Com. v. Trapp

• Decision Date: 31 July 1996
• Citation: 668 N.E.2d 327,423 Mass. 356
• Parties: COMMONWEALTH v. Randall W. TRAPP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 327

668 N.E.2d 327

423 Mass. 356

COMMONWEALTH v. Randall W. TRAPP.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 8, 1996.

Decided July 31, 1996.

Charles W. Rankin, Boston, for defendant.

David W. Cunis, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and FRIED, JJ.

LIACOS, Chief Justice.

In October, 1987, a Middlesex County jury returned a guilty verdict against the defendant, Randall W. Trapp, on an indictment charging murder in the first degree. The defendant had been retried after we overturned his initial conviction on the ground that improperly admitted character evidence caused prejudice. See Commonwealth v. Trapp, 396 Mass. 202, 485 N.E.2d 162 (1985).

The evidence regarding the homicide itself and identification of the perpetrator was substantially the same at both trials. On the evidence submitted at the second trial, the jury could have concluded that Trapp encountered one Lawrence Norton at a bar in Boston on the night of May 7, 1981. Trapp accompanied Norton to a house in Stoneham where Norton lived as a tenant. In the early morning hours of May 8, 1981, Norton's landlord, who lived downstairs in the same house, heard a loud thump emanating from Norton's bedroom. Soon thereafter a man wielding a knife and covered in blood, whom the landlord identified as Trapp, burst into the landlord's apartment. Trapp demanded the landlord's money and automobile keys. The landlord complied. The landlord, against his will, accompanied Trapp to the landlord's mother's automobile, but then was able to escape to a neighbor's house. Trapp fled in the automobile.

The landlord called the police, and on returning to his home, he and the police subsequently found Norton dead, lying in a pool of blood in his bedroom, stabbed eighteen times. Shortly after the time of the killing, a gasoline station attendant saw Trapp, covered in blood, in the stolen car. ¹ Police later located the landlord's mother's automobile and found evidence that Trapp had driven it in his flight. Police arrested Trapp on May 26, 1981. ²

The second trial centered around the prosecution's ability to prove that Trapp was criminally responsible for his actions at the time of the homicide. The seven-day trial included testimony by seven experts on the issue of the defendant's criminal responsibility, four for the defense and three for the prosecution. The defense also presented the testimony of several lay witnesses who had known Trapp before the killing. These lay witnesses described Trapp's allegedly bizarre behavior on other occasions prior to the homicide. The jury deliberated for two days, asked one question during that time, and returned a special verdict finding Trapp guilty of murder in the first degree based on extreme atrocity or cruelty.

1. Right to counsel at Blaisdell interview. When a criminal defendant notifies the Commonwealth that criminal responsibility will be contested at trial, the Commonwealth may have an expert interview the defendant with respect to criminal responsibility issues. See Mass.R.Crim.P. 14(b) (2)(B), 378 Mass. 874 (1979); Blaisdell v. Commonwealth, 372 Mass. 753, 767-769, 364 N.E.2d 191 (1977). Prior to the examination, Trapp requested that his counsel be present during that interview. He asserts that the judge's denial of that motion violated his right to assistance of counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution.

The Sixth Amendment provides a right to counsel at every "critical stage" of the criminal process, and so a person accused has that right at postarraignment line-ups, but not at postarraignment photographic identification sessions. Compare United States v. Wade, 388 U.S. 218, 236-237, 87 S.Ct. 1926, 1937-1938, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 269-272, 87 S.Ct. 1951, 1954-1957, 18 L.Ed.2d 1178 (1967), with United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619 (1973). In Commonwealth v. Delaney, 404 Mass. 1004, 1004-1005, 537 N.E.2d 141 (1989), we expressly left open the issue whether a Blaisdell interview is a critical stage requiring that a videotape of such an interview be made. We did not consider the right of counsel to be present at the interview. Cf. Estelle v. Smith, 451 U.S. 454, 470 n. 14, 101 S.Ct. 1866, 1876-1877 n. 14, 68 L.Ed.2d 359 (1981) (expressly reserving this issue). See also the exhaustive analysis in United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984) (en banc) (plurality opinion). Although the decision to undergo psychiatric evaluation is a critical stage, see Estelle v. Smith, supra at 470, 101 S.Ct. at 1876-1877, the interview itself is not. Byers, supra at 1118-1121. We accept this view.

Trial counsel requested only that he be physically present at the interview. The alternative of videotaping such interviews was not raised at trial. While we agree with the Byers plurality that videotaping might be a sound idea, this issue is not before us. See id. at 1121. Cf. Commonwealth v. Diaz, 422 Mass. 269, 271-273, 661 N.E.2d 1326 (1996) (videotaping of prearraignment custodial interrogations); Commonwealth v. Fryar, 414 Mass. 732, 742 n. 8, 610 N.E.2d 903 (1993) (same). When individual circumstances warrant, criminal defendants remain protected by the judge's discretion to allow defense counsel to attend the Blaisdell interview, or to require videotaping. See Delaney, supra at 1005, 537 N.E.2d 141. There is no abuse of that discretion shown, and, hence, no error.

2. Instructional Errors.

a. Criminal responsibility. Trapp's appellate counsel assigns error to the judge's instructions regarding criminal responsibility. In light of trial counsel's lack of objection to the charge, we examine any error pursuant to G.L. c. 278, § 33E (1994 ed.). We look to the entire charge, Commonwealth v. Torres, 420 Mass. 479, 490, 651 N.E.2d 360 (1995), and do not require trial judges to use any particular words in their instructions so long as they convey the legal concepts properly, id. at 484, 651 N.E.2d 360, citing Commonwealth v. Sinnott, 399 Mass. 863, 878, 507 N.E.2d 699 (1987).

The judge began his instruction entirely properly, reciting the definition of lack of criminal responsibility from Commonwealth v. McHoul, 352 Mass. 544, 547, 226 N.E.2d 556 (1967), and stating that the Commonwealth had the burden to prove beyond a reasonable doubt that Trapp was criminally responsible, see Commonwealth v. Kostka, 370 Mass. 516, 536-537, 350 N.E.2d 444 (1976). The judge then elaborated on these concepts, and on occasion used "finding language" that has the potential to reverse the burden of proof. See, e.g., Commonwealth v. Adorno, 407 Mass. 428, 430, 553 N.E.2d 942 (1990). Read as a whole this charge, however, was infused with and surrounded by proper statements of the allocation of the burden and the standard of proof. See Commonwealth v. Roberts, 423 Mass. 17, 18-19, 666 N.E.2d 475 (1996). See also Commonwealth v. Goudreau, 422 Mass. 731, 737-739, 666 N.E.2d 112 (1996) (model charge). There was no error.

b. Intoxication and third prong of malice. This case came to trial shortly after the decision of Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987). Counsel and the judge discussed the implications of that opinion, and the judge instructed the jury that any intoxication or drug use was relevant to premeditation, extreme atrocity or cruelty, and to the first two prongs of malice. While Trapp's direct appeal was pending, we decided Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498 (1991), holding that alcohol and drug consumption were relevant to the third prong of malice because alcohol and drug use can affect the subjective knowledge of the defendant. Id. at 296-299, 582 N.E.2d 498. Appellate counsel asserts that Trapp should have had the benefit of a Sama instruction.

Trial counsel did not object on this score, and so we look only for any substantial likelihood of a miscarriage of justice. The jury returned their verdict of murder in the first degree on the theory of extreme atrocity or cruelty, expressly rejecting a premeditation theory. This case is therefore not one in which error in a third-prong instruction is rendered harmless because a premeditation verdict makes clear that the jury did in fact base their verdict on the (properly instructed) first prong of malice. See, e.g., Commonwealth v. Judge, 420 Mass. 433, 441-442, 650 N.E.2d 1242 (1995); Commonwealth v. Wallace, 417 Mass. 126, 134-135, 627 N.E.2d 935 (1994). Nevertheless, on the facts here, with a victim stabbed eighteen times, it cannot be contended seriously that there was not either a specific intent to kill or specific intent to do grievous bodily injury. There was only the smallest iota of evidence that Trapp was intoxicated at all, and trial counsel argued intoxication and Trapp's mental state to the jury with respect to the extreme atrocity or cruelty theory. There is no substantial likelihood that a miscarriage of justice occurred.

c. Hunter error. Trapp cites our decision in Commonwealth v. Hunter, 416 Mass. 831, 837, 626 N.E.2d 873 (1994), and asserts that the judge's instructions defining extreme atrocity or cruelty were impermissibly vague. The judge did provide the jury with a list of "factors" to consider in deciding the issue of extreme atrocity or cruelty. Within that list, after describing some of the factors, the judge stated, "You may look to other evidence.... [S]ome of the other relevant and significant factors you should consider are...." After finishing a list of factors the judge concluded: "So in the final analysis, the issue is left for you to determine if the mode of inflicting death was so shocking as to amounts [sic] to extreme atrocity or cruelty." We evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the...