Com. v. Trapp

• Decision Date: 13 November 1985
• Citation: 485 N.E.2d 162,396 Mass. 202
• Parties: COMMONWEALTH v. Randall W. TRAPP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 162

485 N.E.2d 162

396 Mass. 202

COMMONWEALTH v. Randall W. TRAPP.

Supreme Judicial Court of Massachusetts.

Argued Sept. 9, 1985.

Decided Nov. 13, 1985.

Carlo A. Obligato, Committee for Public Counsel Services, Boston, for the defendant.

Karen J. Kepler, Asst. Dist. Atty., for the Com.

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

LIACOS, Justice.

The defendant, Randall W. Trapp, was indicted on October 20, 1981, for the murder of Lawrence (Larry) E. Norton, armed robbery of Norton's landlord, Donald L. Hutcheson, and larceny of Hutcheson's automobile. A jury found Trapp guilty of murder in the first degree, for which he was sentenced to life imprisonment, as required by G.L. c. 265, § 2 (1984 ed.), and armed robbery and larceny of a motor vehicle, for which he was sentenced to concurrent terms of fifteen to twenty years and five to ten years respectively. Trapp appealed his convictions and filed motions for a required finding of not guilty and for a new trial. The trial judge denied the motions. The defendant also has appealed from the denial of his motion for a new trial. ¹

There was evidence of the following facts. Norton paid rent to Hutcheson for two rooms in Hutcheson's house and for the use of common areas of the house. During the early morning of May 8, 1981 Hutcheson was awakened by noises from Norton's bedroom. Moments later, a man burst into Hutcheson's bedroom carrying a knife. Hutcheson testified: "He said to me: Get out of bed. I want your money and your car keys. And you're coming with me." As Hutcheson got out of bed, the man said, "You better have some money. Larry's upstairs dead." Hutcheson handed over $20 and the keys to his automobile. The two men left the house and walked to Hutcheson's automobile, parked on the street nearby. Though he knew that the automobile was unlocked, Hutcheson told the defendant that the defendant would have to unlock the door, since he had the keys. As the defendant switched the knife from his right hand to his left, Hutcheson seized the opportunity to escape and ran to a neighbor's house. The defendant chased him, but Hutcheson reached the neighbor's door, with the defendant fifty yards behind, and began pounding on the door. When the neighbor's light came on, the defendant turned and fled. Gaining entry to his neighbor's house, Hutcheson called the police.

The police officers responded, entered Hutcheson's house, and found Norton lying nude on the floor of his room, in a pool of blood, dead. Norton had been stabbed eighteen times. The police officers transmitted a description of the stolen vehicle over the police radio. The abandoned vehicle was located later that morning in Somerville. Three witnesses--Hutcheson, a bartender who had seen Norton with another man the evening of May 7, and a service station attendant who had seen Hutcheson's vehicle and had spoken to its driver at 3 A.M. on May 8--were able to select Trapp's photograph from an array shown them by police officers. A State police fingerprint expert identified a fingerprint found on the gearshift lever of Hutcheson's abandoned automobile as that of Trapp. A warrant was issued, and Trapp was arrested on May 26, 1981.

At his trial, Trapp raised a defense of insanity. He did not testify on his own behalf. Several witnesses testified about his deprived childhood and his troubled adolescence. They also testified about the abrupt and drastic behavioral changes Trapp exhibited in the twelve to eighteen months preceding the crimes. Four experts expressed opinions supporting the defense theory that the violent eruptive episode the night of May 7-8 was the result of a combination of organic abnormality in the part of the brain responsible for impulse control and memory, and of psychological stress brought on by his wife's deviant behavior. ² The defendant's evidence was that the organic abnormality which underlay the defendant's behavioral changes was caused by traumatic head injuries he suffered between 1978 and 1981.

On appeal, Trapp contends that (1) the judge committed reversible error and denied him a fair trial by permitting the prosecutor to introduce evidence of his character in the form of other bad acts; (2) the judge violated his right against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution by ordering that he furnish to the prosecutor scientific and medical records and reports containing privileged communications that were used against him at trial; (3) the judge committed reversible error by permitting the prosecutor to communicate to the jury that Trapp previously had been incarcerated; and (4) he was prejudiced by the substitution of judges during jury deliberation in violation of Mass.R.Crim.P. 38, 378 Mass. 916 (1979). He further argues that this court should exercise its power under G.L. c. 278, § 33E (1984 ed.), to grant a new trial or to direct the entry of a verdict of a lesser degree of guilt because of the judge's improper limitation of the testimony of one of the expert witnesses called by the defendant, and for a variety of other reasons.

We agree that the verdict must be overturned because of the admission of improper character evidence. Although we need not address the defendant's other contentions, Brennan v. Bongiorno, 304 Mass. 476, 478, 23 N.E.2d 1007 (1939), we discuss briefly three of his allegations of error, namely the evidence of prior incarceration, the order to produce scientific and medical records, and the limitation of expert testimony, because these issues may arise at a new trial. We also comment, in the interest of the orderly administration of justice, on the substitution of judges.

1. Admission of evidence of "bad acts." The judge permitted the prosecutor to introduce evidence that, four years before the murder of Larry Norton, Randall Trapp had told a psychiatrist that he was angry with his wife and that he longed to kill her and her boy friend. The judge also admitted as business records three Officer's Disciplinary Reports describing incidents involving Trapp while he was detained at the Billerica house of correction awaiting trial. According to one of the reports, three weeks before the trial the defendant and another inmate engaged in a verbal altercation, each threatening to kill the other. Another report indicated that eight months before trial, Trapp was found to be in possession of a small amount of marihuana. The third report showed that fifteen months before trial (three weeks after his arrest) Trapp was involved in a fight with two other inmates.

It is a fundamental rule that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged. Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947). In Commonwealth v. Jackson, 132 Mass. 16, 20-21 (1882), we stated the rationale of this long-standing rule as follows: "Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defence, raises a variety of issues, and thus diverts the attention of the jury from the [crime] immediately before it; and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him."

While this rule has its exceptions, see P.J. Liacos, Massachusetts Evidence 421-422 (5th ed. 1981 & Supp.1985) (cases collected), the exceptions to the rule are not without limitation. See, e.g., Commonwealth v. Brown, 389 Mass. 382, 384-386, 450 N.E.2d 172 (1983); Commonwealth v. Welcome, supra. ³ One of the exceptions to the rule of exclusion allows admission of evidence of other bad acts when that evidence relates to a subsidiary issue, such as the state of mind of the defendant, and is not offered to prove his guilt but rather to prove a relevant subsidiary fact. See Proposed Mass.R.Evid. 404(b). See also Commonwealth v. Bradshaw, 385 Mass. 244, 268-270, 431 N.E.2d 880 (1982). The Commonwealth argues that the evidence of Trapp's acts in 1977 and in pretrial detainment are within the exception to the rule because the evidence was probative of his sanity. Trapp would have been unable to make threats or to engage in altercations, the Commonwealth contends, if he truly were suffering from the mental disease or defect that he claimed. Logic, experience, and common sense do not support this inference. Despite its claim to the contrary, the prosecution has not established through testimony of expert witnesses that such inferences are warranted. Furthermore, the threats made in 1977, even if they tended to establish his sanity in 1977 would not tend to refute the defendant's claim of lack of mental responsibility in 1981. The defendant's evidence was that his drastic behavioral changes symptomatic of his mental disease or defect first occurred between 1978 and 1981, following traumatic head injuries.

Similarly, at least one of the incidents revealed in the disciplinary reports lacks any rational link to the question of the defendant's mental responsibility on the date of the crime. The probative value of the evidence of possession of marihuana is not clear and was not established. This evidence should not have been admitted, in that it is marginally relevant, at best, and its probative worth is outweighed by the risk of undue prejudice. See Proposed Mass.R.Evid. 403.

Additionally, a more complex issue is raised by the use of three disciplinary reports to prove three of these incidents. Assuming, without deciding, that evidence that the defendant made a threat to kill another inmate and was engaged in a prison altercation while incarcerated in the Billerica house of correction pending trial was relevant to the issue...