Commonwealth v. Chatman , 473 Mass. 840 ( 2016 )

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SJC-08921
COMMONWEALTH vs. DEMOND CHATMAN.
Suffolk. December 11, 2015. - March 16, 2016.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
Homicide. Practice, Criminal, New trial, Competency to stand
trial, Capital case. Evidence, Competency. Due Process of
Law, Competency to stand trial.
Indictment found and returned in the Superior Court
Department on June 5, 2000.
After review by this court, 466 Mass. 327 (2013), a motion
for a new trial was heard by Barbara J. Rouse, J.
Edward L. Hayden for the defendant.
Cailin M. Campbell, Assistant District Attorney (Mark T.
Lee, Assistant District Attorney, with her) for the
Commonwealth.
CORDY, J. On February 10, 2000, police responded to a
telephone call made by the defendant, Demond Chatman, reporting
that his mother, the victim, had been shot. The defendant
directed officers to the home of the victim's aunt, where the
2
defendant was living. The police found the victim's body in the
aunt's bedroom.
On January 24, 2002, a jury returned a guilty verdict
against the defendant on the charge of murder in the first
degree. The defendant appealed, and, in May, 2008, during the
pendency of that appeal, the defendant filed a motion for a new
trial on the ground that he had not been competent to stand
trial. The motion judge, who was also the trial judge, denied
the motion in October, 2011, after a nonevidentiary hearing.
The defendant appealed.
In September, 2013, we reversed the denial of the motion
for a new trial and remanded the case for an evidentiary hearing
consistent with a newly established burden of proof on
defendants who, postverdict, seek a new trial on the basis of
incompetency when the issue was not raised or considered at the
time of, or prior to, trial. See Commonwealth v. Chatman, 466
Mass. 327, 335-336, 339 (2013). In November, 2014, after four
days of evidentiary hearings, the motion judge again denied the
defendant's motion.
Now before us for the second time, the defendant combines
his direct appeal from his conviction with his challenge to the
denial of his motion for a new trial.1 He also requests relief
1
The defendant's appeal, filed on December 10, 2014, was
not timely, as it came more than thirty days after the November
3
pursuant to our authority under G. L. c. 278, § 33E. As we
explain below, our review of the entire record discloses no
basis on which to grant relief. We therefore affirm the
defendant's conviction and the denial of his motion for a new
trial.
1. Background. a. The trial. We summarize the essential
facts presented at trial, most of which are set forth in our
decision in Chatman, 466 Mass. at 328-330. The defendant had a
hostile relationship with his mother, the victim. On February
10, 2000, at 2:30 P.M., the defendant telephoned 911 to report
that his mother had been shot. Earlier that day, between 11
A.M. and noon, the defendant had told the aunt that he was going
to "work out" at Franklin Park. He also had asked her where she
kept the mop and bucket, which he wanted to use to clean his
room on his return.
The Commonwealth presented a circumstantial case against
the defendant at trial. A pathologist testified that, based on
the rigidity of the victim's body at the time it was found,
death occurred between 8:30 A.M. and 12:30 P.M. There was
evidence that the body had been moved to the aunt's bedroom,
where the police first viewed it, including deoxyribonucleic
5, 2014, order denying the motion. See Mass. R. A. P. 4 (b), as
amended, 431 Mass. 1601 (2000). However, we will consider the
merits of the appeal pursuant to our authority under G. L.
c. 278, § 33E.
4
acid (DNA) testing that showed bloodstains belonging to the
victim in the hallway, the bathroom, and the kitchen; in the
defendant's bedroom, the defendant had left a bloody
fingerprint. Further DNA testing indicated that blood found on
the defendant's clothing and sneakers matched that of the
victim. Bloody footprints were found in the bathroom, and the
evidence indicated that washcloths had been used to soak up some
of the blood.
The defendant sought to rebut the evidence offered by the
Commonwealth, and unsuccessfully presented an alibi defense
tending to show that he was at Franklin Park at the time of the
victim's death.
b. The defendant's competency at trial. The issue of
competency to stand trial was first raised six years after the
trial in the defendant's May, 2008, motion for a new trial.
Chatman, 466 Mass. at 327-328, 335-336.
At the evidentiary hearing in 2014, the defendant called
ten witnesses in support of his position: Ray Walden, Dr. Mark
Hanson,2 and Patricia Hilliard,3 who treated the defendant during
2
In 1991, Dr. Mark Hanson diagnosed the defendant with a
paranoid disorder. The disorder manifested itself in
misperceived threats everywhere around the defendant, including
among those people closest to him. Hanson reported that the
defendant was pleasant and polite. Hanson did not offer an
opinion as to the defendant's competency at the time of trial.
5
his early teens and into his high school years; trial counsel,
John Bonistalli; Sharon Church, who was co-counsel at the trial;
and Doctors Marion Smith, Joseph Grillo,4 Charles Drebing, Robert
H. Joss, and Naomi Leavitt, mental health professionals who were
responsible for either treating or diagnosing the defendant
after trial.5
Trial counsel Bonistalli testified that he began
representing the defendant in 2000, and that he settled on an
alibi defense based on his meetings with the defendant and his
review of the police records. The defendant insisted that he
did not commit the crime, so Bonistalli's reasonable doubt
3
Starting in 1992 and lasting until 1999-2000, Patricia
Hilliard met with the defendant most days after school as part
of the Career and Life United in Boston. While the defendant
never told Hilliard about his diagnosed mental illness, she
perceived the mental health issues with which the defendant was
afflicted. Hilliard described her relationship with the
defendant as very warm. They communicated about his academic
and career goals, in which she testified he was very much
invested. Hilliard did not offer an opinion as to the
defendant's competency at the time of trial.
4
Dr. Joseph Grillo, a clinical psychologist, met with the
defendant in February or March, 2002, while he was in prison.
The defendant reported auditory hallucinations, depression, and
anxiety. Dr. Grillo noted that the defendant was having trouble
getting used to the fact that he might be in jail for the rest
of his life. Dr. Grillo did not offer an opinion as to the
defendant's competency at the time of trial.
5
The parties stipulated as to the testimony of certain
individuals associated with the defendant who offered views of
his mental well-being. Having reviewed those stipulations, we
conclude that the information universally does not pertain to
the trial time period, and is therefore not relevant to our
analysis.
6
defense relied on the defendant's statements and his assistance
in reviewing the facts to establish an alibi. The defendant did
not report any of his mental health history to Bonistalli, and
Bonistalli did not notice anything to suggest that the defendant
was impaired by some mental illness. Bonistalli testified that
he had the impression that he was communicating with the
defendant, and that the defendant understood what Bonistalli was
talking about and was aware of the charges pending against him
and the significance of the trial. Bonistalli did not recall
any significant participation from the defendant during the
trial itself.
Co-counsel Church's testimony related to about a two-week
period, as she joined the defense team just a week before trial.
Church testified that, in conversations with Bonistalli, the
defendant insisted he did not commit the crime, but was instead
at Franklin Park. The defendant also went on "tangents."
During trial, the defendant sat silently and listened. Church
concluded that the defendant did not actively assist in the
preparation of the case, but did not offer an opinion as to the
defendant's competency to do so.6
6
The motion judge concluded that Sharon Church's testimony
was "of little value." The defendant argues this was an abuse
of discretion. We discern no error, given Church's minimal
involvement with the defendant.
7
Also admitted in evidence were reports written by licensed
medical health counsellors Darren Sandler, who, on January 25
and 26, the two days following the defendant's conviction,
interviewed the defendant at Massachusetts Correctional
Institution (M.C.I.), Concord; and Carrie Holowecki, who
evaluated the defendant at M.C.I., Souza-Baranowski on January
30. Sandler indicated that the defendant presented as "calm,"
"cooperative," and "euthymic," while Holowecki reported that,
though "nervous," the defendant was "alert," "oriented," and
"logical," and had "good eye contact." Sandler reported that
the defendant had many legal questions regarding his appeal and
was in "shock" over his life sentence, remarking that it was
"unbelievable." Neither noted any concern over any mental
health issues until February 13, 2002, when Holowecki, in her
second evaluation of the defendant, recorded that the defendant
was experiencing "some paranoia" but remained "alert,"
"oriented," and "cooperative."
Dr. Smith, a psychiatrist, testified that she evaluated the
defendant on February 20, 2002. Smith eventually diagnosed the
defendant with schizoaffective disorder, and she was concerned
that the symptoms with which the defendant presented existed
prior to his incarceration. Smith did not offer an opinion as
to the defendant's competency at the time of trial.
8
The defendant hired Dr. Joss, a forensic psychologist, in
connection with the motion for a new trial. Joss testified that
he met with the defendant, in connection with his initial
evaluation, on three occasions, in March and December, 2005, and
February, 2006, and interviewed the defendant by telephone in
January, 2006. He also reviewed records of the case dating back
to the 1970s. Aside from the defendant, Joss conducted two
other telephone interviews: first with Ray Walden, an
independent clinical social worker who had diagnosed the
defendant with paranoid personality disorder at the age of
twelve or thirteen;7 and second with Dr. Prudence Baxter, a
forensic psychiatrist with whom Bonistalli had spoken briefly
about the possibility of a criminal responsibility defense prior
to trial.8 In addition, Joss consulted with Dr. Drebing, who, at
Joss's request, had conducted a neuropsychological evaluation of
the defendant in 2005 and had diagnosed him with a "psychotic
spectrum disorder, such as possibly a delusional disorder,
7
Ray Walden testified that the diagnosed paranoia did not
prevent him from communicating with the defendant. Walden did
not offer an opinion as to the defendant's competency at the
time of trial.
8
John Bonistalli, after speaking with Baxter, concluded
that such a defense was not tenable because, among other things,
the defendant insisted he had not committed the crime.
9
schizoaffective disorder, or a psychosis not otherwise
specifi[ed]."9
Dr. Joss, who had submitted an affidavit in 2008 based on
the foregoing evidence, further testified that his opinion at
the time of the affidavit and at the time of the hearing, was
that the defendant "lacked competence to stand trial" at the
time of trial and had problems "in his ability to rationally
understand the proceedings and . . . [to] rationally . . .
assist counsel." He also admitted that, in reaching this
conclusion, he had not spoken to Bonistalli or Church. Joss
eventually spoke to Bonistalli for fifteen minutes on the
telephone on March 31, 2014, the day before testifying at the
evidentiary hearing. Joss was the only mental health expert to
offer an opinion regarding whether the defendant was competent
at the relevant time.
The period between the May, 2008, filing of the motion for
a new trial and October, 2011, when the motion judge first
denied the motion without a hearing, is noteworthy in that the
defendant was evaluated twice, pursuant to court orders, for
competency to participate in the motion hearing. Dr. Leavitt
testified that she conducted both evaluations, the first of
9
Dr. Drebing also testified that the defendant's
intelligence quotient (IQ) "falls in the low average to
borderline retarded range." Drebing did not offer an opinion as
to the defendant's competency at the time of trial.
10
which was prompted by and occurred after the defendant had an
outburst in court. Both evaluations focused specifically on
competency as to the motion (and not the trial) period.
Leavitt, in her initial evaluation, which was conducted to
determine whether the defendant was competent to recommence the
proceedings on the first motion for a new trial, presented an
equivocal opinion as to the defendant's competency: the
defendant had an adequate understanding of the proceedings and
ability to make reasoned decisions; however, his ability to work
meaningfully with counsel was compromised due to his lack of
focus and social impediments. Specifically, the defendant did
not trust appellate counsel. Therefore, Leavitt concluded, the
defendant was competent to participate in the motion hearing
only so long as he did not have to testify or appear in court.
Because the first evaluation did not result in a firm
opinion as to the defendant's competency, Leavitt conducted a
second evaluation in December, 2010, after the defendant had
begun taking medication. In that evaluation, Leavitt opined
that the defendant was competent to participate in the motion
hearing. The defendant's first motion for a new trial was
denied, and we reversed for an evidentiary hearing. Chatman,
466 Mass. at 339.
In denying the defendant's motion for a new trial on
remand, the judge discredited Dr. Joss's opinion at the
11
evidentiary hearing as having no factual underpinnings.
Although the judge acknowledged that the defendant suffered from
a mental illness, which she concluded "waxed and waned at
various times throughout his life," she determined that "[a]
defendant may have a mental illness or condition[ and] still be
competent to stand trial."
The defendant claims it was an abuse of discretion to deny
the motion for a new trial and to discredit Joss's testimony.
We disagree.
2. Discussion. The only argument the defendant raises in
this combined appeal from his conviction and from the denial of
his motion for a new trial is that the motion for a new trial
was wrongly denied.
"The trial judge . . . may grant a new trial at any time if
it appears that justice may not have been done." Mass. R. Crim.
P. 30(b), as appearing in 435 Mass. 1501 (2001). The burden
rests on the moving party to prove the facts on which he or she
relies in support of the motion. See Chatman, 466 Mass. at 333.
The judge may rely on her knowledge of the trial in reaching a
conclusion regarding the motion for a new trial. Commonwealth
v. Grace, 370 Mass. 746, 752-753 (1976).
"When this court reviews a defendant's appeal from the
denial of a motion for a new trial in conjunction with his
direct appeal from an underlying conviction of murder . . ., we
12
review both under G. L. c. 278, § 33E" (citation omitted).
Commonwealth v. Jackson, 471 Mass. 262, 266 (2015). That is to
say, "we review the denial of that motion to determine if the
judge committed an abuse of discretion or other error of law
and, if so, whether such error created a substantial likelihood
of a miscarriage of justice." Chatman, 466 Mass. at 333. An
abuse of discretion exists when the motion judge made "a clear
error of judgment in weighing the factors relevant to the
decision, . . . such that the decision falls outside the range
of reasonable alternatives" (citation and quotations omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Our
review "extends special deference to the action of a motion
judge who was also the trial judge." Commonwealth v. Waters,
410 Mass. 224, 231 (1991), quoting Commonwealth v. Grace, 397
Mass. 303, 307 (1986).
a. Competency. Under both the Fourteenth Amendment to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights, "[i]t has long been accepted that a
person whose mental condition is such that he [or she] lacks the
capacity to understand the nature and object of the proceedings
against him [or her], to consult with counsel, and to assist in
preparing his [or her] defense may not be subjected to a trial"
(citation omitted). Commonwealth v. Brown, 449 Mass. 747, 759
(2007). See Medina v. California, 505 U.S. 437, 439 (1992) ("It
13
is well established that the Due Process Clause of the
Fourteenth Amendment prohibits the criminal prosecution of a
defendant who is not competent to stand trial").
With the present case, we have our first opportunity to
review a motion judge's interpretation of the Chatman test.
Therein, we articulated a new framework appropriate for
evaluating a defendant's competency postverdict where the issue
had not been raised at trial. Chatman, supra at 335-336. Like
the traditional competency test, the hallmark of a postverdict
competency inquiry is the defendant's "functional abilities,"
Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004), as opposed
to "the presence or absence of any particular psychiatric
diagnosis." Id. To determine if a criminal defendant is
competent, we look to (1) whether the defendant has "sufficient
present ability to consult with his [or her counsel] with a
reasonable degree of rational understanding," and (2) whether he
or she has "a rational as well as factual understanding of the
proceedings" (citation omitted). Commonwealth v. Bynum Harris,
468 Mass. 429, 443 (2014).
The newly articulated test differs from the traditional
competency proceeding not in substance but in burden of proof.
If the issue is raised at trial, the Commonwealth would bear the
burden of establishing competence by a preponderance of the
evidence. See Commonwealth v. Hilton, 450 Mass. 173, 179
14
(2007). The postverdict test, on the other hand, requires that
the defendant establish "by a preponderance of the evidence that
the Commonwealth would not have prevailed had the issue been
raised at trial," Chatman, 466 Mass. at 336, meaning that the
defendant bears the burden of establishing that, had the issue
been raised before or during trial, the Commonwealth could not
have proved either the first or the second prong of the
competency test. See id. See also Bynum Harris, supra at 443.
The defendant, therefore, need not make a showing that he was
incompetent; instead, the defendant may satisfy his or her
burden by showing "that the weight of the evidence of competence
and the weight of the evidence of incompetence are in
equipoise." Chatman, supra at 336, n.7.
Because a postverdict motion requires a retrospective
determination of the defendant's competency, "the weighing
process must necessarily place greater emphasis on evidence
derived from knowledge contemporaneous with the trial." United
States v. Makris, 535 F.2d 899, 907 (5th Cir. 1976), cert.
denied, 430 U.S. 954 (1977). For that reason, when the
postverdict motion is heard by the same judge as presided over
the trial, the "judge's determination of competency is entitled
to substantial deference 'because the judge had the opportunity
to . . . evaluate the defendant personally.'" Brown, 449 Mass.
at 759, quoting Commonwealth v. Prater, 420 Mass. 569, 574
15
(1995). The presence or absence of a mental illness is
informative on the question of competency, but not dispositive.
See Commonwealth v. Robbins, 431 Mass. 442, 448 (2000).
i. Competency -- first prong. In determining whether the
defendant had a present ability to consult with his lawyer with
a degree of rational understanding, we look to whether the
defendant has the capacity to communicate and cooperate
effectively. See Commonwealth v. Crowley, 393 Mass. 393, 399
(1984). Specifically, we consider whether a "defendant's mental
. . . condition . . . prevented counsel from developing a
defense [and] . . . whether the defendant understood [counsel's]
explanations of that defense or [counsel's] assessment of the
risks of trial." Goodreau, 442 Mass. at 353.
In addition to testimony at the evidentiary hearing, the
record is replete with evidence regarding the undisputed
proposition that the defendant has, since childhood, suffered
from a mental illness. The testimony, affidavits, assessments,
and evaluations paint a picture of an individual whose mental
issues have affected his ability to socialize and acclimate to
his community.
However, while the defendant's mental illness undisputedly
has existed since his youth, the symptoms he shows and his
interactions with people have varied, or, as the motion judge
put it, "waxed and waned." At times it is clear to those around
16
him that the defendant is suffering from a mental illness, while
at other times he presents as calm, engaged, and communicative.
Moreover, there is no evidence tending to equate the defendant's
mental illness with an inability to communicate. In fact, the
testimony indicates the opposite: doctors and mental health
professionals alike have indicated that, whether or not the
defendant was on medication at the time, and whether or not the
defendant disclosed his history of mental illness, he was able
to communicate and exhibited an understanding of his condition.
In any event, competency and the defendant's ability to
communicate and cooperate is a time period-specific inquiry, and
our analysis must start with what little evidence we have about
the defendant's mental state around the trial period.
We first consider the testimony of trial counsel, as it
"may . . . provide relevant evidence as to the defendant's
ability to understand the nature of the case against him and his
ability to assist in the defense, as well as how the defendant
helped shape the defense, if at all." Chatman, 466 Mass. at
339. Because of the time-determinative nature of our inquiry,
trial counsel's testimony is critical in either substantiating
or contradicting a postverdict competency challenge.
Bonistalli testified that he had met with the defendant on
several occasions and had spoken with him about the police
reports, about what occurred on the day when the defendant's
17
mother was killed, and about the factual pieces required to
proffer an alibi defense.10 He saw no indications that the
defendant's condition resulted in an inability to communicate or
cooperate with him as trial counsel.
The defendant presents Dr. Joss's testimony to establish
that the defendant could not communicate with Bonistalli
rationally. Joss pointed to several of the defendant's
statements (made years after the trial period) to establish that
the defendant did not trust Bonistalli. For instance, the
defendant indicated he believed Bonistalli may have been working
with the prosecutor, and therefore could not be trusted.
This testimony presents several problems. First, the only
time-relevant statements tending to show that the defendant's
paranoia caused him not to trust his trial attorney are those of
the defendant. In the past, we have indicated that a motion
judge is entitled, in the competency context, to discredit a
10
During his testimony, it became apparent that
Bonistalli's recollection of his representation of the defendant
was exhausted as to several important issues. For instance, he
did not recall whether he had spoken to the defendant about a
possible criminal responsibility defense, or the extent to which
they discussed the forensic evidence against the defendant.
This reflects another problem with Dr. Joss's decision not to
speak to Bonistalli until 2014; had he considered evidence of
trial counsel's representation of the defendant when he began
his evaluations, it is possible we would have had a more robust
record as to the defendant's participation before and during
trial.
18
defendant's own self-serving statements. See Goodreau, 442
Mass. at 351.
Second, and more importantly, other parts of the record
belie the defendant's assertions, and therefore Dr. Joss's
testimony. Dr. Leavitt included in her report that the
defendant did not have trust issues with his trial attorney, and
that his trial attorney gave him "the information straight up."
Joss even noted in his evaluation the defendant's statement that
"[he] trusted [Bonistalli] to do his job."
Third, the purported link between the defendant's illness
and his inability to communicate with trial counsel is
contradicted by the findings of mental health experts before and
immediately after trial. Both Walden and Hilliard, who met with
the defendant in his youth, reported that the defendant's mental
illness had not impeded their communication or the defendant's
comprehension of their interactions. Reports written by
licensed medical health counselors at M.C.I., Concord and
M.C.I., Souza-Baranowski days and weeks after the defendant's
arrest indicated that the defendant was able to understood and
discuss the ramifications of the guilty verdict against him.
Fourth, Bonistalli's testimony and the judge's viewing of
the defendant's behavior at trial contradict the defendant's
statements. See Commonwealth v. DeMinico, 408 Mass. 230, 236
(1990), quoting Commonwealth v. Hill, 375 Mass. 50, 58 (1978)
19
("defendant's demeanor at trial and response to questioning by
the judge . . . [are] relevant to a decision on the merits of
the competency issue"). Because the trial judge never raised
the issue of competency, we can infer that the defendant's
behavior during trial was not so outside the ordinary as to
raise a doubt about his competency.11
The defendant contends that a symptom of his mental illness
was that the illness operated to conceal itself from Bonistalli
at trial, which alone indicates a lack of competency. That is,
the argument goes, that it would have been irrational to conceal
a history of mental health issues from counsel when facing
charges of murder in the first degree; therefore, the defendant
must not rationally have chosen to conceal his mental health
history but instead did so because of his mental illness.
This argument finds no support in the record. The
defendant has, at various times, either disclosed his mental
health history -- or chosen not to disclose it -- to multiple
individuals, both those whom he purportedly trusted and those he
had just met. For instance, the defendant never told Hilliard
about his prior mental health issues, but disclosed them to Dr.
11
If there is a sufficient reason to doubt the defendant's
competency, the judge must raise it sua sponte and hold a
hearing. See Commonwealth v. Hill, 375 Mass. 50, 54 (1978),
quoting Commonwealth v. Vailes, 360 Mass. 522, 524 (1971).
20
Leavitt.12 Bonistalli was never made aware of the defendant's
diagnoses or treatment, but the defendant related them to
appellate counsel. We therefore cannot infer from the record
that the decision not to disclose a history of mental illness to
his trial counsel was made due to a symptom of such illness as
opposed to a rational decision by the defendant. Moreover, the
fact that a defendant may not advance the most helpful defense
does not necessarily equate with incompetence to stand trial.
See Commonwealth v. Blackstone, 19 Mass. App. Ct. 209, 211
(1985) ("defendant's refusal to admit to his own mental illness
and to employ it in his defense is not necessarily a
manifestation of the mental illness itself. The world is full
of people who do not own up to their limitations, often with
remarkable success").
Even if the motion judge were to have credited Joss's
testimony that the defendant had a mental illness that was in
full effect during the trial period, this alone would not be
sufficient to persuade us that the defendant has met his burden.
One can both have a mental disease or deficiency and still be
competent to stand trial; the two are not mutually exclusive.
See Robbins, 431 Mass. at 448 ("The defendant's argument
confuses the presence of mental illness with lack of competence
12
The defendant also told Sandler, Holowecki, and Dr. Smith
that he had been prescribed an antipsychotic medication as a
child.
21
to stand trial"). The same is true about a defendant with a low
intelligence quotient. See Prater, 420 Mass. at 574-575. We
agree with the motion judge that the evidence tends to show that
the defendant cooperated and communicated with his attorney,
highlighted by the fact that, according to Bonistalli,
testifying as to his contemporaneous interactions with the
defendant, the defendant "insisted" that he did not kill the
victim and that Bonistalli pursue an alibi defense. It was
therefore not an abuse of discretion for the judge to conclude
that the defendant did not meet his burden on the first prong of
the competency test.
ii. Competency -- second prong. We are likewise
unpersuaded by the defendant's assertion that he did not have a
rational understanding of the proceedings against him. This
second prong considers whether the defendant understood the
crime of which he or she "was accused, who the important people
[were] in the court room and what their roles [were], [and] what
[the consequences would be] if he [or she] [was] found guilty."
Bynum Harris, 468 Mass. at 443, quoting Vuthy Seng v.
Commonwealth, 445 Mass. 536, 546 (2005), S.C., 456 Mass. 490
(2010). The defendant would not sufficiently understand the
proceedings "if his mental condition preclude[d] him from
perceiving accurately, interpreting, and/or responding
appropriately to the world around him." Lafferty v. Cook, 949
22
F.2d 1546, 1551 (10th Cir. 1991). The test is flexible enough
to accommodate a defendant with a mental illness, as it "is
satisfied upon a showing that the defendant possesse[d] at least
a 'modicum' of rational understanding." Doe, Sex Offender
Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.
App. Ct. 610, 613, n.4 (2012), quoting Blackstone, 19 Mass. App.
Ct. at 211.
The only evidence tending to establish the defendant's
level of understanding of the proceedings at trial, aside from
Bonistalli's testimony, comes from Dr. Joss's interviews that
occurred three and four years after the defendant's conviction.
Joss put a great emphasis on the defendant's purported
misunderstanding of the key players. For instance, the
defendant thought Bonistalli had a "cop look," and may therefore
have been working with the prosecutor. The defendant reported
that he believed that Bonistalli, who is white, would have an
advantage at trial over the prosecutor, who was Asian. The
defendant told Joss that the judge was always on the
prosecutor's side, and that the judge "was making sad faces."
The defendant also indicated that the prosecutor had used his
peremptory strikes to take homosexuals and white women off the
jury.
However, although purportedly concluding that the
defendant's illness precluded his having a rational
23
understanding of the proceedings, Joss's testimony supports the
opposite conclusion -- that, in fact, the defendant did have a
rational understanding of the crime for which he was on trial,
the important people involved in his prosecution and defense, as
well as the consequences of a verdict against him. Joss
admitted on cross-examination that the defendant could follow
what was going on at the trial in 2002: he was aware that he
was on trial for murder; understood his attorney to be working
on his behalf; appreciated that the prosecutor was working
against him; knew it was the judge's role to be fair; and
recognized that the jury would reach the final verdict. And,
looking back on the trial, the defendant knew that there had
been witnesses who testified against him and that he had been
found guilty. As to the comments about the ethnicities of
Bonistalli and the prosecutor, Joss testified that such
statements were "consistent with [the defendant's] history of
racism," but not irrational. In sum, Joss's testimony regarding
his findings presents a defendant who may have misconceived
portions of the proceedings due to preexisting prejudicial
stereotypes, but not one who could not rationally understand
those proceedings.
Joss's testimony on cross-examination also undermined many
of his findings. Dr. Joss either admitted that he had no basis
to corroborate or substantiate many of the defendant's
24
purportedly irrational claims because he did not conduct
independent research, or conceded that the statements could
indeed have been rational. For instance, Joss's credibility as
to the rationality of the defendant's statements is dubious in
that he could not comment on the prosecution's use of peremptory
strikes during jury selection because he had not spoken to
anyone present; he was unable to determine whether there was any
basis for the defendant's statement that Bonistalli had a "cop
look" because Joss had only spoken to Bonistalli on the
telephone and had never met him; and Joss admitted that he has,
in the past, told defense attorneys that they should not speak
to the prosecutor in front of the defendant if the defendant has
shown signs of paranoia, indicating that it is not unusual for a
defendant to worry about his attorney working with the
prosecution. Taken together, these admissions indicate that the
defendant did indeed have some underlying misperceptions about
people based on their appearances, but that those misconceptions
alone were not enough to show that his rational understanding of
the proceedings was compromised. It is more important in
establishing a "modicum" of rational understanding that the
defendant understands the role and function of the key players
and court mechanisms than it is that he put aside any lingering
bigotry.
25
We infer no support for Dr. Joss's opinion about the
defendant's competency at the time of trial from Dr. Leavitt's
first evaluation of the defendant for the motion for a new trial
proceeding. We acknowledged in Chatman that Leavitt "made a
diagnosis of long-standing mental illness virtually identical to
that of Joss." Chatman, 466 Mass. at 339. However, we note a
distinct difference between Leavitt's findings and those of Joss
that affect our analysis of the defendant's competence at the
time of trial: Leavitt was reviewing the defendant's competency
for a motion for a new trial hearing, and her findings were
therefore related to appellate counsel, as opposed to trial
counsel. In reaching her conclusion that the defendant could
not contribute to his defense, Leavitt noted that the defendant
had difficulties believing his appellate attorney. Leavitt also
included in her evaluation that the defendant did not report any
trust difficulties with his trial attorney, and that his trial
attorney gave him "the information straight up." We cannot
conclude from this evaluation that the defendant's issues with
appellate counsel reflect similar problems during the course of
trial with trial counsel, or whether any later mental issues
could be due to the fact that, according to the defendant, his
"world came to an end" when he was sentenced.
The defendant seems to argue that the Commonwealth's
failure to proffer evidence at the motion for a new trial
26
indicates that its position is tenuous. To be clear, the
Commonwealth bears no burden to establish that the defendant was
competent at the time of trial, and may rest on impeachment of
the defendant's arguments if it so chooses. However, should the
Commonwealth eschew the opportunity to present argument or offer
the opinion of an expert, it does so at its own peril.
We discern no error in the motion judge's conclusion that
the defendant did not meet his burden, or in her decision to
discredit Dr. Joss's opinion. As noted, Joss, prior to reaching
his conclusion that the defendant was incompetent during the
critical time period leading up to and encompassing trial, did
not meet or consult with Bonistalli or Church. See Goodreau,
442 Mass. at 354 ("When weighing the adequacy of the materials
submitted in support of a motion for a new trial, the judge may
take into account the suspicious failure to provide pertinent
information from an expected and available source"). It was not
unreasonable for the motion judge to conclude that, while Joss
is no doubt qualified to opine regarding the defendant's mental
illness and about his competence at the time of his interviews,
it was problematic that he reached the conclusion that the
defendant was unable meaningfully to consult with his attorney
or rationally to understand the proceedings at trial without
speaking to the only people who could offer insight into that
time period, aside from the defendant.
27
Because we agree that the defendant did not establish by a
preponderance of the evidence that the Commonwealth would not
have been able to meet its burden at a competency proceeding had
the issue been raised prior to or at trial, we affirm the denial
of the defendant's motion for a new trial. As this was the only
issue raised by the defendant in his appeal from his convictions
and from the denial of his motion for a new trial, we will
proceed to our G. L. c. 278, § 33E, review.
b. Review under G. L. c. 278, § 33E. We have conducted a
thorough review of the record, in accordance with G. L. c. 278,
§ 33E, and have determined that no basis exists which would
require us to remand the case, order a new trial, or to set
aside or reduce the jury's verdict of murder in the first
degree. We therefore decline to exercise our authority. The
judgment and the order denying the motion for a new trial are
affirmed.
So ordered.