Com. v. Mulica

• Decision Date: 09 March 1988
• Citation: 520 N.E.2d 134,401 Mass. 812
• Parties: COMMONWEALTH v. John K. MULICA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 134

520 N.E.2d 134

401 Mass. 812

COMMONWEALTH v. John K. MULICA, Jr.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Dec. 7, 1987.

Decided March 9, 1988.

Thomas G. Shapiro, Boston, for defendant.

Robert J. Bender, Asst. Dist. Atty., for Com.

Before WILKINS, LIACOS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant was convicted of embezzlement from the Newburyport Five Cents Savings Bank (bank), of procuring a bank employee fraudulently to convert money of the bank, and of aiding that bank employee to falsify bank records, in violation of G.L. c. 266, §§ 52 and 53A (1986 ed.). On appeal, the defendant contends that supplemental jury instructions concerning criminal responsibility and the exclusion of certain documentary films constituted reversible error. We transferred the case to this court on our own motion and now reverse his judgments of conviction and order a new trial.

1. Criminal responsibility. A cash audit of the bank in December, 1982, disclosed a shortage of $204,000. The defendant, who had recently resigned as a vice-president and a trustee of the bank, was charged with taking the money. The defendant testified on his own behalf and admitted his role in taking the funds during a period spanning approximately October, 1980, to December, 1982. However, he presented evidence of lack of criminal responsibility which he contended was attributable to a mental condition known as post- traumatic stress disorder (PTSD). ¹ To place the issues before us on appeal in their proper context, we relate the evidence offered to support the defense theory in some detail.

The defendant described particular combat experiences during his service as an eighteen-year-old Marine machine gunner in Vietnam in 1966 and 1967, which involved witnessing the gruesome deaths of numerous friends and fellow members of his company. A cousin with whom he was close also was killed. He further testified to sleep difficulties and recurrent memories and nightmares since his return from Vietnam, problems which intensified beginning in 1979. Also beginning around 1978, the defendant accumulated six to eight guns which he kept in his bedroom. Since resigning from the bank, the defendant had been treated with Thorazine, Stelazine, and Dalmane, and had been awarded disability benefits by the Veterans' Administration for PTSD. Of especial relevance to the issues on appeal, the defendant testified that he had spent the entire amount taken from the bank on daily gambling at The Yankee Greyhound dog track in Seabrook, New Hampshire. According to the defendant, he bet up to $2,000 a day. He described his experience while at the racetrack as one of being "back in the action ... a very hyped up intense feeling." He had begun gambling on a daily basis sometime around 1980.

Additional testimony by the defendant's life-long friends portrayed the defendant upon his return from Vietnam as a changed person who had become nervous, irritable, and agitated. His agitation apparently subsided, but reemerged in 1979 or 1980.

It was part of the defense theory that the defendant's emotional difficulties, as manifested in intensifying problems with agitation, sleeping, gambling, and drinking, were precipitated by his promotion in 1979 to bank vice-president and the particular psychological meaning this promotion held for him. The defendant's estranged wife testified that the defendant felt compelled to gamble and "would be really wound up" upon his return from the dog track. She further testified about his agitation, sleep difficulties, and the fact that through the fourteen years she was with the defendant, from 1968 to 1982, he slept with his eyes open and feet constantly tapping. Two employees of the dog track testified respectively that the defendant was "the strangest bett[o]r" who consistently bet in a manner that would ensure that he lost money and that he gave away money to various people at the track.

The defendant also presented two expert witnesses who diagnosed the defendant as suffering from PTSD and who explained how the above-noted constellation of behavior or symptoms was indicative of PTSD. They viewed these symptoms, as well as the defendant's embezzling, as manifestations of and attempts to manage emotionally overwhelming feelings resulting from his Vietnam experiences. Dr. John P. Wilson, a psychologist who has treated PTSD among many Vietnam veterans, testified that both the gambling and embezzling were expressions of self-destructive feelings stemming primarily from the psychological dynamics of survivor guilt and attendant feelings of depression and worthlessness. These dynamics, Dr. Wilson believed, led the defendant to embezzle and gamble self-destructively in order to be caught and punished. Dr. Wilson viewed the gambling as serving the additional psychological function of making the defendant feel intensely alive and aroused so as to ward off depression and recurrent images of his combat experiences.

Dr. Sheldon D. Zigelbaum, the defendant's treating psychiatrist since 1982 and a specialist in the treatment of PTSD, testified similarly that the defendant suffered from PTSD. He elaborated that the defendant's compulsion to gamble, which he viewed as a symptom of PTSD, served to recreate, in an unconscious attempt to finally gain relief from, the Vietnam experience of risk and danger. Dr. Zigelbaum viewed the defendant's embezzling also as an escalation of a pattern of risk-taking conduct previously evidenced by striving for promotions, speculating in real estate, maintaining an extramarital affair, and more moderate gambling. Both expert witnesses were of the opinion that the defendant lacked substantial capacity to restrain himself from taking the bank's funds as a result of PTSD.

In his opening statement, the prosecutor argued to the jury, inter alia, that the defendant began embezzling in October, 1980, "as a result of gambling." Accordingly, he cross-examined the defendant's expert witnesses in an apparent effort to discredit their diagnoses of PTSD and instead suggest to the jury that the defendant's embezzling, if related to any emotional defect at all, was related solely to a problem with compulsive gambling. ²

From Dr. Zigelbaum, the Commonwealth elicited testimony that the defendant met the diagnostic criteria for the separate DSM-III category for pathological gambling. On redirect examination, the witness clarified that individuals may descriptively meet the criteria for more than one diagnostic category but that the proper diagnosis depends upon an understanding of the underlying dynamics rather than the most immediate or florid symptoms.

The judge's initial instructions on criminal responsibility were in accordance with the defendant's requests and the law under Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967); the defendant did not object to that charge. ³ During the course of deliberations, however, the jury asked the question: "With regard to a plea of not guilty by reason of insanity, would pathological gambling be perceived by the law as a valid form of insanity?" A lengthy bench conference ensued in which the Commonwealth reiterated its position, arguably adopted by the judge, that pathological gambling was not, as a matter of law, a mental disease or defect causing inability to conform to the requirements of the law. The defendant urged reinstruction on the definition of mental disease or defect and the government's burden of proof, arguing that the expert witnesses' rejection of the particular diagnosis of pathological gambling, as applied to the defendant, did not preclude jury consideration of evidence about gambling in their deliberations regarding criminal responsibility. Ultimately, the judge advised the jury that he would not answer the question directly and gave the following supplemental instruction: "There is [in this case] a question whether the Government has proved beyond a reasonable doubt that the defendant was not, at the time of the embezzlement, which went on as you have heard, over a period of time, whether during that time, he was not suffering from a mental disease or a defect ... or that mental disease or defect was not the cause of his inability to conform his conduct to the law. Now, the issue in the case is whether that disease or defect was something called Post-traumatic Stress Disorder, the result of the Vietnam War experience. That is what the Government has undertaken to prove was not a mental disease or defect. In other words, that the defendant was not suffering from that mental disease or defect. Now, that mental disease or defect, like other ailments perhaps, if there was--if it was a mental disease or defect, might have different symptoms, different manifestations. So what you have to do is ask yourself, on the basis of the evidence, not on the basis of any guesswork, on the basis of a reasonable doubt that he was not suffering from a mental disease or defect? If you conclude that the Government has proved beyond a reasonable doubt that he was not suffering from a mental disease or a defect, you need inquire no further. If, and the fact that I am instructing you fully, is in no way to be taken as any suggestion of how I think you should or will decide the case, but it's my job to instruct you fully, if you conclude that he was suffering from a mental disease or a defect, then you will examine the evidence, and you will ask, did that mental disease or defect cause him to be unable to conform his conduct with the law? Now, I want to be very clear that you understand that the defendant doesn't have to prove that the mental disease or defect caused the inability to conform his behavior to the law. The question at that point is, has the Government proved that even though he may have had a mental disease or a defect, that mental disease or defect did not prevent him from conforming his conduct to the requirements of the law." (Emphasis...