Com. v. Plant

• Decision Date: 06 May 1994
• Citation: 634 N.E.2d 896,417 Mass. 704
• Parties: COMMONWEALTH v. Gary F. PLANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 896

634 N.E.2d 896

417 Mass. 704

COMMONWEALTH v. Gary F. PLANT.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Jan. 5, 1994.

Decided May 6, 1994.

Charles W. Rankin, Boston, for defendant.

John E. Bradley, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant appeals from convictions of aggravated rape and murder in the first degree and from the denial of his motion for a new trial. The jury found the defendant guilty of murder in the first degree by reason of extreme atrocity or cruelty and by reason of having killed in the commission of a felony punishable by life imprisonment (aggravated rape). While the appeal from the convictions was pending, the defendant moved in this court (see G.L. c. 278, § 33E [1992 ed.] ) for a new trial based on the claim that his trial counsel ¹ had furnished ineffective assistance by failing properly to investigate, and effectively to present at trial, an insanity defense. A single justice of this court remitted the motion for hearing and determination by the trial judge. After a hearing, the trial judge denied the defendant's motion, explaining his decision in a full memorandum. We affirm the convictions and the order denying the motion for a new trial.

We summarize the judge's findings in reference to the new trial motion. On May 16, 1985, a young woman's body was found in a secluded area in Middleborough. The young woman had been raped. Her neck had been slashed and her head had been struck with a blunt object. She had been stabbed in the abdomen. By May 22, an intensive investigation led the police to the defendant, who submitted to a lengthy interview at the Middleborough State police barracks. The defendant was arrested three days later. He was taken to the State police barracks, given the Miranda warnings and questioned. The judge found that "the interview was video-taped and in the course of it the defendant made some very damaging admissions, amounting to a confession." Following his arrest, the defendant was evaluated at Bridgewater State Hospital for competency to stand trial and criminal responsibility. "[T]he authorities at Bridgewater reported that he was both competent to stand trial and criminally responsible." ²

"While the defendant was at Bridgewater," the judge found, trial counsel "contacted Dr. Martin Kelly of Boston whom he knew to be an eminently qualified forensic psychiatrist and asked him to examine the defendant. Dr. Kelly did so. He reported orally to [trial counsel] that he did not believe the defendant had a viable defense of lack of criminal responsibility. After receiving that report [trial counsel] concentrated his efforts on attempting to raise a reasonable doubt that the defendant had committed the crimes."

According to the findings, trial counsel moved to suppress the defendant's statements to the police and some materials they had seized pursuant to search warrants. A hearing was held in April, before another Superior Court judge. At the close of that hearing, the Commonwealth moved, pursuant to Mass.R.Crim.P. 14(b), 378 Mass. 874 (1979), for an order requiring the defendant to disclose whether he intended to rely on a defense of lack of criminal responsibility. That motion was allowed and then, according to the findings, "[i]n response to a question by [the judge], [defense counsel] stated that he had had the defendant examined by a psychiatrist and as things then stood he did not inten[d] to rely on a defense of diminished capacity. [The judge] suggested that the issue should be further explored." As a result of that suggestion, defense counsel moved for authorization to employ a psychiatrist, Dr. John E. Snell, to examine the defendant at the Commonwealth's expense. In an affidavit in support of the motion, counsel stated that the defendant lacked sufficient funds to afford a psychiatrist to determine criminal responsibility and competency to stand trial. That motion was allowed.

We continue with our recitation of the findings relative to the motion for a new trial. After two interviews with the defendant, Dr. Snell wrote to defense counsel. He told counsel that the defendant had told him about his having suicidal tendencies for several years, that the defendant denied any knowledge of the offenses with which he had been charged, saying that on that night he had been walking around trying to kill himself and had one of his episodes of amnesia, and that he had been having hallucinations of dead friends talking to him. Dr. Snell concluded that the defendant was suffering from a thought process disorder which he diagnosed as schizophrenia, undifferentiated type. He stated that the defendant was competent to stand trial and then added the following paragraph:

"With reference to his emotional and mental state at the time of the crime, it is difficult to be as precise as would be desirable in a situation such as this, where the patient denies any recollection of a period of time which allegedly encompasses the time of the crime. It does seem from the evidence available, however, that the patient had been mentally ill for a considerable time before the time in question, that he had been particularly ill in the hours before that time (intensely suicidal), that he had suffered an amnesic period during a period of time which may be close to the time of the crime. I would feel, therefore, that at the time of the crime the patient was suffering from an exacerbation of a chronic schizophrenic illness which would be expected to diminish his capacity to form intent with respect to his actions. If further specific reference to my opinion concerning his mental state at the time of the crime is desired, particularly with reference to criminal responsibility (lack of substantial capacity), I would be happy to comment further."

The judge found that defense counsel "interpreted Dr. Snell's report as meaning that the doctor was of the opinion that the defendant suffered from a diminished capacity (specifically a diminished capacity to form an intent with respect to his actions) at the time of the crime, but was unable to state that he lacked criminal responsibility under the standards of Commonwealth v. McHoul, [352 Mass. 554, 226 N.E.2d 556 (1967) ]. On June 10, 1986, he filed with the court a notice that the defendant intended to introduce evidence at the trial of his case of his '[d]iminished [c]apacity' at the time of the offenses charged in the indictments."

The judge's findings continue:

"After receiving the notice the prosecutor retained the services of another psychiatrist, Dr. Malcolm Porteous Rogers, to examine the defendant and to perform a psychiatric evaluation with regard to his mental state at the time of the crimes. Dr. Rogers reviewed the defendant's records and interviewed him on July 17 and August 11, 1986. He then filed a sealed report with the court in accordance with the provisions of M.R.Crim.P. 14(b)(2)(B)(iii).

"On June 27, 1986, [the judge] filed a Memorandum of Decision with regard to the defendant's motion to suppress evidence. He found that the defendant's statements of May 22 and May 25 were both given willingly and voluntarily and after a knowing and intelligent waiver of his constitutional rights. With regard to the interview of May 25 he wrote: 'It is abundantly clear that the defendant's decision to waive his constitutional rights on May 25 was the product of an intelligent and knowing mind ...' With regard to both interviews he wrote further: 'I specifically find that on May 22 and May 25, 1985 the defendant was fully and competently informed of his constitutional rights and that he made a knowing, intelligent and voluntary waiver of said rights, which was the product of a free, willing and rational intellect ...' The defendant's motion to suppress his statements and the materials seized under the search warrants was denied."

In his memorandum of decision, the judge described the pertinent occurrences at the trial as follows. After the Commonwealth rested on the tenth day of trial, defense counsel told the jury in his opening that he would offer expert testimony concerning the defendant's mental condition when the crimes were committed and when he was interviewed by the police. As a result, the judge made copies of Dr. Rogers's report available to the prosecutor and defense counsel. The judge states:

"Dr. Snell testified late in the afternoon of September 17. He described his two interviews of the defendant and what the defendant had told him about his suicidal tendencies and his hallucinations. He opined that the defendant was very seriously mentally ill and presumably had been for several years. He opined specifically that in May of 1985 he was suffering from schizophrenia and that it was in a particularly severe stage at that point. He testified that as a result of that mental disorder his ability to make a voluntary, knowing and intelligent statement to the police was substantially impaired. He indicated that the defendant was highly susceptible to suggestion at the time of his interviews, and stated that in his circumstances he would have said anything at all that was required of him. When court was adjourned for the day Dr. Snell had not yet completed his direct examination.

"On the following morning, before the testimony continued, I called a side bar conference to inform counsel as to how I hoped to schedule the remainder of the trial. In the course of that conference I pointed out to [the defense attorney] that Dr. Snell had testified that the defendant was mentally ill but that there had been no claim of lack of criminal responsibility. I told him that I presumed that had been a deliberate decision on his part and asked him if he would like to put his reasons on the record. He replied that he had not been informed by Dr. Snell until after the trial started that there was a possible defense of...