Com. v. Monico

• Decision Date: 20 February 1986
• Citation: 396 Mass. 793,488 N.E.2d 1168
• Parties: COMMONWEALTH v. James MONICO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1168

488 N.E.2d 1168

396 Mass. 793

COMMONWEALTH v. James MONICO.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Dec. 3, 1985.

Decided Feb. 20, 1986.

Bruce N. Sachar, Lynn, (Vincent R. Brogna, Boston, with him), for defendant.

Robert J. Bender, Asst. Dist. Atty. (Thomas M. Niarchos, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS and NOLAN, JJ.

NOLAN, Justice.

On April 14, 1983, the defendant was convicted of murder in the first degree of James Mortellite and of murder in the second degree of Jeffrey Connors. We accept the defendant's argument that the trial judge committed reversible error in refusing to instruct the jury on the issue of the defendant's criminal responsibility in accordance with Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967). We address those issues that may recur at the new trial.

On December 24, 1981, the defendant, a security guard for the Wells Fargo Company, went target shooting with a friend and later attended a Christmas party. At the party, he temporarily placed his gun and holster in a tool box. The defendant and another friend went shopping and then to that friend's house, where the defendant placed his gun in a closet. At approximately 8 P.M., he retrieved the gun and left. Before leaving, the defendant telephoned his wife and asked her to make sure that the children did not go to bed before he arrived home, and stated that he would be home shortly.

That evening at the White Eagle Cafe, the defendant was seen asking various women to dance and was said to be "pest[ering]" them. The defendant was also observed "outstar[ing]" people. There were complaints to the bartender about the defendant, and she requested that the defendant leave.

A witness, Theodore Sullivan, who was present at the bar from approximately 9 A.M. on December 24, and who had been "sipping" beer throughout the day, observed the defendant standing with a knife in his hand. The blade of the knife was six to seven inches long. Sullivan knocked the knife out of the defendant's hand, retrieved the knife, and put it in his belt. The defendant was not observed making threatening gestures with the knife. Sullivan subsequently brought the knife home, misplaced it, and was unable to produce the knife at trial. The defendant never asked the witness to return his knife.

The defendant left the bar at one point and returned approximately forty-five minutes later. Again, he began "bothering" a woman, Sandra Stevens, who was in the company of the two victims.

At that point, one of the victims, James Mortellite, pushed the defendant against a wall, causing the defendant's head to strike a wall lamp, breaking the globe and bending the metal frame. The defendant then walked toward the exit door of the bar, turned to the victims and said, "If you're coming, come on." ¹ Other patrons told the defendant to close the door. The defendant left the bar followed by the two victims.

Several witnesses reported their observations of the events outside the cafe. The defendant, facing the two victims, was backing down ² the street alongside the cafe, and the three men were exchanging words. The victims, clad in t-shirts and jeans, were not carrying anything, although they were approaching the defendant and forcing him to back away. At some point the defendant pulled out his gun. One witness testified at trial that the defendant shouted, "Keep away--I have a gun and I'll shoot," and then one of the victims, who was taller than the defendant, aimed a karate-type kick toward the defendant's head. The defendant then fired a "warning" shot at the ground. A second witness testified that the warning shot came prior to the kick. After the first shot was fired, the two victims rushed the defendant. The defendant fired two more shots; one victim fell to the ground, and the other continued to brawl with the defendant. At that point in time, the defendant's back was close to a fence next to the club. Both victims died from the bullet wounds.

The police arrived on the scene shortly thereafter and observed the defendant standing with a gun in his hand. He stated to the police, "Here's the gun. I shot him. Here's the gun." The defendant was advised of his Miranda rights, and he indicated that he understood those rights. He appeared to be "very coherent," was bleeding slightly from his face and the back of his head, and had a mildly bloody nose. The defendant asked the police, "Did I kill him?" He was placed in custody, and enroute to the police station and for approximately forty-five minutes thereafter, the defendant made the following rambling statements to the police. He stated, (1) that "[h]e came after me, so I shot him. He went to his side for a gun, so I wasn't going to wait, so I blew him away"; (2) that a man came after him with "[h]is fist" and "[l]ook at my face"; (3) that he went to the cafe to have sex and that he had $15.00; (4) that the fight started because "[t]hey came down on me"; (5) that "[h]e came down on me; said--Monico, you're an [ ], you've got to leave"; (6) that "[h]e came at me with a handgun. I think his name is Richie Gaudet. ³ All of a sudden he attacked me for no reason. He was drunk. I thought he had a gun; it was a small revolver, a .32, maybe; [or a] Saturday night special." The defendant also told the police that he saw Gaudet pull a gun, so he "went for [his] automatic." The defendant stated that Gaudet threw a beer bottle at him from across the bar, pointed a gun at the defendant and ordered him outside, and that "[h]e came up with a [ ] gun, and I started blasting. Did I kill him or what? I hope the [ ] I did." He also stated to the police, "I wanted to kill the mother [ ], and put that in the report." The defendant also made reference to "niggers" who "attacked" him. Police officers testified that they observed no black persons at the scene. Also, the defendant mentioned that the persons who had attacked him were "Hell's Angels." He also claimed to have been assaulted by persons with baseball bats. No baseball bats were found in the area, although members of the group called "Hell's Angels" were seen present at the bar that night.

The defendant's father was called by the Lynn police, and when he arrived at the station, the defendant told him that "they" hit him from the back with a bat, "they were jumping [him]," and that "they had a gun." The defendant asked his father where he was. He then stated that the police had caused his injuries. On the way home (after being bailed), the defendant refused his father's advice that he go to a hospital for treatment, and stated that he had to go to work the next day. The following day was Christmas Day. The father testified that at the police station cuts beside and under his son's left eye were bleeding and that he had a cut under his chin; there was blood in the defendant's mouth and a large laceration on the back of his head.

The police testified that the defendant did not seem to realize that there was a second victim of the shooting. He did not mention the karate kick or his warning shot to the ground. ⁴

A friend of the defendant visited him three days after the shooting at the White Eagle Cafe, and observed that the defendant's lip was "bulged out," that he had a cut below and above his left eye, a gash on the back of his head, blood clotted in his hair, and discoloration around his left eye. The defendant had no memory of the night of the shooting except for his presence at the cafe, and he had a vague remembrance of a fight, and of his lawyer's presence at the police station. The defendant complained that his head hurt, and his friend observed that the defendant was "kind of spaced out [and] disoriented."

Three witnesses testified for the defendant in support of his insanity defense: Dr. Edwin B. Faulkner, a general practitioner, who examined the defendant on December 28, 1981, Dr. Roy Freeman, a neurologist, and Paul Spiers, a clinical neuro-psychologist. Their testimony is set forth in detail as the issues are discussed in this opinion.

1. Instructions on criminal responsibility under Commonwealth v. McHoul. The defendant filed a request that the judge charge the jury on insanity. The request was denied, and the defendant argues on appeal that the evidence was sufficient to raise a question of the defendant's criminal responsibility. We agree. In Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967), we set forth the standard for measuring a defendant's criminal responsibility. "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law." Id. at 546-547, 226 N.E.2d 556. Expert psychiatric testimony is not necessary to raise the issue of insanity as a complete defense. Osborne v. Commonwealth, 378 Mass. 104, 112, 389 N.E.2d 981 (1979). The issue may arise from the facts of the case, through the Commonwealth's witnesses, through lay testimony, or any combination thereof. Commonwealth v. Mattson, 377 Mass. 638, 644, 387 N.E.2d 546 (1979). "An insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning the defendant's criminal responsibility at the time of the [crime]." Commonwealth v. Laliberty, 373 Mass. 238, 246-247, 366 N.E.2d 736 (1977). We have noted that, once the defense has been raised by the evidence, the judge must instruct on it, if requested to do so. Id. at 244, 366 N.E.2d 736. The issue then is whether the evidence is sufficient to warrant a McHoul charge. See Commonwealth v. McInerney, 373 Mass. 136, 151-152, 365 N.E.2d 815 (1977).

The following testimony was presented to the jury which, taken as a whole, required an instruction under Commonwealth v. McHoul, supra. Dr....