Com. v. Schulze

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 452 N.E.2d 216,389 Mass. 735
• Parties: COMMONWEALTH v. Mark SCHULZE.
• Decision Date: 22 July 1983

Page 216

452 N.E.2d 216 389 Mass. 735 COMMONWEALTH
v.
Mark SCHULZE. Supreme Judicial Court of Massachusetts,
Middlesex. Argued Feb. 8, 1983.
Decided July 22, 1983.

Page 218

Brownlow M. Speer, Boston, for defendant.

Kevin J. Ross, Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Justice.

In this appeal, which is here on the defendant's application for further appellate review (Commonwealth v. Schulze, 14 Mass.App. 343, 439 N.E.2d 826 [1982] ), we conclude that relevant evidence concerning the defendant's lack of criminal responsibility was improperly excluded and that the defendant may have been significantly prejudiced thereby. We therefore reverse his convictions and order a new trial.

The defendant was convicted of crimes committed in the course of an attempted armed robbery of a Somerville pharmacy[389 Mass. 736] in September, 1979. The pharmacist activated a silent alarm, and the police surrounded the premises. The defendant and an accomplice, one Queeney, held the pharmacist, one of his employees, and some customers as hostages; the defendant negotiated with the police by telephone. As time passed and tension built, the defendant demanded drugs from the pharmacist and drank various codeine cough medicines. Gradually the defendant became groggy from the effects of the drugs; the pharmacist then disarmed him; and the police entered the pharmacy and arrested the defendant and Queeney.

The defendant's sole defense was that he lacked criminal responsibility for his acts. In circumstances we shall state more fully later in this opinion, the trial judge excluded proffered testimony from a general practitioner who had seen the defendant as a patient four days and ten days prior to the crimes. The defendant presented a qualified psychiatrist who testified that the defendant suffered from a "chronic characterologic depression" and that, at the time of the attempted robbery, the defendant was in an "acute toxic psychosis" resulting from his use of heroin earlier that day. The Commonwealth presented two psychiatrists who testified that the defendant did not lack criminal responsibility on the day of the attempted robbery. Represented by new counsel on appeal, the defendant challenges his convictions and the denial of his motion for a new trial.

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The defendant called as a witness Dr. Stanley Chin, a licensed general practitioner with about thirty years' experience, who testified that he saw the defendant as a patient on September 7, 1979, and again on September 13, 1979. ¹ When defense counsel asked Dr. Chin to tell what his examination and his treatment of the defendant consisted of, the prosecutor objected and a bench conference followed. The prosecutor spoke first stating that, as he understood the defense, it relied on an acute toxic psychosis that occurred on the day of the crimes and only on that day. He said he did [389 Mass. 737] not know what Dr. Chin could add. The following colloquy then occurred:

THE JUDGE: "What is he going to testify?"

DEFENSE COUNSEL: "Medical history."

THE PROSECUTOR: "He is not even a psychiatrist."

DEFENSE COUNSEL: "He is going to give an opinion as to his state those four or five days before."

THE JUDGE: "Is this man a psychiatrist, any psychiatric history?"

DEFENSE COUNSEL: "Just a general practitioner, your Honor."

THE JUDGE: "Sorry."

DEFENSE COUNSEL: "He gave him medication."

THE JUDGE: "Unless you can indicate to me he got qualifications to express an opinion as to this defendant's mental condition for criminal responsibility I will not allow him to testify."

DEFENSE COUNSEL: "If Your Honor pleases, with all due respect to your Honor, other evidence as to his mental responsibility--not his criminal responsibility, but his mental condition on previous occasions is admissible."

THE JUDGE: "What is he going to testify to?"

DEFENSE COUNSEL: "He will testify that he gave him one prescription, if your Honor please, one on each day for ten milligrams of Valium."

THE JUDGE: "That's all he's going to testify to?"

DEFENSE COUNSEL: "That's all."

THE JUDGE: "Excluded."

DEFENSE COUNSEL: "Note my objection."

The bench conference ended, and no further questions were put to Dr. Chin.

[389 Mass. 738] At the hearing on the defendant's motion for a new trial, Dr. Chin was not called as a witness. The parties stipulated that, if called, Dr. Chin would testify that he examined and treated the defendant at his office on September 7 and 13, 1979, that he advised the defendant to have a psychiatric consultation, and that his diagnosis was "[d]epression with anxiety and manic tendencies." Defense counsel knew the nature of this proposed testimony before trial.

The colloquy presents several problems. The final offer of proof--that Dr. Chin prescribed Valium on two occasions--does not justify reversal of the defendant's convictions. The exclusion of that evidence, even if relevant, was not of sufficient significance to constitute prejudicial or reversible error. Such a limited view of the offer of proof, however, may not be warranted because defense counsel had indicated earlier that Dr. Chin would testify as to the defendant's medical history and give an opinion as to the defendant's "state those four or five days before." If the offer of proof was deficient, the issue then becomes, as the defendant contended in his motion for a new trial, whether the defendant was thereby denied the effective assistance of counsel.

We agree with the judge's comment that Dr. Chin could not testify concerning the defendant's criminal responsibility. In this Commonwealth, in order to give an opinion on criminal responsibility, a physician must be more...