Commonwealth v. Jones , 479 Mass. 1 ( 2018 )

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SJC-10944
COMMONWEALTH vs. RYAN JONES.
Bristol. November 10, 2017. - February 20, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Mental Impairment. Developmentally Disabled Person.
Constitutional Law, Sentence, Cruel and unusual punishment.
Practice, Criminal, Competency to stand trial, Sentence.
Indictment found and returned in the Superior Court
Department on August 17, 2006.
A hearing on the defendant's competency to stand trial was
held before D. Lloyd Macdonald, J., and the case was tried
before Gary A. Nickerson, J.
Brett J. Vottero for the defendant.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. A Superior Court jury found the defendant
guilty of murder in the first degree on theories of deliberate
premeditation and extreme atrocity or cruelty in the death of
Valerie Oransky on July 22, 2006. Prior to and during trial,
the defendant maintained that he was not competent to stand
2
trial due to an organic brain injury he had suffered as an
infant and a current diagnosis of pervasive developmental
disorder not otherwise specified. The defendant was the subject
of competency hearings before five different Superior Court
judges, and was found competent to stand trial at the first,
third, fourth, and fifth hearings. At trial, his defense was
that he was not criminally responsible.
On appeal, the defendant argues that the judge who
conducted his third competency hearing erred in finding him
competent to stand trial notwithstanding testimony from both
prosecution and defense experts that the defendant was not
competent. He also argues that a mandatory sentence of life in
prison without the possibility of parole, imposed on a
developmentally disabled individual, constitutes cruel and
unusual punishment in violation of Federal and State
constitutional rights. Finally, the defendant asks us to use
our extraordinary power under G. L. c. 278, § 33E, to order a
new trial or reduce the verdict. For the reasons that follow,
we affirm the conviction and decline to exercise our authority
to grant relief under G. L. c. 278, § 33E.
1. Procedural history. In August, 2006, a grand jury
indicted the defendant on one charge of murder in the first
degree. He was arraigned in the Superior Court in September,
2006, and pleaded not guilty. In October, 2007, defense counsel
3
filed a motion seeking an examination of the defendant for
competency pursuant to G. L. c. 123, § 15 (a). The defendant
was evaluated for competency in December, 2007, and was found
competent to stand trial. In January, 2008, the defendant was
committed to Bridgewater State Hospital (Bridgewater) for
evaluation pursuant to G. L. c. 123, § 15 (b), after providing
notice that he intended to rely on a defense of a lack of
criminal responsibility. In February, Bridgewater sought an
extension of the commitment, pursuant to G. L. c. 123, § 15 (b).
In January, 2009, shortly before the defendant's then-scheduled
trial, the judge who was to have been the trial judge ordered
the defendant again committed to Bridgewater for observation,
pursuant to G. L. c. 123, § 15 (b). Later that month, the
Department of Mental Health filed a motion for an extension of
the commitment. That motion was allowed. In March, 2009,
following a competency hearing, a different judge found the
defendant not competent to stand trial, stayed the trial, and
ordered the defendant to be held in the Bristol County house of
correction for a period of six months, with a status hearing to
be conducted at that point. In October, 2009, the Commonwealth
sought a competency evaluation, and the judge who had ordered
the defendant committed in January, 2009, again ordered him
committed to Bridgewater for observation. In February, 2010,
after a competency hearing, that judge found the defendant
4
competent to stand trial. In August, 2010, after a subsequent
evaluation, another judge found the defendant competent. During
the course of the trial in October, 2010, the trial judge (who
had not previously been involved in the case) ordered the
defendant evaluated for competency based on his behavior in the
court room and in a holding cell in the court house. The judge
then found the defendant competent. At the close of the
Commonwealth's case, and again at the close of all the evidence,
the defendant moved for a required finding of not guilty by
reason of insanity.
Overall, the defendant was the subject of four competency
hearings prior to trial, and a fifth competency hearing during
trial. He was found competent to stand trial after the first
hearing, incompetent at the second hearing, and competent at the
third, fourth, and fifth hearings.1
The judge instructed the jury on murder in the first degree
on theories of deliberate premeditation and extreme atrocity or
cruelty, murder in the second degree, manslaughter, and the
defense of not guilty by reason of insanity. The jury convicted
1
Further details of the competency proceedings are
discussed infra, in our consideration of the defendant's
challenge of the finding of competency at his third hearing.
5
the defendant of murder in the first degree on theories of
deliberate premeditation and extreme atrocity or cruelty.2
2. Trial. We recite the facts the jury could have found,
reserving some facts for later discussion.
a. Commonwealth's case. In July, 2006, the defendant was
working as a dishwasher at a restaurant in Dartmouth. He had
been working at the restaurant for more than three years, and
his performance was generally satisfactory, but he sometimes had
disputes with the manager (victim) over his use of the
dishwasher to wash pots and pans. The defendant was supposed to
use the dishwasher for silverware, glasses, and dishes, but was
to wash pots and pans by hand. The victim repeatedly told the
defendant not to put the pots and pans in the dishwasher. He
often would do so anyway, and undertook various methods to
conceal this from the victim. The two argued about the use of
the dishwasher on many occasions.
At some point, the defendant began to express his anger
about the victim's instructions on dishwashing to other
employees. The defendant told one coworker, "I'm going to kill
that f'ing B." Another coworker reported that, at least once a
week, the defendant made gestures such as holding up his middle
finger behind the victim's back. Another coworker said that the
2
At sentencing, the judge ordered that prison authorities
be apprised of the defendant's mental condition.
6
defendant would "have a bung[e]e cord in his hand and he would
snap it like he was going to choke [the victim] with it."
Approximately two weeks before the stabbing, the defendant told
one of his coworkers that he was going to take the victim to the
bathroom early in the morning before the restaurant got busy and
stab or strangle her. Several of the restaurant employees
reported this statement to the victim, but she interpreted it as
a joke.
On July 22, 2006, the defendant arrived at work earlier
than he did ordinarily. He told the victim that something was
wrong with one of the toilets, and they walked toward the
women's restroom. Shortly thereafter, the defendant left the
restroom and told a coworker that she should telephone 911
because someone had come through the back door with a knife and
had stabbed the victim. By the time paramedics arrived, the
victim was not breathing. She had been stabbed multiple times,
strangled, and beaten. The medical examiner determined that the
cause of death was multiple stab wounds, with injury to the
aorta, lung, and kidney, and blunt trauma with brain contusions.
A knife, a bungee cord, and a pipe from the dishwasher were
found in the bathroom stall where the victim's body was found.
A membership card for a wholesale club with the name of someone
who did not work for the restaurant also was found on the floor
near the victim.
7
While many of the defendant's coworkers were visibly upset
at news of what had happened to the victim, the defendant was
described as being calm. One of his coworkers noticed that he
had blood spots on his face and glasses and was hiding his left
hand. The defendant told some coworkers and the investigating
officers that the perpetrator was a black man wearing a white
shirt, black pants, a dark hooded sweatshirt, white sneakers,
leather gloves, and a black mask. He said that the man had come
through the back door with a knife and initially tried to stab
him, before stabbing the victim and running out the back door.
Some of the defendant's coworkers immediately left the
restaurant to look for the perpetrator; they were unable to find
anyone matching the defendant's description. A police officer
with a canine trained to track scents also was unable to locate
the suspect the defendant had described.
Several restaurant employees had seen the defendant heading
toward the bathroom with the victim, and the investigation
almost immediately focused on the defendant. Dartmouth police
officers brought the defendant to the police station on the day
of the stabbing and interviewed him for a number of hours. The
defendant initially told police the same thing he had said at
the scene, that an unknown man had burst in through the back
door and stabbed the victim. The defendant had visible cuts on
one hand and on his left side, which he said he had sustained
8
when he attempted to defend himself from the victim's assailant.
Ultimately, after what the investigating officer described as
"confrontational" questioning, the defendant told police that he
had stabbed the victim; it was a "mistake," but he did not know
"what else . . . he [was] going to do" because she kept
"nagging" him.
Deoxyribonucleic acid (DNA) tests on the blood found on the
defendant's glasses, socks, and watch matched the victim. The
defendant was a potential contributor to blood found on the
knife, a handicapped stall in the women's bathroom that had its
own sink, and the wholesale club card.
b. Defendant's case. After the Commonwealth rested its
case-in-chief, Dr. Ronald Ebert, a forensic psychologist,
testified as to the defendant's lack of criminal responsibility
on the day of the homicide. The defendant's father also
testified to the defendant's medical history, his developmental
issues, and his attendance at special education courses
throughout his schooling.
The father provided background information on the
defendant's mother's medical condition during pregnancy (a
uterine infection), the defendant's hospitalization and coma as
a result of spinal meningitis when he was six months old, and
the first signs of the defendant's developmental deficits, when
he was approximately two and one-half years old. The father
9
described the defendant as testing above age level for certain
skills and "well behind" for others. Although he was placed in
a special needs program, his ability to communicate verbally
with others was "minuscule" and he was resistant to change. The
defendant's seizure disorder first became apparent when he was
in first or second grade. The defendant resisted taking his
seizure medication and was hospitalized at least three times
because of seizures.
In elementary school, the defendant would at times act
inappropriately, throwing tantrums and sometimes barking and
crawling around on all fours. The defendant was prescribed
medication for attention deficit disorder. In fourth grade, the
defendant transferred to a new school, where he was regularly
bullied and beaten up by older students. After that, the
defendant began to shut down and interacted with others even
less. The defendant's parents were separated when he was ten
years old, and were divorced when he was thirteen; after the
separation, he lived primarily with his mother. In high school,
also in a special needs program, the defendant had "decent"
grades and did well in writing, while still demonstrating
difficulties with verbal communication.
After graduation, the defendant worked for brief periods at
a number of jobs that he obtained through an agency that helped
disabled people get jobs and then provided job coaching. He
10
also qualified for supplemental security income benefits because
of his development delays and seizure disorder. The dishwasher
position at the restaurant was the defendant's first long-term
job. The defendant's father drove him to work in the morning,
and his mother picked him up in the afternoon; his father picked
him up when his mother could not. The defendant's father would
take the defendant to a movie almost every week and noted that
there were times when the defendant was unable to distinguish
between the fictional people and events in the movies and
reality.
Ebert testified to the defendant's medical and educational
history, and to the defendant's probable mental state at the
time of the crime. Based on interviews with the defendant,
reviews of past records, neurological testing, and other
information, Ebert concluded that, at the time of the stabbing,
the defendant had been suffering from a mental defect that
impaired his ability to conform his conduct to the law or to
appreciate the criminality of his actions. Ebert testified that
the defendant suffers from pervasive developmental disorder not
otherwise specified, which is a variation of autism.3 Although
3
The version of the Diagnostic and Statistical Manual of
Mental Disorders in effect at the time of the defendant's
diagnosis, the DSM-IV, defines pervasive developmental disorder
not otherwise specified as
11
there was evidence that the defendant had planned the crime in
advance, it was a result of his disability, and he had been
unable to control his thought processes or behavior.
In rebuttal, the Commonwealth called Dr. Karin Towers, a
forensic psychologist who also had interviewed the defendant and
had reviewed the relevant records while working as a forensic
evaluator at Bridgewater. Towers testified that, in her
opinion, the defendant understood the wrongfulness of his
actions and had substantial capacity to conform his conduct to
the requirements of the law despite his pervasive developmental
disorder. She noted that the defendant had made decisions to
take the victim into the bathroom where no one could see what
was happening and to fabricate the story of the unknown
assailant. The defendant also told Towers that he had
"a severe and pervasive impairment in the development of
reciprocal social interaction associated with impairment in
either verbal or nonverbal communication skills or with the
presence of stereotyped behavior, interests and activities
where the criteria are not met for a specific Pervasive
Developmental Disorder, Schizophrenia, Schizotypal
Personality Disorder, or Avoidant Personality Disorder."
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 84 (4th ed. 2000).
The DSM-IV indicates that "this category includes 'atypical
autism.'" Id. The most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders, the DSM-V, notes that
"[i]ndividuals with a well-established DSM-IV diagnosis of . . .
pervasive developmental disorder not otherwise specified should
be given the diagnosis of autism spectrum disorder." American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 51 (5th ed. 2013).
12
considered whether to take the knife with him or to leave it,
and that, previously, he had controlled his anger toward the
victim.
3. Discussion. In this direct appeal, the defendant
raises two claims. First, he challenges the finding that he was
competent to stand trial. He focuses particularly on the third
competency hearing, and contends that it was error for the judge
to find him competent given that both the prosecution and
defense experts testified that he was not competent. Second,
the defendant challenges the imposition of a mandatory sentence
of life imprisonment without the possibility of parole on a
developmentally disabled person; he argues that such a sentence
is a violation of the Eighth and Fourteenth Amendments to the
United States Constitution and art. 26 of the Massachusetts
Declaration of Rights.
a. Finding of competency. The defendant specifically
challenges the finding of competency after the third hearing.
To review adequately the appropriateness of the finding of
competency to stand trial at the third hearing, it is necessary
to consider the psychiatric evaluations, the previous hearings,
and testimony prior to the judge's decision, as well as the two
competency hearings that took place after the third hearing.
i. Initial evaluations and proceedings. Following his
arraignment, the defendant was ordered to be examined for
13
competency pursuant to G. L. c. 123, § 15 (a). In anticipation
of the competency hearings, the defendant met with multiple
clinicians, who also reviewed his medical and educational
history. Notably, the defendant contracted spinal meningitis
when he was six months old; he was hospitalized for several
weeks, first in a "stupor" and later in a coma. The illness
resulted in permanent, organic brain injury. In addition, he
has suffered from a seizure disorder since he was a very young
child. While the defendant has tested as being in the
borderline to low-average range on intelligence quotient (IQ)
tests, he has demonstrated significant impairment in language
processing and verbal communication and understanding from the
age of two years old. He has had difficulty in interacting with
people, was bullied as a child because of his lack of social
skills and inability to communicate, and exhibited outbursts and
uncontrollable behavior as a child. The defendant initially was
diagnosed with attention deficit disorder and oppositional
defiant disorder, and was treated with medication for
hyperactivity. The defendant attended special education classes
throughout his school career, but was able to graduate from high
school.
The general consensus of all the experts who testified at
the competency hearings, as well as many of the clinicians who
examined him as a child and as a teenager, was that the
14
defendant suffers from what is now known as "pervasive
developmental disorder not otherwise specified."
Ebert evaluated the defendant in January, 2007, at the
request of the defendant's attorney; Ebert's October, 2007,
report was considered at all the pretrial competency hearings.
Ebert also referred the defendant to Dr. Nancy Hebben for a
neuropsychological evaluation; Hebben conducted an evaluation of
the defendant in May, 2007. Ebert testified at the second,
third, and fourth competency hearings, and at trial, on behalf
of the defendant. Dr. Karin Towers and Dr. Sara Beszterczey
performed evaluations as ordered by the court; their reports
were also reviewed in conjunction with each of the competency
hearings.
Hebben administered a series of tests during the
neuropsychological evaluation, which she described in her
report. The defendant tested "low normal" or "borderline" in
many areas of cognitive functioning, but demonstrated a
significant deficit in verbal comprehension ability.
Considering all of the results in concert, she concluded that
the defendant's most appropriate diagnosis was pervasive
developmental disorder not otherwise specified, given his
impairments in verbal comprehension and social interaction.
Ebert had reached the same diagnosis. He also determined that
the defendant suffered from deficits in receptive and expressive
15
language, poor social skills, and rigidity in his behavior and
interests. Ebert concluded that, because of these impairments
and the defendant's inability rationally to understand the
proceedings against him and to assist his attorney, the
defendant was not competent to stand trial. While the defendant
could explain theoretically some of the roles of the
participants at a trial, he had difficulty in attempting to
apply those general concepts to his own situation, suggesting,
for example, that if he apologized for his behavior he could go
home.
At the first competency hearing, in December, 2007, a court
clinician, Dr. Barbara McElroy, testified, based on a brief
interview with the defendant and the reports by Ebert and
Hebben, that the defendant had a factual and rational
understanding of the proceedings against him and therefore was
competent to stand trial. McElroy indicated that she had two
main concerns: the defendant was not aware of the specific
charges he was facing, and did not seem to understand the
concept of plea bargains. McElroy concluded, however, that her
concerns were minor overall, and that they could be addressed
with continued education of the defendant by his attorney. To
support this finding, she noted that the defendant had a better
understanding when she met with him than he did when he
16
initially was evaluated by Ebert in January, 2007. The judge
found the defendant competent.
The case was assigned for trial in January, 2009. At the
end of December, 2008, the defendant requested another
competency examination. After an evaluation, a licensed
psychologist recommended further evaluation, and the defendant
was committed to Bridgewater for observation, pursuant to G. L.
c. 123, § 15 (b). In January, 2009, the Department of Mental
Health moved to extend the commitment, and a different Superior
Court judge allowed the motion. In February, 2009, Towers
conducted an evaluation of the defendant as ordered by the court
In February, 2009, Towers issued a report in which she noted
that the defendant possessed a superficial understanding of
court proceedings, but that it was unclear whether he truly
understood. A second competency hearing was scheduled.
At the second hearing, in March, 2009, Towers and Ebert
both testified that the defendant had a basic factual
understanding, but that they were concerned about his ability to
make decisions rationally regarding his case. At times, the
defendant would answer their questions without fully
understanding what was being asked. Towers opined that the
defendant might be able to overcome his deficits through
continued education. Ebert disagreed, testifying that, although
the defendant could repeat information given to him, his
17
processing of the information and his beliefs would not
necessarily change in response to new information. As an
example, Ebert referred to the defendant's belief that he would
be able to go home if he apologized to the judge. The judge
noted the difference in the experts' opinions as to possible
future competency, but concluded based on the consensus of
Towers and Ebert that the defendant was at that time not
competent to stand trial.
ii. Determination of competency at the third hearing. The
third competency hearing took place over the course of three
days in January and February, 2010. In October, 2009,
Beszterczey performed an evaluation of the defendant as ordered
by the court. She and Ebert testified at the hearing, along
with three of the defendant's former coworkers and the
defendant's former job coach. The lay witnesses testified that,
other than his decision to put pots and pans in the dishwasher,
the defendant was able to perform his job well, and that they
occasionally would have casual conversations with him. Ebert
again opined that the defendant was not competent to stand
trial. Beszterczey commented that she believed the defendant
might not be cooperating fully, interfering with her ability to
complete a full competency interview, but she did not think that
any potential malingering necessarily meant that the defendant
was competent. She concluded that the defendant was presenting
18
with significant deficits in abilities associated with
competency to stand trial, but that it was possible he could
become competent with further education.
In a nine-page memorandum and order, a judge who had not
previously been involved in the case ruled that the defendant
was competent to stand trial. The judge pointed to the
defendant's low-average IQ score; his "satisfactory three[-]year
job history, where he impressed his [coworkers] by his diligence
and essential normality"; the experts' testimony that the
defendant's diagnosis had not changed since the time of the
killing; and the comments in Beszterczey's evaluation about
potential malingering.
iii. Final pretrial competency hearing. Approximately six
months later, during a hearing before a different judge, defense
counsel requested another competency hearing. The defendant was
examined for competency for a fourth time at the end of August,
2010. Dr. Leah Logan, a court-based clinical psychologist,
testified after reviewing the defendant's records and meeting
with him for approximately one hour. Logan concluded that,
while the defendant had needed some questions explained again in
simpler terms, he did not have significant deficits, and there
was no evidence that his condition had deteriorated since the
previous hearing. She suggested that any deficits in
understanding the defendant did have could be overcome through
19
communication with his attorney, repetition and further
explanation, and sufficient time for him to process and
understand questions he might be asked on cross-examination.
The judge determined that there had been no material change
since the previous hearing, and therefore that the defendant was
still competent to stand trial. He found that the defendant's
acknowledged mental impairments did not affect his competency,
and that any potential issues could be addressed through
preparation prior to trial.
iv. Midtrial competency hearing. On the third day of
trial, after the audio-video recording of the defendant's
interrogation was played for the jury, a court officer reported
to the judge that, during the lunch break, the defendant had
begun apparently interacting with an invisible dog. The judge
became concerned that the defendant might be decompensating, and
decided to bring in the court clinician to examine the
defendant, and to review whatever records the clinician felt
necessary, in order to determine whether the defendant remained
competent. On inquiry by the judge, the defendant's attorney
observed that the defendant seemed to "decompensate" more in
times of stress, and had been manifesting small signs of stress,
such as writing notes to himself and repeating words, while
sitting at counsel table during and after the playing of the
recording of the interview.
20
The defendant was examined briefly by Logan. She testified
that she thought the defendant wanted the judge and the
attorneys to believe that he was seeing a dog, but that she
thought he was not actually having a visual hallucination. She
concluded that the defendant was simply experiencing stress, and
provided some recommendations for measures that the defendant
might use to handle the trial environment. The judge concluded,
with an oral explanation on the record, that the Commonwealth
had fulfilled its burden of proving competency by a
preponderance of the evidence. In reaching that finding, he
noted that Logan was a clinical psychologist with forensic
experience who was aware of the defendant's history. The judge
additionally relied on his own observations of the defendant
over the course of the trial, as well as during the competency
hearing, and the reports and findings from the previous
competency hearings.
v. Whether the Commonwealth established the defendant's
competency to stand trial. The defendant appeals from the
finding of competency at the third hearing; he contends that the
judge abused his discretion by disregarding the experts'
consensus that the defendant was not at that time competent to
stand trial. The defendant additionally contends that the judge
inappropriately relied on evidence from lay witnesses, who could
testify to the defendant's behavior only at the time of the
21
incident and not at the time of the competency hearing, and that
the judge used an improper balancing test by considering the
public interest in the prosecution of those who commit crimes to
be of equal significance to the due process concern of
competency to stand trial.
"It has long been accepted that a person whose mental
condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense may not be
subjected to a trial." Commonwealth v. Crowley, 393 Mass. 393,
398 (1984), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975).
In the Commonwealth, G. L. c. 123, § 15, allows the examination
of a defendant whose competency is called into question.4 If a
trial judge doubts whether a defendant is competent to stand
trial, he or she must, on his or her own initiative, conduct a
4
General Laws c. 123, § 15 (a), provides, in relevant part:
"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. . . . 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."
22
full hearing.5 See Commonwealth v. Nickerson, 388 Mass. 246, 250
(1983); Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 272-273
(2012). At a competency hearing, the judge should determine
5
General Laws c. 123, § 15 (b), (c), provide, in relevant
part:
"(b) After the examination described in paragraph (a),
the court may order that the person be hospitalized at a
facility or, if such person is a male and appears to
require strict security, at the Bridgewater state hospital,
for a period not to exceed twenty days for observation and
further examination, if the court has reason to believe
that such observation and further examination are necessary
in order to determine whether mental illness or mental
defect have so affected a person that he is not competent
to stand trial or not criminally responsible for the crime
or crimes with which he has been charged. . . . If, before
the expiration of such twenty day period, an examining
qualified physician or an examining qualified psychologist
believes that observation for more than twenty days is
necessary, he shall so notify the court and shall request
in writing an extension of the twenty day period,
specifying the reason or reasons for which such further
observation is necessary. Upon the receipt of such
request, the court may extend said observation period, but
in no event shall the period exceed forty days from the
date of the initial court order of hospitalization;
provided, however, if the person requests continued care
and treatment during the pendency of the criminal
proceedings against him and the superintendent or medical
director agrees to provide such care and treatment, the
court may order the further hospitalization of such person
at the facility or the Bridgewater state hospital.
"(c) At the conclusion of the examination or the
observation period, the examining physician or psychologist
shall forthwith give to the court written signed reports of
their findings, including the clinical findings bearing on
the issue of competence to stand trial or criminal
responsibility. Such reports shall also contain an
opinion, supported by clinical findings, as to whether the
defendant is in need of treatment and care offered by the
[Department of Mental Health]."
23
whether the defendant has "sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding and . . . a rational as well as factual
understanding of the proceedings against him."6 Commonwealth v.
Vailes, 360 Mass. 522, 524 (1971), quoting Dusky v. United
States, 362 U.S. 402, 402 (1960). The Commonwealth has the
burden to prove competency by a preponderance of the evidence.
Crowley, 393 Mass. at 400-401. A judge's competency
determination is reviewed for abuse of discretion. See
Commonwealth v. Hung Tan Vo, 427 Mass. 464, 468-469 (1998).
In reaching such a determination, judges may consider their
own "observations of the defendant's demeanor and behavior
. . . , reports of psychiatric examinations of the defendant,
statements to the judge about the defendant's conduct and mental
condition, and the testimony of expert witnesses." Commonwealth
v. Hill, 375 Mass. 50, 54-55 (1978). Observations made closest
6
General Laws c. 123, § 15 (d), provides, in relevant part:
"If on the basis of such reports the court is
satisfied that the defendant is competent to stand trial,
the case shall continue according to the usual course of
criminal proceedings; otherwise the court shall hold a
hearing on whether the defendant is competent to stand
trial; provided that at any time before trial any party to
the case may request a hearing on whether the defendant is
competent to stand trial. A finding of incompetency shall
require a preponderance of the evidence. If the defendant
is found incompetent to stand trial, trial of the case
shall be stayed until such time as the defendant becomes
competent to stand trial, unless the case is dismissed."
24
to the time of trial are the most appropriate in determining
competency. See Commonwealth v. Companonio, 445 Mass. 39, 52
(2005) ("The time frame for determining a defendant's competency
to stand trial is 'the condition of the defendant at the time of
trial'" [citation omitted]).
While it may be useful for a judge to hear opinions from
medical experts, the determination is ultimately a legal, not a
medical, judgment. See Kansas v. Hendricks, 521 U.S. 346, 359
(1997) (noting that legal definition of "competency" need not
mirror its medical definition). "The law should not, and does
not, give the opinions of experts on either side of . . . [an]
issue the benefit of conclusiveness." Commonwealth v. DiMinico,
408 Mass. 230, 235 (1990), quoting Commonwealth v. Lamb, 372
Mass. 17, 24 (1977). Cf. Commonwealth v. Kappler, 416 Mass.
574, 579 (1993) (fact finders are not required to accept
"uncontroverted testimony of experts"); Commonwealth v. Shelley,
381 Mass. 340, 347 (1980) (fact finder is "not obliged to
believe the testimony of any of the expert witnesses").
The judge who conducted the third competency hearing had
the authority to exercise his discretion and choose not to
credit the experts' conclusions that the defendant was not
competent. He used the correct standard to determine
competency, appropriately placed the burden on the Commonwealth
to prove competency by a preponderance of the evidence, and
25
wrote a thorough memorandum explaining the reasons for his
conclusion. Moreover, after that hearing, at subsequent
hearings, two other judges found the defendant competent to
stand trial. Because competency may be fluid and should be
determined as close to trial as possible, it is most significant
that the defendant was found competent in a hearing during the
trial. In sum, we discern no error in the judge's determination
at the third competency hearing.
b. Mandatory imposition of life sentence without
possibility of parole on a developmentally disabled defendant.
The defendant argues also that the mandatory imposition of a
sentence of life imprisonment without the possibility of parole
on a defendant who is developmentally disabled constitutes cruel
and unusual punishment under the Eighth and Fourteenth
Amendments and cruel or unusual punishment under art. 26. The
defendant asks that we extend the United States Supreme Court's
holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002), that
imposition of the death penalty on a person with an intellectual
disability violates the United States Constitution,7 to
imposition of a mandatory sentence of life in prison without the
7
Atkins v. Virginia, 536 U.S. 304 (2002), uses the language
"mentally retarded." That term subsequently has been replaced
by the term "intellectually disabled." See Hall v. Florida, 134
S. Ct. 1986, 1990 (2014); Commonwealth v. St. Louis, 473 Mass.
350, 357 (2015); Pub. L. 111–256, 111th Cong., 124 Stat. 2643(2010) (Rosa's Law).
26
possibility of parole on defendants with developmental
disabilities.8
8
General Laws c. 123B, § 1, distinguishes between
intellectual and developmental disabilities as follows:
"[A] [p]erson with a developmental disability [is] (1)
an individual [five] years of age or older with a severe,
chronic disability that: (i) is attributable to a mental
or physical impairment resulting from intellectual
disability, autism, [S]mith-[M]agenis syndrome or Prader-
Willi syndrome; (ii) is manifested before the individual
attains age [twenty-two]; (iii) is likely to continue
indefinitely; (iv) results in substantial functional
limitations in [three] or more of the following areas of
major life activity: (1) self-care; (2) receptive and
expressive language; (3) learning; (4) mobility; (5) self-
direction; (6) capacity for independent living; and (7)
economic self-sufficiency; and (v) reflects the
individual's need for a combination and sequence of
special, interdisciplinary or generic services, supports or
other assistance that is of a lifelong or extended duration
and is individually planned and coordinated; or (2) an
individual under the age of [five] who has a substantial
developmental delay or specific congenital or acquired
condition with a high probability that the condition will
result in a developmental disability if services are not
provided. . . ."
"[A] [p]erson with an intellectual disability [is] a
person who has an intellectual disability, characterized by
significant limitations in both intellectual functioning
and adaptive behavior as expressed in conceptual, social
and practical adaptive skills and beginning before age 18,
and consistent with the most recent definition provided by
the American Association on Intellectual and Developmental
Disabilities; provided, that in applying this definition
the following shall be considered: (i) limitations in
present functioning within the context of community
environments typical of the individual's age, peers and
culture; (ii) cultural and linguistic diversity and
differences in communication, sensory, motor and behavioral
factors; (iii) limitations often coexist with strengths
within an individual; (iv) an important purpose of
describing limitations is to develop a profile of needed
27
In support of this argument, the defendant relies on cases
from the United States Supreme Court holding that imposition of
the death penalty on juveniles is unconstitutional, Roper v.
Simmons, 543 U.S. 551, 578 (2005); that a mandatory sentence of
life without the possibility of parole for nonhomicide offenses
committed by juveniles violates the Federal Constitution, Graham
v. Florida, 560 U.S. 48, 75 (2010); and that a mandatory
sentence of life in prison without the possibility of parole for
juveniles who commit murder is unconstitutional, Miller v.
Alabama, 567 U.S. 460, 470 (2012). We have extended the Court's
holding in Miller, supra, in deciding that even the
discretionary imposition of a sentence of life without the
possibility of parole on juveniles is in violation of art. 26.
See Diatchenko v. District Attorney for the Suffolk Dist., 466
Mass. 655, 674 (2013), S.C., 471 Mass. 12 (2015).
The Commonwealth contends that the defendant's argument
would require significant extrapolation from existing precedent,
given that the defendant is not a juvenile and is not subject to
the death penalty; there is no precedent in this court or the
United States Supreme Court concerning prison sentences for
developmentally disabled individuals. Furthermore, the
supports; and (v) with appropriate personalized supports
over a sustained period, the life functioning of a person
with an intellectual disability will generally
improve . . . ."
28
Commonwealth argues, adults with intellectual or developmental
disabilities may not have the same prospects for rehabilitation
as do juveniles, whose brains have not yet fully matured. The
Commonwealth maintains that much of the reasoning underlying the
United States Supreme Court's and this court's jurisprudence on
sentences for juveniles does not apply in this case because,
unlike juveniles, who act impulsively and are unduly influenced
by others due to their lack of maturity, the defendant has an
immutable condition, did not act impulsively, and was not unduly
influenced by others.
The Eighth Amendment and art. 26 "draw [their] meaning from
the evolving standards of decency that mark the progress of a
maturing society." Atkins, 536 U.S. at 311-312, quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958). See Diatchenko, supra at 669;
Libby v. Commissioner of Correction, 385 Mass. 421, 435 (1982)
("Article 26, like the Eighth Amendment, bars punishments which
are 'unacceptable under contemporary moral standards'" [citation
omitted]). In deciding whether a punishment is cruel and
unusual, courts look to "'objective indicia of society's
standards' . . . to determine whether there is a national
consensus against the sentencing practice at issue." Graham,
560 U.S. at 61, quoting Roper v. Simmons, 543 U.S. at 563. See
Good v. Commissioner of Correction, 417 Mass. 329, 335 (1994)
("In divining contemporary standards of decency, we may look to
29
State statutes and regulations, which reflect the public
attitude as to what those standards are"). Courts also
"determine in the exercise of [their] own independent judgment
whether the punishment in question violates" contemporary moral
standards to the extent that it is a constitutional violation.
See Graham, supra.
"[T]he clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country's
legislatures" (quotations and citation omitted). Atkins, 536
U.S. at 312. Courts that have addressed this issue to date have
declined to extend Atkins, supra, and Miller, supra, to disallow
mandatory sentences of life without parole for people with
intellectual or developmental disabilities, largely in
unpublished or unreported opinions. See State v. Little, 200
So. 3d 400, 405 (La. Ct. App. 2016) (rejecting downward
departure from mandatory sentence of life without parole for
defendant with developmental disability). See also Pifer, Is
Life the Same as Death?: Implications of Graham v. Florida,
Roper v. Simmons, and Atkins v. Virginia on Life Without Parole
Sentences for Juvenile and Mentally Retarded Offenders, 43 Loy.
L.A. L. Rev. 1495 (2010).
This court has "the inherent authority to interpret [S]tate
constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United
30
States Constitution" (quotations and citation omitted).
Diatchenko, 466 Mass. at 668. We did so in Diatchenko, supra at
669, where we held that "the imposition of a sentence of life in
prison without the possibility of parole for the commission of
murder in the first degree by a juvenile under the age of
eighteen is disproportionate not with respect to the offense
itself, but with regard to the particular offender." In that
case, we considered scientific evidence on adolescent brain
development and how it may affect a juvenile's personality and
behavior. Id. at 669-671.
Similarly, in Atkins, 536 U.S. at 318, the United States
Supreme Court determined that intellectually disabled
individuals "have diminished capacities to understand and
process information, to communicate, to abstract from mistakes
and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others,"
leading them to be less culpable than other offenders. The
Court therefore focused on two reasons categorically to exclude
individuals with intellectual disabilities from execution. Id.
at 318. First, neither justification for the death penalty,
retribution or deterrence, applies to intellectually disabled
defendants. Id. at 318-319. Because intellectually disabled
individuals are less culpable, their actions do not merit that
level of retribution, and their impairments make it less likely
31
that they can be deterred by the possibility of the death
penalty. Id. at 319-320. Second, intellectually disabled
individuals may receive the death penalty more frequently than
they should, based on the facts of their cases, because of the
increased possibility of false confessions and the lesser
ability of intellectually disabled defendants to make a
persuasive showing of mitigation. Id. at 320-321. These
concerns are less extreme, however, when an individual is facing
a prison sentence, even when it is life without parole, than
when an individual faces the death penalty.
At this time, we decline to extend Atkins, supra, and
Miller, supra, either to eliminate sentences of life in prison
without the possibility of parole for people with developmental
disabilities or to require that such sentences be discretionary
rather than mandatory. Whether it is cruel and unusual under
the Eighth and Fourteenth Amendments or cruel or unusual under
art. 26 to impose a mandatory sentence of life without parole on
a person with an intellectual disability is a difficult question
that is not before us here, where the defendant has been
diagnosed with a developmental disability.
c. Relief pursuant to G. L. c. 278, § 33E. The defendant
asks that we exercise our extraordinary power pursuant to G. L.
c. 278, § 33E, to order a new trial or reduce the verdict to
murder in the second degree. After carefully reviewing the
32
record pursuant to our duty under G. L. c. 278, § 33E, we
decline to set aside the verdict or to reduce the degree of
guilt.
Judgment affirmed.