Commonwealth v. Shin

86 Mass.App.Ct. 381

16 N.E.3d 1122

COMMONWEALTH

v.Jacob E. SHIN.

No. 13–P–818.

Appeals Court of Massachusetts, Suffolk.

Argued April 14, 2014.

Decided Sept. 25, 2014.

Katherine Godin for the defendant.

Zachary M. Hillman, Assistant District Attorney (Neil J. Flynn, Jr., Assistant District Attorney, with him) for the Commonwealth.

Present: GREEN, HANLON, & HINES, JJ.¹

Opinion

HANLON, J.

After a jury-waived trial, the defendant was convicted of indecent assault and battery on a person fourteen years of age or older.² He argues that his motion for a required finding of not guilty should have been allowed because there was insufficient evidence to prove that he was criminally responsible at the time of the crime. In addition, he argues that the judge employed the wrong analysis in determining that he was criminally responsible. We agree that the analysis was flawed and therefore reverse.

Background. At approximately five o'clock in the evening on January 20, 2011, the victim boarded a Massachusetts Bay Transportation Authority (MBTA) Green Line subway train at Park Street station, heading for Cleveland Circle. It was rush hour and the train was crowded; she stood with her back against the wall

by the “accordion bend” in the middle of the train in an attempt to allow space for other passengers.

At the Copley stop, many people entered the train and it became very crowded; the defendant boarded with the other passengers and he went to stand “very close” to the victim, so close that he made her uncomfortable, “and he was touching [her] arm on [her] left side.” After the train left Copley and before the next stop (Hynes Convention Center), the defendant lifted his hand and touched the victim between her legs on her upper thigh, within “two inches” of her genital area. She testified that “[i]t was very high on [her] leg.” As soon as the defendant put his hand on the victim's leg, she lifted up her left arm and, pushing him in the center of his chest, “said watch your hands. [She] pushed him as far as [she] could push him away from [her].”

The victim got off the train at the Hynes Convention Center stop because she “wanted to get out of the enclosed train car”; the defendant also got off the train at that stop, and the victim watched from the platform as he passed through the fare gate and climbed the stairs toward the station exit. She then felt safe enough to get back on the next train and continue to her intended stop.

MBTA transit officers obtained videotape footage from the Hynes Convention Center station; the victim identified the defendant on the tape and the officers then obtained “fare gate information” for the time shown on the videotape. They determined the defendant's name and home address from his “transportation access pass” or “Charlie” card.³

The following day, three transit officers went to the defendant's home and spoke with him. At their request, he provided his Charlie card and, “immediately” after checking the numbers on the card, the officers gave the defendant a Miranda warning. The defendant then asked for privacy because “[h]e did not want the other people in the home to know what [they] were talking about”; as a result, the defendant and all three officers moved into a room adjacent to the entrance door to continue their conversation. The defendant later agreed to accompany the officers back to the MBTA transit police headquarters; while traveling in the officers' unmarked car, the defendant stated that “he did have a problem” relating to the incident that they were investigating, and that he had medication but was not presently taking it.

MBTA transit police Lieutenant Mark Gillespie testified that, at some point during his conversation with the defendant, the defendant “mentioned the word lawyer” and the officers did not ask any more questions about the incident. Gillespie also testified that the defendant had “two distinct changes in his behavior” while the officers were at the defendant's home and then while being transported to headquarters.⁴

At the jury-waived trial, the defendant's primary defense was lack of criminal responsibility, specifically that he was unable to “conform [his] conduct to the requirements of the law.” Commonwealth v. Berry, 457 Mass. 602, 612, 931 N.E.2d 972 (2010). His sole witness was Dr. Susan Lewis, a forensic psychologist at the Worcester Division of the District Court Department.⁵ Dr. Lewis had seen the defendant first in 2005 for an “aid in sentencing examination” at the Erich Lindemann Mental Health Center (Lindemann Center). See G.L. c. 123, § 15(e ). At that time, the defendant had been charged with indecent assault and battery on a person fourteen years old or older; “he was experiencing auditory hallucinations,” along with “grandiosity in terms of the stories he was telling at that time.”⁶ Dr. Lewis diagnosed him in 2005 with schizophrenia. In connection with the proceedings in this case, she also reviewed diagnoses from other doctors who had seen the defendant between 2005 and her evaluation in 2011, and testified that “there's no dispute that he's been suffering from schizophrenia.”⁷

The defendant has a significant history of hospitalization for mental illness. Specifically, between 2005 and 2009, he was hospitalized

by court order on six different occasions.⁸ In May, 2007, a guardian was appointed for the defendant with “Rogers authority” to consent to medication. See Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983) (Rogers ).

Apparently, there are no records available for the time period between November, 2009, when the defendant was released from the Lindemann Center—with an ankle bracelet that he immediately removed—and December, 2010, when the defendant met with a psychiatrist, presenting “with hypomanic symptoms.” At that time, the defendant made it clear that “he was not going to take his medication.” “He had refused it. He was experiencing manic symptoms, very agitated, irritable.” In addition, apparently, the defendant was experiencing some difficulty obtaining the medication. Dr. Lewis's report states that the defendant was “insisting his Mass Health card was being declined. Problems with his card were remedied and the pharmacy was notified” (emphasis supplied).

In summary, Dr. Lewis opined that the defendant “has a confirmed severe and persistent mental illness that has been ongoing

for the previous [seven] years.... [O]ne consistent finding is that his ability to perceive reality is significantly impaired. When he willingly takes his medication his symptoms are muted although never in complete remission.” In addition, the defendant

“suffers from the paraphilia called Frotteurism. Frotteurism refers to the paraphilic interest in rubbing against a non-consenting person for sexual gratification. It may involve touching any part of the body including the genital area.... With the overlay of non-compliance with taking his medication and the subsequent resulting psychotic symptoms it is difficult to clearly discern the relative weight of each state. By [the defendant's] present report and previous findings of psychosis from earlier evaluations, it seems likely that [the defendant] was experiencing active symptoms of mental illness at the time of the alleged events. As previously noted, at these times, [the defendant] misreads social cues and misinterprets the cues of his victims as beckoning and provocative and that she may welcome his advances.... It is more likely than not that during the index event [the defendant's] ability to conform his behaviors to the requirements of the law was significantly impaired by this mental state. In addition, when [the defendant] refuses to take his medication his psychotic symptoms become exacerbated and prominent affecting his impulse control.... His mental stability at this time is distorted by psychosis and his sexualized state, compromising his ability to appreciate the wrongfulness of his conduct.”⁹

At trial, Dr. Lewis testified that, at the time at issue, “[the defendant] was not taking his medication ..., was experiencing an increase in some of the symptoms that he's experienced over the seven years, that he misinterprets his social cues in the environment thinking an individual is communicating something to him when in actuality they are not, he is agitated, he's irritable, he is likely experiencing ideas of reference which is that an individual engages in a particular act that has nothing whatsoever to do with him and he interprets it as a message to him in some way, that given those circumstances, that he's unable to appreciate the wrongfulness of his conduct or conform his behaviors to the requirements of the law.”

After hearing all the evidence, the judge requested further arguments and briefing from both counsel on the issue whether the defendant knew that his failure to take his medication would cause him to act in a manner that was against the law and, if so, whether that would permit a finding that he was criminally responsible. After reviewing those arguments, the judge found that the defendant was criminally responsible, stating that the defendant “was aware that if he failed to take his medication, it would result in this kind of behavior once again.... He has had enough contact with the court system and enough treatment by this doctor who testified and other doctors that make it very clear to him that he needs to take his medication or he would be right back where he started.”¹⁰ The judge alluded to Commonwealth v. McGrath, 358 Mass. 314, 264 N.E.2d 667 (1970), and Commonwealth v. Berry, 457 Mass. 602, 931 N.E.2d 972, stating that the principles announced in those cases were applicable here. Specifically, the judge found that the defendant “knew that if he didn't take his medication” he was likely to commit further crimes “and he went ahead anyway and stopped taking his medication.” On that basis, the judge found the defendant criminally responsible.

Discussi...