Commonwealth v. Kostka , 370 Mass. 516 ( 1976 )

Hennessey, C.J.

(dissenting in part, with whom Kaplan, J., joins). I have written the main opinion for the court, and included in the final part of that opinion is a summary of the majority’s reasoning in declining to act under § 33E. Of course I concur that there is no legal error in these proceedings. Nevertheless, I disagree with the court’s decision not to exercise its discretion under § 33E and my conclusion on this issue is so firm as to warrant this separate opinion.

It is my view that, because of the extensive evidence of long-standing mental illness, including the uncontradicted expert testimony that Kostka was insane at the time he committed the crimes for which he was convicted, “justice in [this] particular case” (Commonwealth v. Geraway, 364 Mass. 168,184 [1973]), would best be served by reversal of Kostka’s conviction under G. L. c. 278, § 33E. This court has recently stated the basis for and the limitations on such a reversal in Commonwealth v. Mutina, 366 Mass. 810, 812, 816 (1975), and I need not repeat here what was said in Mutina. However, I do note that “[t]here was no medical testimony that [Kostka] was responsible. The fact that most men are sane, and a rational probability that the defendant, too, may have been sane on [the date of the crimes] ... seem... inadequate reasons upon which to disregard [the uncontradicted] medical opinion that he was not.” Commonwealth v. Cox, 327 Mass. 609, 615 (1951). In this case, “[t]he fact that the [Commonwealth] chose to rely on the presumption rather than ... [introduce] contradictory proof is inexplicable.” People v. Silver, 33 N.Y.2d 475, 483 (1974). It is fair to infer either that the Commonwealth was unsuccessful in a search for a medical expert who would support the Commonwealth’s position, or else the Commonwealth made no attempt to obtain such expert assistance. Although the presumption plays a role in a case such as this, I suggest that the Commonwealth runs the very real risk of reversal and the granting of a new trial if it chooses to rely on the presumption and the circumstantial evidence of sanity such as that adduced at this trial, rather than to introduce medical evidence of sanity.¹ Cf. Commonwealth v. Mutina, 366 Mass. 810 (1975); Commonwealth v. Cox, supra.

Because I suspect that the verdict “was not due to a careful consideration of the evidence, but [rather] that it [may have been] the product of bias, misapprehension or prejudice,” Scannell v. Boston Elevated Ry., 208 Mass. 513, 514 (1911), quoted in Commonwealth v. Mutina, supra at 816, I think that justice would best be served by a retrial at which Kostka would be entitled, on his motion, to the Mutina instructions on the consequences of a verdict of not guilty by reason of insanity.

1 The Commonwealth need not be surprised by reliance on the defense of insanity, as we have ruled that the Commonwealth, pursuant to an appropriate motion, is entitled to notice of the defense. Gilday v. Commonwealth, 360 Mass. 170 (1971).