Seng v. Com.

• Decision Date: 15 December 2005
• Citation: 445 Mass. 536,839 N.E.2d 283
• Parties: Vuthy SENG v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

839 N.E.2d 283

445 Mass. 536

Vuthy SENG v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 7, 2005.

Decided December 15, 2005.

Larry R. Tipton for the defendant.

Loretta M. Smith, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, & CORDY, JJ.

MARSHALL, C.J.

At issue in this case is whether a criminal defendant may be required to submit to an examination by an expert of the Commonwealth's choosing to evaluate his competency to stand trial. After a court-appointed expert concluded that Vuthy Seng (defendant) was not competent to stand trial, a judge in the Superior Court allowed the Commonwealth's motion that the defendant submit to a second competency examination to be conducted by an expert of its choosing, "subject," she ruled, "to the procedures set forth in Mass. R.Crim. P. 14(b)(2)(B)," 378 Mass. 874 (1979).¹ The defendant petitioned a single justice for relief, pursuant to G.L. c. 211, § 3, contending that the judge's order violated his statutory rights under G.L. c. 123, § 15, his privilege against self-incrimination, and his right to effective representation by counsel. The single justice reserved and reported the case on a statement of agreed facts and statement of the issue presented, namely, "whether the motion judge abused her discretion or committed an error of law by allowing on December 17, 2004, the Commonwealth's motion to have the petitioner examined for competency to stand trial by a psychiatrist of the Commonwealth's choosing." We conclude there was no abuse of discretion or other error of law. The case is remanded to the single justice for entry of an order affirming the ruling of the judge in the Superior Court.

1. Factual background. In 1997, the defendant was convicted of three indictments charging murder in the first degree, armed assault with intent to murder, assault and battery, and possession of a firearm without a license. Commonwealth v. Vuthy Seng, 436 Mass. 537, 538, 766 N.E.2d 492 (2002). We reversed the convictions on grounds not relevant here, and remanded the case to the Superior Court for a new trial. See id.

After remand, defense counsel moved for an evaluation of the defendant's competency to stand trial. On the same date, the Commonwealth moved, pursuant to G.L. c. 123, § 15 (a), for a competency evaluation by a psychiatrist of the Commonwealth's choosing. The judge allowed the defendant's motion, ordering that he be evaluated at Bridgewater State Hospital, and deferred action on the Commonwealth's motion. See G.L. c. 123, § 15 (b).²

A designated forensic psychologist of Bridgewater State Hospital, Dr. David W. Holtzen, filed his evaluation report with the court, concluding that the defendant was not competent to stand trial.³ See G.L. c. 123, § 15 (c).⁴ The Commonwealth then renewed its motion for an independent evaluation, which the judge allowed over the defendant's objection, ordering that "the Commonwealth may have the defendant examined for competence by an expert of its own choosing subject to the procedures set forth in Mass. R.Crim. P. 14(b)(2)(B)." See note 1, supra. Further proceedings in the Superior Court were stayed pending resolution of this issue.

2. Discussion. It has long been established that a defendant who, through expert testimony, raises a defense of lack of criminal responsibility must submit to an examination by an expert of the Commonwealth's choosing. Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977). We recently held, in Commonwealth v. Poissant, 443 Mass. 558, 823 N.E.2d 350 (2005), that this rule does not apply in the context of proceedings under G.L. c. 123A, where two qualified examiners have examined the defendant and concluded that he is not sexually dangerous. The defendant contends, relying in part on Commonwealth v. Poissant, supra, that (1) the judge lacked authority under G.L. c. 123, § 15, to order a competency examination by an expert of the Commonwealth's choosing; (2) the compelled examination would violate his right against self-incrimination; and (3) the compelled examination would violate his right to counsel. Finding none of the defendant's arguments persuasive, we determine that the judge's order was within her discretion, that the judge crafted an order that fully protects the defendant's constitutional rights, and that any possible violation of the defendant's constitutional rights can be remedied at trial, should one occur.⁵

a. Statutory authority. General Laws c. 123, § 15 (a), provides:

"Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists. Whenever practicable, examinations shall be conducted at the court house or place of detention where the person is being held. When an examination is ordered, the court shall instruct the examining physician or psychologist in the law for determining mental competence to stand trial and criminal responsibility." (Emphasis added.)

After an examination takes place, "the examining physician or psychologist shall forthwith give to the [judge] written signed reports of [his or her] findings, including the clinical findings bearing on the issue of competence to stand trial." G.L. c. 123, § 15 (c). If the examiner's report satisfies the judge that the defendant is competent to stand trial, the case may proceed in the usual course. G.L. c. 123, § 15 (d). Otherwise, the judge must hold a competency hearing. Id. Here, because the judge found that Dr. Holtzen's report raised a substantial doubt about the defendant's competency to stand trial (that is, it did not satisfy her that the defendant was competent), she ordered that a competency hearing be held.

Although G.L. c. 123, § 15 (d), provides that "[a] finding of incompetency shall require a preponderance of the evidence" (emphasis added), this court has held that the burden is on the Commonwealth to establish, by a preponderance of the evidence, that a defendant is competent. Commonwealth v. Crowley, 393 Mass. 393, 400, 471 N.E.2d 353 (1984). For this reason, and because in her view, the defendant's concerns based on the Fifth Amendment to the United States Constitution were resolved by "the strict requirements" of rule 14(b)(2)(B), the judge allowed the Commonwealth's motion to have the defendant examined by an expert of its own choosing. A fair inference of her order is that the judge allowed the motion to enable the Commonwealth to present evidence tending to show the defendant's competency at the hearing. In other words, the Commonwealth's competency examination will not be conducted in order to determine whether a hearing is warranted, but to gather evidence.

The judge acted within her statutory authority.⁶ By its terms the statute permits the judge to order a competency examination by "one or more" experts. See Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704, 459 N.E.2d 772 (1984) (statutory language is "the principal source of insight into legislative purpose"). See also Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934) (we interpret statute "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished"). The fact that the defendant has been examined once does not preclude his being examined again by a different expert.

As to the identity of the experts, the statute says only that they must be "qualified physicians" or "qualified psychologists." See G.L. c. 123, § 1 (defining these terms).⁷ It does not preclude the Commonwealth (or a defendant for that matter) from requesting an evaluation by an expert of its own choosing within the same proceeding. Cf. United States v. Weston, 36 F.Supp.2d 7, 9, 12 & n. 6 (D.D.C.1999) (characterizing competency hearing under cognate Federal statute permitting more than one examiner "if the court finds it appropriate" as "adversarial proceeding" that contemplates "testimony about the defendant's present competency from both government and defense witnesses"). General Laws c. 123, § 15 (a), leaves to the judge's discretion the decision who shall examine the defendant: the statute expressly provides that the judge "may at any stage of the proceedings" order a competency examination, giving the judge considerable discretion to order any examination at all.

Further, the Commonwealth must affirmatively establish the defendant's competency to stand trial, Commonwealth v. Crowley, supra at 400, 471 N.E.2d 353,⁸ and it is difficult to see how it can carry this burden here merely by cross-examination of Dr. Holtzen. The statute does not expressly preclude the Commonwealth from calling its own expert, and that expert cannot form as credible an opinion of the defendant's competency without examining him. See Baqleh v. Superior Court, 100 Cal.App.4th 478, 488, 122 Cal.Rptr.2d 673 (2002) ("prosecution's forensic psychiatrist could not testify credibly ... unless he or she had the same access to petitioner that the defense experts enjoyed").

The Legislature's granting of more than one examination on the issue of competency is similar to statutes in other jurisdictions. See, e.g., 18 U.S.C. § 4241 (2000) (incorporating by reference 18 U.S.C. § 4247[b], granting psychiatric or psychological examination by more than one expert of defendant for competency to stand trial); Cal.Penal Code § 1369(a) (Deering 1992) (permitting court appointment of "any other expert the court may deem...