Com. v. Mutina

Citation323 N.E.2d 294,366 Mass. 810
PartiesCOMMONWEALTH v. Harry Joseph MUTINA.
Decision Date11 February 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

William P. Homans, Jr., Boston, for defendant.

Terence M. Troyer, Asst. Dist. Atty. (Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The defendant appeals pursuant to G.L. c. 278, §§ 33A--33G, from a conviction of murder in the first degree and from the denial of his motion for a new trial.

Briefly, the facts are these. Around midnight on March 16, 1971, the defendant approached Ruth Achorn on the front steps of her home as she returned from a date. He stared at Ruth and her companion for about a minute, then raised his hand and fired two shots. One shot hit Ruth and killed her. The defendant fled, disassembled the gun, and threw it in the woods. He was apprehended about an hour and forty minutes later at McLean Hospital, where he was found crouching in a corner. He was taken to the police station where he 'just grunted' in response to Miranda warnings and made no response to questions asked of him.

At trial, the prosecution offered no evidence regarding the defendant's mental capacity, relying instead on the 'presumption of sanity' and on the circumstances surrounding the crime. The defendant presented lay witnesses who testified as to their observations of the defendant from his childhood up to the date of the offense. In addition, he called two qualified psychiatrists and introduced medical records of his stay at McLean Hospital. Relevant portions of this testimony will be discussed where appropriate in the course of this opinion.

The defendant assigns as error the trial judge's refusal to give requested instruction no. 9, which would have explained to the jury the defendant's postverdict status if found not guilty by reason of insanity. 1 He further assigns as error the judge's denial of his motion for a new trial. We find no reversible error in either of these assignments. However, pursuant to G.L. c. 278, § 33E, the entire case is before us for consideration on the law and the facts, Commonwealth v. Bearse, 358 Mass. 481, 265 N.E.2d 496, (1970); Commonwealth v. Ransom, 358 Mass. 580, 266 N.E.2d 304 (1970), and we are required 'to consider the whole case broadly to determine whether there was any miscarriage of justice.' Commonwealth v. Baker, 346 Mass. 107, 109, 190 N.E.2d 555, 557 (1963); Commonwealth v. Ransom, supra, 358 Mass. at 583, 266 N.E.2d 304. On thorough examination of the transcript and record and pursuant to our power under § 33E, we conclude that the verdict was against the weight of the evidence, and we reverse the conviction.

We recognize, of course, that the obligations imposed by § 33E require our most serious deliberation before we disturb the verdict of a jury who heard the evidence and saw the witnesses. 'Regard for the public interest impels us to use with restraint our power under § 33E.' Commonwealth v. Williams, --- Mass. ---, ---, a 301 N.E.2d 683, 688 (1973). However, '(o)ur power to award a new trial without regard to technical rules of law should be exercised with primary focus on ultimate justice in the particular case. This means to us that we must concern ourselves primarily with the particular defendant and the particular facts.' Commonwealth v. Geraway, --- Mass. ---, ---, b 301 N.E.2d 814, 824, (1973). We turn to the particular facts which compel us to exercise this power in the instant case.

Although the fact is not mentioned in the briefs, there was testimony that the defendant is a young man with a history of mental illness on both sides of the family. He had been dating the deceased, Ruth Achorn, for a period from October, 1969, to July, 1970. At that time, the relationship began to deteriorate and Harry became very jealous and possessive. The testimony of Mrs. Mutina (Harry's mother) and Mrs. Achorn (Ruth's mother), both registered nurses, indicated that Harry's behavior changed markedly about this time. He began to complain about breathing difficulties and stomach pains. He appeared upset and withdrawn, ignored his work, and left the house in a shambles. He began to 'shadow' Ruth, and on one occasion slapped her. In November, 1970, he hit Ruth, dislocating her jaw.

About this time he began making bizarre statements; in his speech became thick and he was 'very quiet, very withdrawn, listless, pallid.' He became very secretive and quiet, while continuing to follow Ruth and to telephone her without speaking. Early in 1971 Harry was involved in a car accident near where Ruth lived, and two weeks later he was found in the Achorn house. When confronted, he told the Achorns he would never hurt 'Ruthie,' but was told he had already done so twice. Harry cried, and was advised to seek psychiatric help.

Shortly thereafter, Harry's parents arranged to have him taken to McLean Hospital where he was subsequently admitted. While at McLean, he refused visits from his parents and became very hostile. He was discharged from McLean against medical advice on March 3, 1971, and walked home through a snowstorm. After his return home, he screamed when spoken to, looked haggard and drawn, and continued to make bizarre statements.

Harry's father and a police lieutenant testified as to Harry's behavior after his arrest. He did not respond to questions and sat very rigid with his eyes closed tightly. He was asked what he had done with the gun, and after twenty minutes muttered 'woods, woods.' The remainder of the time he just sat with his head down, tense and stiff.

At the trial, the McLean Hospital records were admitted and they included a consultation note signed by Dr. Leff, a staff physician, giving a brief history of the defendant's life and family. The provisional diagnosis on admission was 'schizophrenic process, acute paranoid type,' with Dr. Leff's statement: 'I feel that the danger of loss of control of angry aggressive impulses is great and is recognized by the patient on some level.' On discharge, the McLean records showed a diagnosis of 'Passive-Dependent Personality with hysterical and paranoid features, unimproved.' Records of the Bridgewater State Hospital, to which the defendant was admitted on March 23, 1971, were introduced and showed various diagnoses, all of which included some mention of possible schizophrenia.

Two qualified psychiatrists testified for the defendant. The first was Dr. Leonard R. Friedman, who saw him at the Billerica house of correction the day after the shooting. His ultimate diagnosis was 'acute schizophrenic illness.' He stated that the defendant lacked substantial capacity to conform his conduct to the requirements of law on March 16--17, 1971, and that he lacked substantial capacity to appreciate the wrongfulness of his conduct on those dates. The doctor felt more strongly about the former than the latter view.

Dr. Friedman described the defendant's mental illness and explained how the events beginning July, 1970, were symptomatic of his disorder. Additionally, he explained that the McLean diagnosis of personality disorder was not inconsistent with his diagnosis, since the defendant was not medicated while at McLean and did not talk freely with the doctors there. His testimony was consistent with the observations of the lay witnesses, and in fact supported them.

Dr. Samuel Epstein, who was appointed by the court on motion of the Commonwealth, testified that the defendant 'is mentally ill with a schizophrenic disorder of insidious onset, (a)though the early manifestations were those of a passive-aggressive personality with paranoid trends.' He further stated that the defendant was suffering from this illness at the time of the shooting, and 'was not able to conform his conduct to that which he knew was wrongful (sic) by virtue of his mental disorder.' Dr. Epstein explained the basis for his conclusions and attempted to harmonize the McLean diagnosis. In his opinion, that diagnosis reflected an earlier stage of the defendant's illness, and was not inconsistent with his ultimate findings and conclusions.

In spite of a very detailed and skillful cross-examination, neither Dr. Friedman nor Dr. Epstein was shaken from his diagnosis as testified to in direct examination. Dr. Epstein did not retreat from his position, stating 'to me, it is fairly classical that this is the way insidious, paranoid schizophrenics develop and behave.' Dr. Friedman testified on cross-examination that, although the defendant had some capacity to appreciate criminality, it was '(v)ery little. That is, if a policeman was standing over his shoulder relating the law to him, it still wouldn't help.' He denied this was a borderline case, and in answer to the last question on cross-examinatin, 'Is it fair to say that you don't know how accurate your diagnosis is?' he answered, 'I will disagree with you because I have a very good idea about the accuracy of my diagnosis.'

The prosecution did not introduce any independent evidence bearing on the sole issue of criminal responsibility. It relied instead on the 'presumption of sanity,' 2 on its cross-examination of the defendant's witnesses, and on the circumstances surrounding the shooting. Commonwealth v. Ricard, 355 Mass. 509, 514, 246 N.E.2d 433 (1969).

General Laws c. 278, § 33E, provides that, in capital cases, this court may order a new trial where it is 'satisfied that the verdict was against the law or the weight of the evidence.' We are to exercise this power where, in our judgment, the verdict ". . . is so greatly against the weight of the evidence as to induce in . . . (our) mind(s) the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice." Commonwealth v. Gricus, 317 Mass. 403, 406, 58 N.E.2d...

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