Com. v. Widrick

• Decision Date: 23 August 1984
• Citation: 392 Mass. 884,467 N.E.2d 1353
• Parties: COMMONWEALTH v. Nathan P. WIDRICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1353

467 N.E.2d 1353

392 Mass. 884

COMMONWEALTH v. Nathan P. WIDRICK.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 8, 1984.

Decided Aug. 23, 1984.

William P. Homans, Jr., Boston (Anne E. Braudy, Boston, with him), for defendant.

Margot Botsford, Asst. Dist. Atty. (Karen J. Kepler, Asst. Dist. Atty., with her), for the Commonwealth.

Holly D. Ladd, Althea Lloyd and Rita Pollak, Boston, for the Family Crisis Program for Sexually Abused Children of Tufts New England Medical Center, & others, amici curiae, submitted a brief.

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

HENNESSEY, Chief Justice.

On June 1, 1983, a grand jury indicted the defendant, Nathan P. Widrick, on eight counts of indecent assault and battery of a child under the age of fourteen years and on seven counts of rape of a child under the age of sixteen years. The defendant filed a motion which requested the trial judge to order psychiatric examinations of the seven year old complaining witness (R) and her six year old sister (B). The motion did not assert that R and B were incompetent due to a mental disease or defect, but rather suggested that the results of such examinations should be available for impeachment purposes at trial. The judge denied the defendant's motion, concluding that he lacked the authority to issue such an order. However, the judge reported the question to the Appeals Court because he believed the issue was of fundamental importance, had never been authoritatively determined, and seemed likely to arise again. ¹ See Mass.R.Crim.P. 34, 378 Mass. 905 (1979). We transferred the case to this court on our own motion. G.L. c. 211A, § 10(A). We hold that a trial judge has no authority to order a complaining witness in a criminal proceeding arising from a sexual offense, or a witness who would corroborate the complaining witness's testimony, to undergo a psychiatric examination which would be available to impeach those witnesses at trial. ²

From the affidavits included with the defendant's motion for psychiatric examinations, we elicit the following facts. R and B resided with their grandparents. On May 10, 1983, B announced to her grandmother that "Nathan [the defendant] touches B's peepee with his mouth and hand." Upon inquiry, R informed her grandmother that when present at their home with his fiancee (the children's babysitter [W] ), the defendant would come into her bedroom. While in R's room he would kiss her on the lips, on her neck, such on her "boobies," pull down her underwear, perform cunnilingus (described in the child's own words), and touch her with his fingers. This happened approximately once a week for about two months. Each time this occurred B would come into R's room and R would tell her what happened. B also heard the defendant ask R not to tell anyone.

The defendant suggests that the children fabricated this story because they were troubled by W's relationship with the defendant. He claims the children's actions support this conclusion. For instance, on various occasions, the children would try to divert W's attention when she appeared to be showing the defendant some affection. Additionally, R told W that she had seen her grandparents "doing something," and asked if W and the defendant did those things; that she knew W wore tight blue jeans to cover up the fact that she was pregnant; and that she was to marry the defendant in place of W.

The defendant has denied the accusations against him. After a polygraph examination, the certified examiner stated that, in his opinion, the test supported the truthfulness of the defendant's denial of the charges against him. Additionally, Dr. Daniel C. Schuman suggested that R's account of the incident was "consistent with the account of a child who is reciting relevant events in a manner highly influenced by disappointment in a prospective change in a personal relationship." However, he could not say that R's account was false. Further, he had neither seen nor examined R or B.

The defendant asserts that these facts and circumstances exhibit a compelling need for psychiatric examinations of the children to be used for impeachment purposes at trial. He concedes that G.L. c. 123, § 19, ³ which allows a psychiatric examination when a witness's competence to testify is at issue, does not apply. His claim suggests that a judge has inherent power to order a psychiatric examination to assess a witness's credibility when necessary "to insure to the citizen a fair trial, whenever his life, liberty, property or character is at stake." O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 509-510, 287 N.E.2d 608 (1972), quoting Crocker v. Superior Court, 208 Mass. 162, 179, 94 N.E. 369 (1911). The defendant proposes that we adopt the majority position which authorizes a trial judge to order the complaining witness of a sexual offense to submit to a psychiatric examination when the defendant demonstrates a compelling need. This allegedly arises when little or no corroboration supports the charge and the defendant raises the issue of the effect of the complaining witness's mental or emotional condition upon her veracity. ⁴ The defendant further suggests that we apply this rule to a witness who merely corroborates the complaining witness's testimony. We decline to adopt this rule in any circumstance.

1. Applicability of G.L. c. 123, § 19. Although the defendant concedes that G.L. c. 123, § 19, does not apply to a psychiatric examination ordered for the purpose of assessing a witness's credibility, we should investigate statutory authority before addressing the question of inherent authority. See Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 534, 437 N.E.2d 164 (1982); O'Coin's, Inc. v. Treasurer of the County of Worcester, supra 362 Mass. at 508-509, 287 N.E.2d 608. A judge's inherent authority should be summoned only in the absence of statutory authority. See Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 646-647, 374 N.E.2d 272 (1978).

General Laws c. 123, § 19, and its predecessor, G.L. c. 123, § 99, ⁵ have consistently been interpreted as enhancing a trial judge's jurisdiction to determine a party's or a witness's competency to testify at trial. Commonwealth v. Gibbons, 378 Mass. 766, 767-769, 393 N.E.2d 400 (1979). Commonwealth v. Welcome, 348 Mass. 68, 69, 201 N.E.2d 827 (1964). This court interpreted G.L. c. 123, § 99, as providing a "simple, efficient and impartial method of determining ... whether a party to an action [or witness] is capable of conducting the litigation [or of testifying] by reason of minority or mental incapacity." Sullivan v. Superior Court, 271 Mass. 435, 437, 171 N.E. 490 (1930). This interpretation applies with equal force to G.L. c. 123, § 19, inserted by St. 1970, c. 888, § 4, because it is a reenactment of the former G.L. c. 123, § 99, in substantially the same words. Commonwealth v. Welosky, 276 Mass. 398, 409, 177 N.E. 656 cert. denied, 284 U.S. 684, 52 S.Ct. 201, 76 L.Ed. 578 (1931). Therefore G.L. c. 123, § 19, operates as a supplement to a judge's traditional method of assessing competency, e.g., the voir dire. Commonwealth v. Fillippini, 1 Mass.App. 606, 609, 304 N.E.2d 581 (1973).

Neither the language of G.L. c. 123, § 19, nor its legislative history indicates that the statutory authority extends to the ordering of a psychiatric examination for the purpose of assessing a witness's credibility. The determination of a witness's competency rests in the witness's general ability or capacity to observe, remember and recount. Commonwealth v. Tatisos, 238 Mass. 322, 325, 130 N.E. 495 (1921). Further, the witness must have "understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Id. The determination of competency is peculiarly within the province of the judge. Commonwealth v. Whitehead, 379 Mass. 640, 656, 400 N.E.2d 821 (1980). On the other hand, the issue of a witness's credibility focuses on the witness's ability and willingness to tell the truth. "Evaluations of credibility are, of course, within the exclusive province of the trier of fact." Commonwealth v. Bohannon, 376 Mass. 90, 94, 378 N.E.2d 987 (1978). We conclude that the Legislature's grant of authority to judges to order psychiatric examinations in order to aid in a determination of competency could not apply to the separate and distinct determination of credibility, which rests within the province of the trier of fact, without an explicit expression of legislative intent. See Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 686-687, 282 N.E.2d 379 (1972).

2. Inherent authority. We must now consider the defendant's claim that a judge has inherent authority to order a psychiatric examination in these circumstances. Therefore, we examine the general common law powers of a judge, Crocker v. Superior Court, 208 Mass. 162, 166, 94 N.E. 369 (1911), and the implicit powers of a judge derived from the constitutional grant of judicial powers, O'Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 510, 287 N.E.2d 608 (1972).

After examination of all relevant considerations, we conclude that the judge has no inherent authority to order the psychiatric examinations sought in this case.

At common law, a judge had no authority to order a physical examination of a plaintiff in an action for personal injuries. Stack v. New York, N.H. & H.R.R., 177 Mass. 155, 157, 58 N.E. 686 (1900) (Holmes, C.J.). An examination of this nature would constitute a serious invasion into the person of a party and should not be imposed absent statutory authority. Id. See Union Pac.Ry. v. Botsford, 141 U.S. 250, 257, 11 S.Ct. 1000, 1003, 35 L.Ed. 734 (1891). A...