Com. v. Simpson

• Decision Date: 20 January 1998
• Docket Number: No. 96-P-1000,96-P-1000
• Parties: COMMONWEALTH v. Michael J. SIMPSON.
• Court: Appeals Court of Massachusetts

Page 824

689 N.E.2d 824

44 Mass.App.Ct. 154

COMMONWEALTH v. Michael J. SIMPSON.

No. 96-P-1000.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 17, 1997.

Decided Jan. 20, 1998.

Richard J. Shea, Boston, for defendant.

Geraldine C. Griffin, Assistant District Attorney, for the Commonwealth.

Before KASS, FLANNERY and SPINA, JJ.

KASS, Justice.

Insistent upon his sanity, the defendant, Simpson, conducted his own defense, aided by "stand-by" counsel. A jury found him guilty, among other things, of mayhem and of assault with a dangerous weapon with intent to murder. ¹ Simpson's appeal, as briefed, is susceptible of summary disposition in the Commonwealth's favor (see the Appendix to this opinion), but the record raises grave questions whether Simpson was mentally competent to stand trial and competent to assist in (let alone manage) his defense. We decide, particularly on the basis of what Simpson said in his opening statement, his cross-examination of the Commonwealth's principal witnesses, and his closing argument, that his competence to stand trial or conduct his defense was greatly in question and that, in the circumstances, the trial judge, on his own motion, should have conducted a competence hearing at which he would have received evidence from mental health professionals such as psychiatrists or psychologists.

That Simpson committed a savage assault is not in question. While the victim slept, Simpson struck her in the head with a hammer. Fortunately awakened rather than rendered unconscious, the victim jumped from her bed and saw Simpson with the hammer up, ready to strike again. Simpson switched weapons to a buck knife he was in the habit of carrying. With that he stabbed the victim several times in the neck and finished his work by slashing her left cheek from her ear almost to her mouth. At his trial, Simpson said that he had acted in self defense.

The victim and Simpson were well known to one another. Indeed, they had lived together for some months in the victim's home. The victim had come to the conclusion that Simpson could not get a grip on a complex of personal problems and had ordered him out. On the day he was supposed to leave, Simpson spoke morosely of his "last supper." The attack occurred later that night.

Simpson's first counsel raised the question of his mental competence at a pretrial conference on May 25, 1993. In response to counsel's request, the Superior Court judge who presided at the pretrial conference, acting under G.L. c. 123, § 15(a ), ordered that Simpson undergo an evaluation as to whether he was competent to stand trial. The psychiatrist who examined Simpson reported her opinion that Simpson "may well be suffering from a paranoid delusional disorder." It was also her opinion that Simpson was "not presently competent to stand trial or to represent himself in court." She recommended further evaluation under G.L. c. 123, § 15(b ), at Bridgewater State Hospital (Bridgewater), and the judge so ordered. Simpson declined to cooperate with the two forensic psychologists at Bridgewater who attempted to evaluate him, and they reported themselves as unable to offer a clinical opinion about his mental status.

Simpson came before a second Superior Court judge on October 4, 1993. While at Bridgewater, Simpson had fired his lawyer because that lawyer had urged the mental status examinations, notwithstanding Simpson's consistent declarations that he was sound as a bell. New counsel attended the October 4 proceedings but took no position at the time on behalf of Simpson on the competence issue. The second Superior Court judge smelled trouble and recommended that another psychiatrist--one who has on varying occasions been employed by the Commonwealth and by defendants--examine Simpson and make a mental competence evaluation.

No such examination took place. On December 7, 1993, the case came before a third Superior Court judge. Neither new defense counsel nor the prosecutor informed the judge about Simpson's mental status history or what the preceding judges had ordered. Indeed, in what was not his finest hour, defense counsel told the judge, "I don't think there is any question about competency and I can state for the record, I believe Mr. Simpson, insofar as competency to understand in the trial process, is fine." Simpson told the judge that he had been "railroaded to Bridgewater for evaluation to represent [him]self." The upshot of the December 7 proceeding was that the case was continued.

When the case came on for trial on May 31, 1994, before a fourth Superior Court judge, once again neither prosecutor nor defense counsel mentioned the mental status evaluation history. Neither told the judge that the defendant's competence to stand trial and to engage in his defense was, or had been, in question, although Simpson himself adverted to "being sent to Bridgewater for evaluation--under what grounds I don't know." Simpson declared that he desired to present his defense pro se, although he would have the assistance of Mr. Daniel Solomon as stand-by counsel. Mr. Solomon was to sit at counsel table and come to sidebar and lobby conferences. After explaining to Simpson that he would have to call and examine his own witnesses, would have to conduct cross-examinations, and would be the only one to have a speaking role before the jury, the judge further probed into whether Simpson understood what he was taking on in acting pro se. Simpson was alert and outwardly rational in his responses. Asked about whether he had ever suffered from mental illness, Simpson answered "no" and as to his current state said, "I have no such illness, your Honor." He denied taking any medication (except Tylenol for occasional headaches) and denied current consumption of drugs or alcohol. As to the charges against him, Simpson demonstrated understanding and, indeed, when asked by the judge if he understood that the indictment of mayhem carried a maximum ten-year penalty, Simpson responded, correctly, "I believe it's twenty years, your Honor." As the judge explained the trial process, Simpson again manifested that he was well-read, well-briefed, or both. For example, the judge asked:

"And do you understand that in this case, fourteen jurors will be selected from among the jury group or panel of proposed jurors, and the fourteen jurors will be the jury for the trial of your case?"

Simpson answered:

"Yes, your Honor, I believe that will be twelve jurors and two alternates."

On the basis of Simpson's apparently rational and informed responses, the judge--understandably--found that Simpson was "not presently suffering from any mental illness or condition." The judge also found that Simpson understood the charges against him, grasped the nature of what goes on in a trial, and that he "knowingly, willingly, and voluntarily has decided to proceed pro se, representing himself in this case, with the assistance of stand-by counsel."

A determination of competence to appear pro se is, however, distinct from the determination of competence to stand trial. See Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966); Godinez v. Moran, 509 U.S. 389, 400-401, 113 S.Ct. 2680, 2687-2688, 125 L.Ed.2d 321 (1993); Commonwealth v. Barnes, 399 Mass. 385, 388, 389, 504 N.E.2d 624 (1987); Commonwealth v. Wertheimer, 19 Mass.App.Ct. 930, 930-931, 472 N.E.2d 266 (1984). The trial judge made no express finding that Simpson had a rational and factual understanding of the proceedings, but that is not at all to be wondered at because the issue had not come up and the defendant, up to that point, had been acting rationally.

When the defendant made his opening statement, however, the trial judge must have begun to harbor some doubt about how rationally Simpson saw the world and his situation. Simpson addressed the jurors as follows:

"Now ladies and gentlemen, you've heard some very serious allegations here. And myself being the defendant and representing myself, I dispute these allegations vehemently. What you heard from the district attorney is some very exaggerated charges. The defense, the defendant, that's me, hereby invokes self-defense, abuse defense. This woman, the alleged victim, the Commonwealth's witness--the Commonwealth is prosecuting this case. The charges have not been pressed by my ex-girlfriend, the charges have been pressed by the Commonwealth. That is a crime against the State.

"This crime against the State is being supported by the Commonwealth's witness, my ex-girlfriend, who is a traitor, who is a Fem-Nazi, who doesn't even like men that much. She's a schizophrenic alcoholic and she should have her head examined. But she's a good enough witness to railroad my person. My person has been the victim of harassment and threats from the Waltham police, local landlords. I've been involved in tenants' organizations. I've been railroaded, jailed, beaten, deprived of my rights, claimed that I wasn't a resident while I was a registered voter. I've been fired for endless continuances on stupid little trespassing charges which wasn't even a legal criminal charge. And my ex-girlfriend got involved in this after our relationship started to crumble. And this woman turned and traitored on me and plotted with others my murder. And it turns out that it's evidently, there is evidently a scam that might have taken place during the time of my residence in Germany. I lived fifteen years in Germany, I served in the Air Force as a clerk in Germany. And I went back over there, I had a girl there and I went to school there, I lived and worked there.

"And it's come to my attention, it's been indicated to me by many means, open and veiled, that someone has been kiting some scams, a certain Mafia prostitute, cocaine-dependent Mafia prostitute, whose name has been on occasion mentioned to me. She has been kiting scams in my name. And that is the reason why the people have been harassing me, certain individuals, certain...