Com. v. Simpson

Page 1131

704 N.E.2d 1131

428 Mass. 646

COMMONWEALTH v. Michael J. SIMPSON.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 5, 1998.

Decided Jan. 12, 1999.

Geraldine C. Griffin, Assistant District Attorney, for the Commonwealth.

Richard J. Shea, Boston, for the defendant.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, and IRELAND, JJ.

WILKINS, C.J.

This appeal, here for further appellate review at the request of the Commonwealth, presents issues arising out of the Appeals Court's concern that the trial judge did not conduct a hearing on the defendant's competence to stand trial. The Appeals Court, which pursued the issue on its own motion, reversed the defendant's convictions because it concluded that the trial judge should have conducted a competency hearing "in light of [the defendant's] bizarre performance" while representing himself at trial. Commonwealth v. Simpson, 44 Mass.App.Ct. 154, 163, 689 N.E.2d 824 (1998). The Appeals Court then remanded the case for an evidentiary hearing on the defendant's competence to stand trial and to conduct his own defense. Id. at 165-166, 689 N.E.2d 824. Only if he were found competent would there be a new trial.

The Appeals Court correctly summarized the conduct in February, 1993, that led to the defendant's indictments, as follows:

"While the victim slept, Simpson struck her in the head with a hammer. Fortunately awakened rather than rendered unconscious, the victim jumped from her bed and saw Simpson with the hammer up, ready to strike again. Simpson switched weapons to a buck knife he was in the habit of carrying. With that he stabbed the victim several times in the neck and finished his work by slashing her left cheek from her ear almost to her mouth."

Id. at 155, 689 N.E.2d 824.

The defendant had lived with the victim in her home for some months.

The defendant was indicted for, and in June, 1994, found guilty of, (1) assault with a hammer with intent to murder, (2) assault with a knife with intent to murder, (3) assault and battery with a hammer, (4) assault and battery with a knife, and (5) mayhem. Only one appellate issue of substance, apart from the competence issue, is raised, a challenge to the imposition of an allegedly duplicative sentence on one of the five indictments. We deal with that issue at the end of this opinion. Our principal attention is given to the competency question.

A dissenting justice of the Appeals Court concluded that the question of the defendant's competence to stand trial should be considered on a motion for new trial after affirmation of the convictions. Id. at 166-167, 689 N.E.2d 824 (Spina, J., dissenting). He believed that the court should not act on the competency issue because the parties had not argued the point and "[n]either the experienced trial judge, stand-by defense counsel, nor the prosecutor ever expressed any concern about the defendant's competence during trial." Id. We turn first to the Commonwealth's argument that the Appeals Court exceeded its authority in deciding the unargued competency question.

1. The Commonwealth asserts that the Appeals Court lacked jurisdiction to consider the question of the defendant's competence to stand trial. It is true that the Appeals Court reversed the judgments and set aside the verdicts on a ground that was neither raised in the trial court nor argued in the briefs before the Appeals Court. It is clear, however, that the defendant's appellate counsel, who was not trial counsel, was concerned about the defendant's mental competence at trial. The defendant had instructed his appellate counsel not to argue on appeal that the trial judge erred in ruling that he was competent to stand trial, to waive counsel, or to defend himself. No doubt prompted by principles now expressed in S.J.C. Rule 3:07, Mass. R. Prof. C. 1.14, 426 Mass. 1361 (1998), concerning a client under a disability, counsel petitioned a single justice of the Appeals Court to appoint a guardian ad litem for the defendant who could authorize counsel to raise the competency issue on appeal. Counsel was unsuccessful, however, in persuading a single justice of the Appeals Court that the court had authority to appoint a guardian ad litem for the defendant. Defense counsel has appealed from that decision.

The Appeals Court, by acting on its own to consider the competency issue, made moot defense counsel's appeal from the single justice's order denying his motion for the appointment of a guardian ad litem. Although the Appeals Court had no explicit, and perhaps even no inherent, authority to appoint a guardian ad litem for the defendant, the single justice could have granted defense counsel leave to argue the competency question on appeal. Indeed, because counsel had the right, if not the duty, to advise the relevant courts of his or her concern about a client's competency to stand trial, no leave to do so was necessary. ¹

The Appeals Court has authority to consider an issue apparent on the record of a criminal case that is not properly preserved for appellate review and is not argued to it in any party's appellate brief. At the least, it may consider whether the record shows a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). If the defendant was incompetent at the time of his trial, it was a miscarriage of justice to convict him, even if there was overwhelming evidence that he had committed the crimes charged. See Commonwealth v. Hill, 375 Mass. 50, 53, 375 N.E.2d 1168 (1978). It is axiomatic that the trial, conviction, or sentencing of a legally incompetent person violates that person's constitutional right to due process. Id. at 51-52, 375 N.E.2d 1168. See Drope v. Missouri, 420 U.S. 162, 171-172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Commonwealth v. Prater, 420 Mass. 569, 573, 651 N.E.2d 833 (1995); Commonwealth v. Vailes, 360 Mass. 522, 524, 275 N.E.2d 893 (1971). The appellate courts of the Commonwealth, therefore, must have and do have jurisdiction to consider, on their own motion, whether such a violation of constitutional rights has occurred. It was certainly within the authority of the Appeals Court to consider the possibility of the defendant's incompetence. By our allowance of the Commonwealth's application for further appellate review, we also may appropriately consider the issue. See Commonwealth v. Wotan, 422 Mass. 740, 741, 665 N.E.2d 976 (1996), and cases cited. The difficult question that we ultimately reach is what course an appellate court should follow when the issue of a defendant's competence to stand trial surfaces for the first time on appeal.

2. We first set forth the factual ground of the competency question apparent in the record. ² On defense counsel's request, slightly more than two months after the defendant had been indicted, a Superior Court judge ordered that the defendant be evaluated in the court clinic as to his competence to stand trial. A doctor evaluated the defendant and reported that she had concerns about his rational understanding of the proceedings against him and about his present ability to represent himself. She recommended further evaluation. The judge ordered the defendant's evaluation at Bridgewater State Hospital.

As a result, two evaluation reports were submitted, neither of which reached a conclusion concerning the defendant's competence because the defendant declined to participate sufficiently in the attempts at evaluation. Information in the reports certainly indicated that there might be a competency problem. In the meantime, a second judge had allowed the defendant's first counsel to withdraw, ³ and new counsel was appointed to serve, this time, as standby counsel.

On October 12, 1993, new defense counsel told a third Superior Court judge that the defendant was competent and that he had "very little, if any, doubt that [the defendant] knows what is going on." Defense counsel said that the defendant would not cooperate in any further psychological evaluation. The judge set a trial date and indicated that there would be an evaluation of the defendant on the morning of trial.

On December 7, 1993, a fourth Superior Court judge set a new trial date. The prosecutor indicated that the Commonwealth might request that the defendant be seen on that date to "insure that he is still capable and in a position to represent himself." Standby counsel reiterated his opinion that the defendant was competent to understand and to participate in the trial process and said that the defense would not assert a lack of criminal responsibility. The defendant stated that he had a right to represent himself. The following colloquy does not suggest any lack of competence:

THE JUDGE: "I do want to alert you to the difficulties that are involved in representing yourself. You understand that it is difficult to represent yourself?"

THE DEFENDANT: "Your Honor, I understand--not being a student of jurisprudence I understand the difficulties of one representing oneself in a criminal matter of such gravity as this but I feel that no one is more acquainted with the details surrounding this case than myself, although I will need to rely heavily on the assistance of a lawyer and I do feel, thus far, very confident in the advice of [standby counsel]."

The case came before the trial judge on May 31, 1994. The judge and the defendant discussed documents that the defendant had not obtained. The defendant said that he did not know why he had been sent to Bridgewater. The defendant's comments on this subject and on other pretrial matters raised no doubt as to whether he was competent to stand trial or to handle his own defense.

The judge then conducted a colloquy concerning the defendant's competence to represent himself. The Appeals Court summarized it accurately. Commonwealth v. Simpson, 44 Mass.App.Ct. 154,...