there," and pointed inside the front door. The officer then entered the living room and found the victim's body on the floor with "holes" in the stomach and chest area.

The defendant was arrested and handcuffed. The officer read the defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from a card, and then gave the defendant the card to read. The defendant looked at the card, handed it back to the officer and stated, "I want to talk to a lawyer." The officer ceased all questioning of the defendant.

The defendant was taken to the police station, where he was brought to the booking area and informed by the booking officer that he was being charged with assault with intent to murder. ³ The officer read the Miranda warnings to the defendant. The defendant replied that he wanted to talk to an attorney.

Then, the officer asked the standard booking questions. The defendant answered them clearly and coherently. When the booking procedure was completed, the officer gave the defendant the telephone book so that he could call a lawyer. The defendant appeared to have difficulty finding a number, and the officer asked the defendant if he wanted a particular attorney. The defendant named a lawyer, ⁴ and the officer located the attorney's name in the telephone book and wrote the telephone number on a piece of paper. He gave the paper to the defendant. The defendant then dialed the number himself. After waiting at least a minute for the defendant to speak, the officer, with the defendant's permission, listened to the telephone ringing. No one answered.

During the booking procedure, the patrolman who drove the defendant and the arresting officer to the police station entered the booking area and told the booking officer, "This all started over putting out the trash." The defendant then said that the victim called him an obscene name and a "child molester." The defendant stated that when he heard that he saw a lot of "colored lights."

The officer then directed two other officers, one of whom was the arresting officer, to take the defendant to the detective's room, where they remained for three hours. The defendant did not speak to the officers during this time. The arresting officer said that on the night of the crime the defendant did not appear nervous, and he did not appear to have had anything alcoholic to drink. The officer said that the defendant looked the same in the courtroom as he had on the night of the crime.

The police searched the house for the murder weapon for approximately forty-five minutes before an officer found a zippered pouch containing a small handgun and other related items in a covered wicker basket near the front door. ⁵ The police also recovered twenty discharged cartridge casings from the living room, and eighteen spent bullets were removed from the victim's body during the autopsy. A ballistician concluded that the discharged casings found in the bag and in the living room, as well as the spent bullets removed from the victim's body, ⁶ all were fired from the same weapon. He also stated that the gun must be reloaded after seven shots.

The heart of the defense was the presentation of three psychiatric experts who all testified that the defendant was not criminally responsible for his conduct on September 23, 1978, and that he suffered from schizophrenia, paranoid type, a serious mental illness. The defense presented the defendant's extensive history of mental illness, including some thirty prior psychiatric hospitalizations, spanning over twenty years. Based on the defendant's history of mental illness and the defendant's description of his mental state at the time of the murder, each doctor concluded that the defendant was not criminally responsible for his acts on September 23, 1978. Each doctor was of the opinion that Lunde lacked both substantial capacity to appreciate the wrongfulness of his conduct, and substantial capacity to conform his conduct to the requirements of the law.

1. Motion for a required finding of not guilty. At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty of murder and all lesser included offenses. This motion was denied, and the defendant objected to its denial. On appeal, the defendant does not argue that the Commonwealth had not presented sufficient evidence by the close of its case-in-chief to warrant submitting the case to the jury for determination. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979); Commonwealth v. Kelley, 370 Mass. 147, 150 & n. 1, 346 N.E.2d 368 (1976). Rather, he claims that the Commonwealth's proof on the issue of criminal responsibility deteriorated between the time the Commonwealth rested and the close of all the evidence, see Commonwealth v. Amazeen, 375 Mass. 73, 80 n. 5, 375 N.E.2d 693 (1978); Commonwealth v. Kelley, supra, and therefore the judge erred in denying his motion for a required finding of not guilty by reason of insanity at the close of the evidence. ⁷

The defendant claims that the unanimity of the three psychiatric opinions, coupled with the defendant's twenty year history of mental illness, required the judge to order entry of a required finding of not guilty by reason of insanity at the close of all the evidence. ⁸ The short answer to the defendant's argument is that the law "does not give the opinions of experts ... the benefit of conclusiveness, even if there are no contrary opinions introduced at the trial." Commonwealth v. Smith, 357 Mass. 168, 178, 258 N.E.2d 13 (1970). "The jury need not accept uncontradicted expert testimony that the defendant was insane at the time of the murder." Commonwealth v. Shelley, 381 Mass. 340, 347, 409 N.E.2d 732 (1980). Commonwealth v. Gould, 380 Mass. 672, 679, 405 N.E.2d 927 (1980). Commonwealth v. O'Brien, 377 Mass. 772, 779-780, 388 N.E.2d 658 (1979). Commonwealth v. Costa, 360 Mass. 177, 183, 274 N.E.2d 802 (1971). Commonwealth v. Ricard, 355 Mass. 509, 513-515, 246 N.E.2d 433 (1969). See People v. Spears, 63 Ill.App.3d 510, 518, 20 Ill.Dec. 445, 380 N.E.2d 423 (1978); People v. Stoddard, 48 Mich.App. 440, 447-448, 210 N.W.2d 470 (1973); State v. Hoskins, 292 Minn. 111, 137-138, 193 N.W.2d 802 (1972); State v. Rullo, 120 N.H. 149, 152, 412 A.2d 1009 (1980). Undoubtedly, the opinion of the experts permitted a conclusion that the defendant was not criminally responsible, but such a conclusion was not required.

The Commonwealth concedes that the defendant is mentally ill, but argues that the evidence is sufficient to support the jury's verdict. We agree. There was evidence that at the time of the crime the defendant was oriented as to time, place, and persons. See Commonwealth v. Cole, 380 Mass. 30, 35-36, 402 A.2d 55 (1980). The defendant had the capacity to refrain from shooting his nephew. The defendant had the murder weapon in the house and he hid it and the ammunition after the crime. Further, when the defendant spoke with the police, ⁹ he was coherent and calm. At ...