Commonwealth v. Gerhartsreiter

• Decision Date: 28 September 2012
• Docket Number: No. 10–P–1899.,10–P–1899.
• Citation: 82 Mass.App.Ct. 500,975 N.E.2d 890
• Parties: COMMONWEALTH v. Christian Karl GERHARTSREITER.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 500
975 N.E.2d 890

COMMONWEALTH
v.
Christian Karl GERHARTSREITER.¹

No. 10–P–1899.

Appeals Court of Massachusetts,
Suffolk.

Argued June 1, 2012.
Decided Sept. 28, 2012.

[975 N.E.2d 894]

Jeffrey A. Denner, Boston, for the defendant.

John P. Zanini, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with him) for the Commonwealth.

Present: CYPHER, KAFKER, & GRAHAM, JJ.

GRAHAM, J.

[82 Mass.App.Ct. 501]The defendant, Christian Karl Gerhartsreiter, was indicted by a grand jury on September 26, 2008, and charged with parental kidnapping, in violation of G.L. c. 265, § 26A; assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, § 15A; assault and battery, in violation of G.L. c. 265, § 13A; and furnishing a false name to a law enforcement officer, in violation of G.L. c. 268, § 34A. At trial, the defendant did not dispute that he committed the crime of parental kidnapping, but claimed that he was not criminally responsible. A Superior Court jury rejected the defendant's claim that he lacked criminal responsibility and convicted him of parental [82 Mass.App.Ct. 502]kidnapping and assault and battery by means of a dangerous weapon, but acquitted him of the other charges.

After his convictions, the defendant filed a motion for an order setting aside the convictions, or in the alternative, granting him a new trial. See Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The trial judge denied the motion and the defendant filed a timely appeal.

On appeal, the defendant argues that his right to trial by a fair and impartial jury was violated by pretrial publicity; the judge improperly admitted testimony from the Commonwealth's psychiatric expert that was based on incorrect legal standards; the judge improperly permitted testimony by the Commonwealth's experts that the defendant was competent to stand trial, thereby confusing the jury on the issue of criminal responsibility versus competency to stand trial; the judge erred in concluding that certain of the defendant's statements to various law enforcement officers were voluntary; the prosecutor's closing argument contained improper remarks; and the evidence was insufficient to convict him of assault and battery by means of a dangerous weapon. We affirm.

1. Background. We recite the facts in the light most favorable to the Commonwealth. The defendant, under the name Clark Rockefeller, married Sandra Boss in 1995 in a ceremony held in Nantucket. From the start of the marriage, Boss was the primary income earner. The defendant and Boss lived in Nantucket for about six months, then moved to Cornish, New Hampshire. In May, 2001, the couple's daughter was born. For the first three months after the birth, Boss was the primary caregiver for her daughter, then the defendant and Boss hired two nannies to care for the daughter until she turned two years old. Thereafter, the defendant assumed the duties of primary caregiver and Boss continued her role as the primary income earner. In October, 2004, when the child was three and one-half years old,

[975 N.E.2d 895]

Boss transferred to work in Boston, and in 2006, the defendant and Boss bought a house in Boston.

Problems developed in the marriage, and in January of 2007, Boss formally separated from the defendant, moved out of the house, and filed for divorce. The parties agreed that the defendant would have child custody five days per week, and Boss two [82 Mass.App.Ct. 503]days. However, during the ensuing year, the custody arrangement shifted so that, by December of 2007, the child was spending almost all her time with Boss. As part of the divorce proceedings, Boss hired a private investigator, and later filed documents in the proceedings raising the question of the defendant's identity. Shortly thereafter, the defendant and Boss agreed to a settlement in which Boss would have full custody of the child and move with her to London, and the defendant would have three supervised visits per year, with eight hours per day to spend with the daughter; $800,000; two cars; Boss's engagement ring; and other personalty. Boss and the child moved to London in December of 2007.

Arrangements were made for the defendant to see his daughter on July 25–27, 2008, under the supervision of Howard Yaffe, a social worker, who was to meet Boss and the child at the Algonquin Club on Commonwealth Avenue in Boston and take the child for the visit. On Saturday morning, July 26, 2008, Yaffe took the child to visit with the defendant. Yaffe returned with her at approximately 5 p.m. that day.

Meanwhile, the defendant had hired a livery car driver, Darryl Hopkins. Again using the name Clark Rockefeller, the defendant told Hopkins that he was planning to go sailing in Rhode Island with his daughter and the son of Rhode Island Senator Lincoln Chaffee. He also told Hopkins that they had to escape the company of a troublesome family friend, whom he described as looking like Yaffe, and asked that Hopkins be prepared to do what was necessary to help the defendant get away. Hopkins agreed to help the defendant escape from Yaffe, and on Friday, July 25, 2008, the defendant and Hopkins selected a spot on Marlborough Street, Boston, for the pick-up. There, the defendant rehearsed jumping into Hopkins's sport utility vehicle with his daughter: he practiced tossing his full backpack into the open door, jumping in, and shutting the door.

On the morning of Sunday, July 27, 2008, Yaffe again met the defendant with the child for the scheduled visit. They went to a park, where the defendant made a telephone call. Later, while the three were walking down Marlborough Street, the defendant pointed out a building undergoing construction. When Yaffe turned to look, the defendant shoved him in the back. As [82 Mass.App.Ct. 504]Yaffe stumbled forward, Hopkins drove to the defendant, and the defendant and the child entered the vehicle. Yaffe ran to the vehicle in an attempt to stop the defendant from leaving with his daughter and grabbed the open door. The defendant pulled the door closed and yelled, “Go! Go! Go!” Hopkins turned and saw Yaffe holding onto the vehicle, and then sped away. Yaffe continued holding onto the door and ran alongside the vehicle, but was eventually forced to let go and tumbled to the ground, suffering minor injuries. The defendant directed Hopkins to a convenience store on Revere Street, Boston, and exited the vehicle, telling Hopkins to wait at the store while he took his daughter to Massachusetts General Hospital. The defendant then tossed an envelope containing $2,000 onto the front seat. He and his daughter entered a taxicab and left the city.

[975 N.E.2d 896]

Approximately one week after the defendant abducted his daughter, he was apprehended, with his daughter, in Baltimore, Maryland, by agents from the Federal Bureau of Investigations (FBI). While the defendant was in their custody, he participated in a videotaped interview. During the interview, the defendant made several inculpatory statements.

Prior to trial, the defendant filed a motion to dismiss, which was denied; a motion to suppress portions of his recorded interview with FBI agents, which was allowed; ² and a motion for change of venue, which was denied.

The defendant's case was tried in the Superior Court in Suffolk County from May 26 to June 8, 2009, with five days of jury deliberations thereafter. The defense argued that the defendant was not criminally responsible for the charge of parental kidnapping and, at the close of the Commonwealth's case, moved for a required finding of not guilty on the charge of assault and battery by means of a dangerous weapon. The motion was denied, and on June 12, 2009, the jury found the defendant guilty of both crimes.

2. Impartial jury. On April 3, 2009, the defendant filed a motion for change of venue based on extensive pretrial publicity [82 Mass.App.Ct. 505]surrounding the case. The motion was accompanied by various articles published in the press regarding the allegations against the defendant and polling information. The defendant urged the judge to move the trial to Hampden County, where the poll indicated less exposure of the public to information about the case. The judge denied the motion in a written memorandum of decision primarily on the basis that the media coverage had been factual and not inflammatory; the survey did not demonstrate that the majority of people who lived in Suffolk County had formed an opinion about the defendant's guilt; there was not a statistically significant difference in the views of people in the two counties; and the defendant and his attorneys were, in part, responsible for portions of the media coverage by participating in interviews and holding news conferences. While the judge concluded that an impartial jury could be selected in Suffolk County, he denied the motion for change of venue without prejudice.

The selection of the jury was completed in two days and the selection process was unremarkable. Prior to jury selection, the venire were instructed not to discuss the case, read about it, conduct any research about the case via the Internet, or otherwise expose themselves to media coverage of the case.

A criminal defendant is guaranteed the right to a trial by an impartial jury. See Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995 (1985); Commonwealth v. Guisti, 434 Mass. 245, 251, 747 N.E.2d 673 (2001). In reviewing a defendant's claim that his right to trial by an impartial jury was violated due to prejudicial pretrial publicity, we examine first whether a change of venue was required because the jury were presumptively prejudiced against him. See Commonwealth v. Toolan, 460 Mass. 452, 462–466, 951 N.E.2d 903 (2011). If the jury were not presumptively prejudiced, we then examine whether the defendant has shown actual prejudice. Id. at 466, 951 N.E.2d 903.

A trial judge may order a change of venue if “there exists in the community

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