Com. v. Prendergast

• Decision Date: 25 March 1982
• Citation: 385 Mass. 625,433 N.E.2d 438
• Parties: COMMONWEALTH v. Bradford W. PRENDERGAST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 438

433 N.E.2d 438

385 Mass. 625

COMMONWEALTH v. Bradford W. PRENDERGAST.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 9, 1981.

Decided March 25, 1982.

Joseph J. Balliro, Boston (Julie Ann Balliro, Chelsea, with him), for defendant.

Charles J. Hely, Asst. Dist. Atty. (Carmen Picknally, Asst. Dist. Atty., with him), for the Commonwealth.

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

ABRAMS, Justice.

The defendant Bradford W. Prendergast was convicted of murder in the first degree for the December 20, 1979, slaying of Patricia Gilmore. At trial, the defendant acknowledged that he killed the victim, but he asserted that he was not criminally responsible. The jurors rejected the defendant's claim that he was not criminally responsible and returned a verdict of guilty of murder in the first degree. ¹ On appeal, the defendant argues error concerning (1) the empanelment of the jury; (2) the denial of a motion for a mistrial based on the prosecutor's conduct; (3) the denial of a motion for a mistrial based on the prosecutor's summation; and (4) the judge's instructions. Finally, the defendant argues that "justice and fairness demand that (he) be granted a new trial." G.L. c. 278, § 33E. We affirm the defendant's convictions. We conclude that there is no reason to exercise our power under G.L. c. 278, § 33E.

1.A. Jury empanelment. The defendant asserts that prejudice against the defense of lack of criminal responsibility is as pervasive as racial prejudice and thus "there (is) a substantial risk that the jury (was) influenced by extraneous issues." Commonwealth v. Sanders, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1235, 1237-1238, 421 N.E.2d 436. In light of this risk, the defendant claims error in the refusal of the trial judge to pose the following question to potential jurors: "If the evidence presented warrants a finding that the defendant is guilty of murder and the evidence further warrants a finding that the defendant had a mental disease at the time of the alleged crime, and as a result of this mental disease, he did not have substantial capacity to conform his conduct to the requirements of law, have you any opinions that would prevent you from finding the defendant not guilty by reason of insanity?"

To support his argument, the defendant relies on thirteen newspaper articles. Only four of these articles appeared prior to the empanelment. Although all four articles mentioned Prendergast, only one discussed the issue of criminal responsibility. The defendant's evidence does not show a substantial risk of juror bias against the defense of lack of criminal responsibility.

"(W)e are not prepared to assume ... that there is such widespread prejudice against psychiatrists and the concept of criminal irresponsibility as to mandate pretrial inquiry on these subjects. See Commonwealth v. Ricard, 355 Mass. 509, 511-512, 246 N.E.2d 433 (1969). Absent some reason to suspect that the jurors may be so prejudiced, see Commonwealth v. Campbell, 378 Mass. 680, 696, 393 N.E.2d 820 (1979), a judge is warranted in relying upon his final charge to the jury to purge any bias from the jurors prior to their deliberations." Commonwealth v. Estremera, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 941, 947, 419 N.E.2d 835.

Further, the judge inquired of each potential juror as to his or her knowledge of the case, if any, from the media. He also asked each potential juror whether he or she had the ability to consider psychiatric testimony impartially. In response to these questions some potential jurors admitted that they would be biased against finding the defendant not guilty by reason of insanity. The judge excused those jurors. ² Moreover, if the judge received an answer which he or either party regarded as equivocal, the judge would ask additional questions. ^{3 3} Finally, throughout the empanelment, the judge excused several jurors whose answers were "marginal" so that the defendant could conserve his peremptory challenges. Thus, we conclude that the judge did explore each potential juror's view on the subject of criminal responsibility, although he did not ask the precise question suggested by the defendant. "The judge has broad discretion as to the questions to be asked, and need not put the specific questions proposed by the defendant." Commonwealth v. Sanders, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1235, 1239, 421 N.E.2d 436.

We do not require as a matter of law that questions be directed at discovering bias against the defense of lack of criminal responsibility "in every case involving testimony by psychiatrists and the defense of insanity." Commonwealth v. Estremera, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 941, 947, 419 N.E.2d 835, quoting from Commonwealth v. Killelea, 370 Mass. 638, 649-650, 351 N.E.2d 509 (1976). Nevertheless if the defendant shows that there is a "substantial risk that the jury would be influenced by extraneous issues," Commonwealth v. Sanders, --- Mass. ---, Mass.Adv.Sh. (1981) 1235, 421 N.E.2d 436, 1237-1238, the judge should ask questions aimed at discovering those factors.

B. Capital punishment. The defendant claims that the judge wrongfully excluded five jurors opposed to capital punishment. The defendant asserts that the exclusion of these five jurors produced a jury that favored the prosecution. ⁴ We disagree.

At the time of the defendant's trial, St.1979, c. 488, had not been declared unconstitutional. See District Attorney for the Suffolk Dist. v. Watson, --- Mass. ---, Mass.Adv.Sh. (1980) 2231, 411 N.E.2d 1274. There was therefore a possibility that the defendant might be sentenced to death. In these circumstances, there was no error in the judge's asking prospective jurors if they had a "belief, philosophy, state of mind or opinion, which would prevent (them) from making a recommendation, either to impose the death penalty or not to impose the death penalty." See Commonwealth v. Curry, 368 Mass. 195, 203-204, 330 N.E.2d 819 (1975); Commonwealth v. Ladetto, 349 Mass. 237, 245, 207 N.E.2d 536 (1965). The five potential jurors who were excluded all indicated that they would not recommend the death penalty in any circumstance. In addition, the judge declared indifferent one juror who was generally opposed to capital punishment. We, therefore, are not persuaded that the exclusion of the five jurors in this case deprived the defendant of a jury that could fairly and objectively determine his guilt or innocence. ⁵

2. Motion for a mistrial based on prosecutorial conduct.

The defendant claims that the judge erred in denying the defendant's motion for a mistrial based on what he perceives as prosecutorial errors: (1) the prosecutor's objections to the admission of a psychologist's opinion in a medical record; (2) the prosecutor's question concerning the opinion of a psychiatrist in a medical record; and (3) the prosecutor's redirect examination of the Commonwealth's psychiatrist. We conclude that there is no error.

A. Objection to psychologist's opinion in a medical record. The defendant claims that during the trial the prosecutor unfairly sought to diminish the importance of an opinion of a psychologist in a medical record. The psychologist was the deputy medical director of the Massachusetts Correctional Institution at Bridgewater. In a report, dated August 16, 1979, the psychologist wrote that the defendant is "mentally ill" and that failure to hospitalize (this patient) in strict security would constitute a likelihood of serious harm ... to at least one potential victim and to himself. " In the presence of the jury, the prosecutor objected to a "psychologist making a medical opinion. It is not competent, practicing medicine without a license. " The defendant objected and the judge sustained the objection. The judge immediately instructed the jury to disregard the prosecutor's remarks. ⁶ The judge acted promptly to neutralize the prejudicial effect, if any, arising out of the prosecutor's statement. " (W)e shall not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration. " Commonwealth v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901 (1970).

B. Question concerning psychiatrist's opinion in a medical record. The defendant claims that a portion of the redirect examination of the prosecution's expert on criminal responsibility was unfairly prejudicial. Specifically, the defendant objects to the following questions by the prosecutor: "(D)id you receive any information that causes you to change your opinion as to criminal responsibility ...?" "Did you, in fact, determine (whether a doctor had an) opinion as to the criminal responsibility of Bradford Prendergast." The defendant claims that these questions incorrectly suggested that two doctors had concluded that Prendergast was criminally responsible. ⁷

At trial, the judge sustained the defendant's objections to these questions. The Commonwealth's expert was not allowed to answer these questions. Further, the prosecutor did not even finish the question about the doctor. This incomplete question gave the jury no idea of the doctor's opinion. ⁸ We conclude that the judge's action in promptly sustaining the defendant's objection was sufficient to neutralize any possible prejudice. There was no error in denying the defendant's motion for a mistrial.

C. Redirect examination of the Commonwealth's expert. The defendant's final point challenges the prosecutor's redirect examination of the Commonwealth's expert. The Commonwealth's expert rejected the opinion of the chief psychiatrist at Lemuel Shattuck Hospital (the defendant's expert) that the defendant was unable to conform his conduct to the requirements of the law on December 20, 1979. On cross-examination, defense counsel asked the Commonwealth's expert if he had taken the defense expert's opinion into consideration when he...