Commonwealth v. Contos

• Decision Date: 11 May 2001
• Citation: 754 NE 2d 647,435 Mass. 19
• Parties: COMMONWEALTH v. PETER CONTOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 19

754 NE 2d 647

COMMONWEALTH v. PETER CONTOS.

Supreme Judicial Court of Massachusetts, Middlesex.

May 11, 2001.

September 4, 2001.

Present: MARSHALL, C.J., GREANEY, SPINA, SOSMAN, & CORDY, JJ.

Stephen Hrones for the defendant.

Marguerite T. Grant, Assistant District Attorney (Richard D. Grundy, Assistant District Attorney, with her) for the Commonwealth.

SPINA, J.

The defendant was convicted on three indictments charging murder in the first degree on a theory of deliberate premeditation. The victims were a woman, Catherine Rice, with whom the defendant had an affair, and their two young children, Benjamin Rice, four years old, and Ryan Contos, two months old. On appeal the defendant claims error in (1) the failure to give a voluntary manslaughter instruction; (2) the allowance of the Commonwealth's motion for a psychiatric evaluation of the defendant after the defendant said he was not advancing an insanity defense and after counsel announced he did not want the Commonwealth's psychiatrist to interview the defendant; and (3) the denial of his motions to suppress (a) statements he made to police and (b) physical evidence, in this case, the bodies of the children, discovered in the course of a military search of the defendant's gear locker for improperly stored ammunition. The defendant also asks us to grant a new trial in accordance with our power under G. L. c. 278, § 33E. We affirm the convictions and decline to order a new trial or otherwise grant relief under G. L. c. 278, § 33E.

1. Background. The facts are largely undisputed. Catherine Rice was found dead in her Lowell apartment on Saturday, September 27, 1997. She had been strangled to death with a ligature, and left nude in her bathtub in a few inches of water. Her two children, Benjamin and Ryan, were missing. Their bodies were discovered early the next morning stuffed in a knapsack located in a locker assigned to the defendant at Otis Air Force Base (base) on Cape Cod. The boys also were strangled.

The defendant was a traditional guardsman¹ in the Air National Guard (ANG) at the base. He met the victim while working as a Sears security guard in 1992. Soon after meeting they developed a sexual relationship that continued, albeit intermittently, until the night of her death. Benjamin was born in June, 1993. Ryan was born in July, 1997. Meanwhile, the same year he met Rice, the defendant also became involved with his future wife, Robyn. In 1994, the defendant moved in with Robyn; they married in August, 1996. During this period, the defendant bragged to at least one coworker that having a girl friend and a wife made him feel like a "king." He told no one, however, that he had children.²

Details of the murders are based exclusively on the defendant's hearsay statements to his expert witness, a psychologist. It appears that after working Friday night, September 26, the defendant went to Rice's home in Lowell. He arrived around 1 A.M.³ They had sexual intercourse and talked. The defendant told her that he wanted to settle the paternity question by having blood tests done on himself and the boys. He also told her that he wanted her to stop contacting him and that their relationship was over. Rice and the defendant argued. Each time they seemed to reach a resolution, the defendant claimed, Rice became "hysterical" and the argument started all over again. Finally, Rice declared that she "was going to handle it in her own way, that she was going to go see Robyn the next day and that she was going to settle this and get him back in her own way." He believed Rice was going to reveal his relationship with her and the existence of his two children to his wife and thereby end his marriage. This caused the defendant to "snap" and go into what he described to his expert as "the zone," in which he reverted to his military training and eliminated anyone he perceived as a threat. He strangled Rice and the two boys. He put the boys' bodies in a bag and drove to the base. When they were discovered in the defendant's gear locker at the base, the bodies were inside a plastic bag that had been placed inside a knapsack that was itself enclosed with a plastic bag.

The day after the murders, Irene Finneral, Rice's upstairs neighbor, landlord, and friend, became concerned by the silence downstairs. Rice's car was in the driveway, but the shades were drawn in her apartment and there was no sign or sound from the children. Around 6 P.M., after calling Rice's parents to express her concern, Finneral and her son entered Rice's apartment and discovered her body.

2. Voluntary manslaughter instruction. The defendant claims error in the judge's failure to give an instruction on voluntary manslaughter. The defendant's account of the crimes was introduced during the defendant's direct examination of his expert witness. The judge repeatedly instructed the jury (and counsel at sidebar) that the defendant's statements to his expert witness were only to be considered as "bases of any opinion that the doctor may testify to ... and [could not] be treated as evidence of the truth of the matters contained within those [statements]." At the charge conference, the judge ruled that, where the only information that might support a finding of reasonable provocation was hearsay evidence, the defendant was not entitled to a voluntary manslaughter instruction. The judge's ruling was correct.

An instruction on voluntary manslaughter should be given "if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool." Commonwealth v. Seabrooks, 425 Mass. 507, 514 (1997). However, where, as here, the sole source of facts upon which the defendant relies to show provocation is hearsay evidence admitted through an expert witness as the basis for that expert's opinion and not for its probative value, the defendant is not entitled to an instruction on voluntary manslaughter. See Commonwealth v. Donahue, 430 Mass. 710, 717-718 (2000) (approving instructions to jury that statements were admissible "only as they relate to the basis of the doctor's opinion of the defendant's mental condition ... [and] could not be considered as evidence of premeditation, extreme atrocity or cruelty, or specific intent to kill"); Commonwealth v. Kappler, 416 Mass. 574, 576 n.1 (1993). Cf. Commonwealth v. Sires, 413 Mass. 292, 299-300 (1992). There was no error.

3. Blaisdell issues. The defendant argues that it was error to permit the Commonwealth's expert to testify because the Commonwealth scheduled the court ordered psychiatric examination without notice to defense counsel. He claims that because the Commonwealth failed to notify counsel he was deprived of "the assistance of his attorney[] in making the significant decision of whether to submit to the examination" in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution.⁴ See Estelle v. Smith, 451 U.S. 454, 471 (1981); Commonwealth v. Trapp, 423 Mass. 356, 359, cert. denied, 519 U.S. 1045 (1996). See also Mass. R. Crim. P. 14 (b) (2), 378 Mass. 874 (1979); Blaisdell v. Commonwealth, 372 Mass. 753, 768 (1977) (defendant may refuse to submit to court ordered examination). Although the defendant's original objections to the examination were on other grounds, he preserved his appellate rights by timely post-examination motions. Hence we review to determine if the failure to schedule the examination through defense counsel violated the Sixth Amendment and art. 12, and, if so, whether it was harmless beyond a reasonable doubt. Commonwealth v. Vinnie, 428 Mass. 161, 162, cert. denied, 525 U.S. 1007 (1998).

On December 24, 1998, three weeks before trial was set to begin and almost one year after the reciprocal discovery order deadline had passed, the defendant informed the court that although he was not raising a defense of lack of criminal responsibility, he planned to call an expert witness who would testify as to the defendant's state of mind as it affected the degree of guilt. The Commonwealth promptly filed a motion requesting a Blaisdell examination of the defendant.

On January 4, 1999, fifteen days before trial, a hearing was held on the Commonwealth's motion. At that hearing, the defendant argued that, because he would not be raising the defense of a lack of criminal responsibility, the Commonwealth had no right to a psychiatric examination and the judge had no authority to order the defendant to submit to one. See Mass. R. Crim. P. 14 (b) (2); Blaisdell v. Commonwealth, supra.

Although counsel conceded that the defendant's ability to form a specific intent to kill or premeditate was a live issue, he insisted that his expert would not offer an opinion but would provide only "background information" sufficient to permit the jury to decide the issue.⁵ Counsel further asserted that he would not "turn [his] client over" to an examination and that if the judge granted the Commonwealth's motion, he would appeal the order to the single justice of this court.⁶ Over these objections, the motion judge (who was also the trial judge) ordered the Blaisdell examination.⁷

Dr. Alison Fife, the Commonwealth's expert, examined the defendant six days later on January 10, 1999. During the final pretrial hearing held on January 12, 1999, defense counsel, who had not spoken with the defendant after the judge issued the Blaisdell order on January 4, learned that the examination had already taken place. Defense counsel claimed that, given his strong objections to the judge's authority to issue the order and his assertion that he would not permit his client to undergo the examination, he believed the Commonwealth would not schedule the examination without contacting him. He argues that, as in ...