Commonwealth v. Adkinson

• Decision Date: 05 October 2011
• Docket Number: No. 10–P–432.,10–P–432.
• Citation: 80 Mass.App.Ct. 570,954 N.E.2d 564
• Parties: COMMONWEALTHv.Nancy ADKINSON.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 570

954 N.E.2d 564

COMMONWEALTH

v.Nancy ADKINSON.

No. 10–P–432.

Appeals Court of Massachusetts, Middlesex.

Argued May 5, 2011.Decided Oct. 5, 2011.

Robert S. Sinsheimer for the defendant.Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.Present: CYPHER, BROWN, & HANLON, JJ.HANLON, J.

Along with her husband, the defendant was convicted of sexual abuse of her four minor sons and related drug offenses after a joint jury-waived trial in 1997.¹ In 2002, she filed a motion for a new trial, arguing that battered woman syndrome had rendered her incompetent to stand trial, and thus she suffered a violation of her constitutional right to due process.² A judge other than the trial judge was assigned to hear the motion for a new trial.³ After reviewing the motion and supporting materials and conducting a three-day evidentiary hearing, the motion judge denied the motion.⁴ We reverse.

Facts. The facts found by the motion judge are substantially supported by the information and materials that were before him at the hearing; we supplement with uncontested material facts from the record in order to provide context. See, e.g., Commonwealth v. Robinson, 449 Mass. 1, 5, 864 N.E.2d 1186 (2007). The motion judge found that the defendant “experienced physical and emotional abuse from [her husband, Corby Adkinson] throughout their lives together in Lowell. Corby ... would beat or threaten to beat [the defendant] on a periodic basis causing her black eyes, bloody lips and other injuries. After nearly every one of his beatings, he would apologize and promise that he would never do that again. He would tell her how much he loved her, only to repeat later the same cycle of violence. Corby ... was a ‘control freak,’ who wanted to know where [the defendant] was and who she was with at all times.” ⁵

The charged crimes involving the defendant's sons, aged approximately eight to eleven, occurred between May, 1995, and November 23, 1995. Commonwealth v. Adkinson, 442 Mass. 410, 411, 813 N.E.2d 506 (2004). During that time, Corby sexually abused and raped each boy repeatedly and, according to the defendant, forced her participation as well. The defendant's affidavit states, “He threatened to hurt me unless I participated in this sexual abuse. He constantly carried a large knife (the knife which was introduced into evidence by the prosecution at my trial), and he often used it to threaten and intimidate me.” ⁶ At some point in 1995, Corby apparently convinced the defendant and the children that the defendant's ex-husband, Kenny Bock, was living under the floor boards in the attic and doing terrible things to them. He also convinced the defendant that Bock had been drugging the children. In fact, according to the defendant and her youngest son, Corby was using cocaine and administering it to her and to their children.

On November 23, 1995, Thanksgiving Day, one of the boys telephoned 911 and asked for help. The police responded; the children and the defendant were taken to Lowell General Hospital, where all four children tested positive for cocaine. The Department of Social Services ⁷ (DSS) took emergency custody of all four children.

Thereafter, between Thanksgiving and December 23, 1995, according to the defendant's affidavit and testimony at the motion hearing, Corby repeatedly instructed her on what she was to say to DSS with respect to the pending care and protection proceeding; when he thought that she disobeyed him, he beat her. On December 22, 1995, when Corby was rehearsing with the defendant what to say, he put a knife to her throat and threatened to kill her if she told anyone what had happened to their children. Afterwards, the defendant broke free and tried to escape, pushing a television out the window and then jumping through the window in a nightgown and bare feet. Eventually the police were called to the scene and the defendant was transported to a hospital. She told the hospital staff that Corby had put a knife to her throat, that he was molesting their children, and that he was drugging “us.” Several hours later, on December 23, 1995, she was transferred to the Solomon Mental Health Center (Solomon) for a psychiatric evaluation.⁸ There, she repeated the allegations of abuse that she and her children had endured.

Two days later, on Christmas Day, Corby's lawyer, Edward J. Moloney, Sr., went to Solomon and spoke to the defendant. He told her that if she continued to talk as she had done to the Lowell police and the staff at Solomon, she would never get custody of her children back from DSS. Corby also visited the defendant at Solomon. Thereafter, the defendant told the staff that Corby was a good husband and father. On December 29, 1995, she was released from Solomon and she returned to live with Corby.

The defendant and her husband were arrested by the Lowell police and charged with the offenses against their children on January 17, 1996. The defendant was interviewed separately; after waiving her Miranda rights, she signed a detailed, four-page, typed statement disclosing sexual and drug abuse in the Adkinson family with explicit examples. She also described Corby's extensive physical abuse of all the children and of her.

The next day, the defendant was transported to Lowell Division of the District Court Department, and Corby was among the other prisoners in the transport wagon. On the ride, he angrily warned her to “get [her] f-ing act together” and “get [her] story straight.” ⁹ Attorney Douglas A. Parigian was assigned to represent the defendant at her arraignment on January 18, 1996. Corby was represented by Attorney Moloney. Thereafter, the defendant was held without bail at the Massachusetts Correctional Institution at Framingham (MCI Framingham), and Corby was held in the Cambridge jail.

The following day, January 19, 1996, Parigian met with his client at MCI Framingham, and spoke to her in detail. According to Parigian's affidavit, the defendant described “a long history of physical and emotional abuse which she had suffered from her husband.” She told Parigian that “her husband limited the people she was allowed to speak with and did not allow her to have friends of her own.” She also said “she felt threatened by her husband.”

The motion judge credited Parigian's statement in his affidavit that, based on these discussions with his client and his review of her four-page statement given to the Lowell police, he “began to explore a possible defense to the charges based on duress supported by Battered Women's Syndrome—namely that her criminal acts against her children had been forced upon her by her battering husband” and that he so informed the defendant at their January 19, 1996, meeting.

Although the motion judge did not make any specific findings regarding what occurred between January 18, 1996, the defendant's arraignment date, and February 22, 1996, when Parigian was replaced with another attorney, the following additional facts were adduced at the hearing and were not disputed. At some point on the District Court arraignment date, the defendant and Corby were lodged in adjacent holding cells. Parigian met with the defendant in the holding cell and began to discuss with her his recommendation that the cases be severed. Corby told Parigian that the cases would not be severed, and later that day, while they were still in the court house, he told the defendant to get a new lawyer.

Three days later, on January 21, 1996, Corby's mother, Margaret Adkinson (Margaret), and Corby's attorney, Moloney, visited the defendant at MCI Framingham.¹⁰ Margaret told the defendant she could trust Moloney, and she provided MCI Framingham, with the necessary documents that would permit the couple to correspond, contact that was usually prohibited between prisoners. Margaret also instructed the defendant to place her, Margaret's, telephone number on the list of numbers that the defendant was permitted to call. The defendant was instructed by Margaret, and by Corby in his letters, to call Margaret daily. (Corby wrote, e.g., “I want you to call everyday,” and, “[C]all mom everyday till sentencing”).¹¹ In these conversations with the defendant, which continued until the trial date, Margaret relayed to the defendant what Corby wanted her to do. Corby sent letters almost daily to the defendant, repeating or making additional demands of her regarding specific communications she should have with various lawyers and others.

On January 30, 1996, Moloney wrote a letter to the defendant stating that he could not represent both her and Corby “[b]ecause of a possible conflict of interest”; he directed her to contact her attorney, Parigian, if she had any further questions.¹² Corby immediately instructed the defendant to write to Moloney. Shortly thereafter, as the motion judge found, the defendant “wrote a one page letter dated February 3, 1996 to Mr. Moloney, indicating ... that her four page statement to the Lowell Police is ‘false,’ ‘is not my statement,’ and that ‘the Lowell Police lied to me.’ ” In that letter, the defendant also told Moloney she “would like [a] Unified Defense and Coed defendants [ sic ], so [the two] lawyers can work together and so Corby and I can be together to prepare our Defense.”

About two weeks later, on February 13, 1996, Parigian again met with the defendant and discussed her desire to present a “unified defense” with her husband. According to the motion judge's findings, the unified defense was that the “sexual allegations were the result of suggestive interviewing on the part of DSS, and/or that [the defendant's] first husband, Kenny Boc[k], was responsible.” See Commonwealth v. Adkinson, 442 Mass. at 412–413, 813 N.E.2d 506 (defendant and codefendant pursued a “unified defense”). The defendant even provided Parigian with a copy of the decision in Perkins v. Wagner, 513 F.Supp. 904 (E.D.Pa.1981), a case involving a request for visitation rights so...