HANLON, J.
Along with her husband, the defendant was convicted of sexual abuse of her four minor sons and related drug offenses after a joint jury-waived trial in 1997.
Facts. The facts found by the motion judge are substantially supported by the information and materials that were before him at the hearing; we supplement with uncontested material facts from the record in order to provide context. See, e.g., Commonwealth v. Robinson, 449 Mass. 1, 5 (2007). The motion judge found that the defendant "experienced physical and emotional abuse from [her husband, Corby Adkinson] throughout their lives together in Lowell. Corby ... would beat or threaten to beat [the defendant] on a periodic basis causing her black eyes, bloody lips and other injuries. After nearly every one of his beatings, he would apologize and promise that he would never do that again. He would tell her how much he loved her, only to repeat later the same cycle of violence. Corby . . . was a `control freak,' who wanted to know where [the defendant] was and who she was with at all times."
The charged crimes involving the defendant's sons, aged
On November 23, 1995, Thanksgiving Day, one of the boys telephoned 911 and asked for help. The police responded; the children and the defendant were taken to Lowell General Hospital, where all four children tested positive for cocaine. The Department of Social Services
Thereafter, between Thanksgiving and December 23, 1995, according to the defendant's affidavit and testimony at the motion hearing, Corby repeatedly instructed her on what she was to say to DSS with respect to the pending care and protection proceeding; when he thought that she disobeyed him, he beat her. On December 22, 1995, when Corby was rehearsing with the defendant what to say, he put a knife to her throat and threatened to kill her if she told anyone what had happened to their children. Afterwards, the defendant broke free and tried to escape, pushing a television out the window and then jumping through the window in a nightgown and bare feet. Eventually the police were called to the scene and the defendant was transported to a hospital. She told the hospital staff that Corby had put a knife to her throat, that he was molesting their children, and that he was drugging "us." Several hours later, on December 23, 1995, she was transferred to the Solomon Mental Health Center (Solomon) for a psychiatric evaluation.
Two days later, on Christmas Day, Corby's lawyer, Edward J. Moloney, Sr., went to Solomon and spoke to the defendant. He
The defendant and her husband were arrested by the Lowell police and charged with the offenses against their children on January 17, 1996. The defendant was interviewed separately; after waiving her Miranda rights, she signed a detailed, four-page, typed statement disclosing sexual and drug abuse in the Adkinson family with explicit examples. She also described Corby's extensive physical abuse of all the children and of her.
The next day, the defendant was transported to Lowell Division of the District Court Department, and Corby was among the other prisoners in the transport wagon. On the ride, he angrily warned her to "get [her] f-ing act together" and "get [her] story straight."
The following day, January 19, 1996, Parigian met with his client at MCI Framingham, and spoke to her in detail. According to Parigian's affidavit, the defendant described "a long history of physical and emotional abuse which she had suffered from her husband." She told Parigian that "her husband limited the people she was allowed to speak with and did not allow her to have friends of her own." She also said "she felt threatened by her husband."
The motion judge credited Parigian's statement in his affidavit that, based on these discussions with his client and his review of her four-page statement given to the Lowell police, he "began to explore a possible defense to the charges based on duress supported by Battered Women's Syndrome — namely
Although the motion judge did not make any specific findings regarding what occurred between January 18, 1996, the defendant's arraignment date, and February 22, 1996, when Parigian was replaced with another attorney, the following additional facts were adduced at the hearing and were not disputed. At some point on the District Court arraignment date, the defendant and Corby were lodged in adjacent holding cells. Parigian met with the defendant in the holding cell and began to discuss with her his recommendation that the cases be severed. Corby told Parigian that the cases would not be severed, and later that day, while they were still in the court house, he told the defendant to get a new lawyer.
Three days later, on January 21, 1996, Corby's mother, Margaret Adkinson (Margaret), and Corby's attorney, Moloney, visited the defendant at MCI Framingham.
On January 30, 1996, Moloney wrote a letter to the defendant stating that he could not represent both her and Corby "[b]ecause of a possible conflict of interest"; he directed her to contact her attorney, Parigian, if she had any further questions.
About two weeks later, on February 13, 1996, Parigian again met with the defendant and discussed her desire to present a "unified defense" with her husband. According to the motion judge's findings, the unified defense was that the "sexual allegations were the result of suggestive interviewing on the part of DSS, and/or that [the defendant's] first husband, Kenny Boc[k], was responsible." See Commonwealth v. Adkinson, 442 Mass. at 412-413 (defendant and codefendant pursued a "unified defense"). The defendant even provided Parigian with a copy of the decision in Perkins v. Wagner, 513 F.Supp. 904 (E.D. Pa. 1981), a case involving a request for visitation rights so that a husband and wife could prepare a coordinated defense. Parigian advised the defendant against this approach and explained that the Bruton case
Thereafter, on February 22, 2006, Parigian, unaware that Corby had arranged a change in counsel, was present at the defendant's Superior Court arraignment, expecting to represent her. Bielitz was also present. According to the defendant, while she was waiting in the courtroom, Corby told her that he had hired Bielitz to represent her and that she should fire Parigian. Thereafter, the defendant was arraigned, and Bielitz entered an appearance on her behalf. The same day Corby wrote a letter to Bielitz stating, "We will definitely want to be tried together and we want court ordered visits as soon as possible which will include jail visits and holding cell visits before and after court. [The defendant], me, you, and Mr. Murphy must also get together at visit[s] to discuss this." This letter was admitted in evidence at the hearing.
After the arraignment, Bielitz had "at best three or four meetings" alone with the defendant. At Corby's request, Bielitz filed motions with the trial court renewing the request to permit written communications between the defendant and Corby and to arrange for her to be brought to the Cambridge jail for conferences with Corby, Bielitz, and Murphy to prepare a "unified defense." The requests were allowed.
As the motion judge found, however, Bielitz was also of the belief that the two cases should be severed and tried separately, rather than presenting a joint trial with a unified defense.
For example, after one meeting in which Corby became particularly upset and almost violent, he wrote to Bielitz immediately afterwards, questioning his advice.
Within the next few days, Corby and the defendant instituted a rule that no lawyer in the case was to meet with his client separately and that all meetings required the attendance of Corby and the defendant and the two lawyers. See Commonwealth v. Adkinson, 442 Mass. at 412 (both counsel had been instructed by their clients that no client meeting was to take place unless
Shortly before trial began, at the attorneys' request, Corby and the defendant each signed a statement to the effect that they had been advised on numerous occasions by their respective attorneys that "we should not be tried together. We have both decided we wish to present a unified defense and be tried together." Bielitz testified that during the trial Corby was in "[t]otal control," and the defendant just "sat there."
During the trial itself, on the ninth day, the judge apparently became concerned about whether the defense had considered severance.
Expert testimony. In support of her motion for a new trial, the defendant presented the testimony of three experts, psychologists Robert H. Joss and Carol Ball and a licensed clinical social worker, Mary Jo Haggerty. Haggerty and Dr. Joss had both met with the defendant before the trial on the underlying criminal case, and Dr. Ball conducted an evaluation two years later, in 1998, in preparation for providing psychiatric evidence in the children's care and protection proceeding.
Dr. Joss testified that he was a "designated forensic psychologist. . . and a forensic mental health supervisor to the Department of Mental Health."
The motion judge, with little explanation, found that Dr. Joss's testimony was not credible and not reliable under the Daubert-Lanigan standard,
Mary Jo Haggerty testified that she was a licensed social worker with a master's degree in clinical social work. She saw the defendant for counselling briefly in the fall of 1995 and also saw both Adkinsons for three sessions of couple's counselling. The individual counselling was terminated after about a month when Corby called and told Haggerty that "[the defendant] no longer needed to be in therapy."
Dr. Carol Ball testified that she has a Ph.D in psychology.
The motion judge found that neither Ball nor Haggerty addressed the issue of competency. Although each expert testified to significant issues concerning the defendant's competency, the judge did not consider any of the testimony in ruling on the motion, concluding, instead, that "[n]o reliable or credible expert testimony has been offered to support her claimed incompetency."
At the conclusion of the hearing, the judge denied the motion for a new trial in a written memorandum. He ruled that a competency hearing was not required at the time of trial because competency had never been raised as an issue before or during the trial and because the defendant demonstrated an understanding of the proceedings and an ability to consult with counsel, as evidenced by her jury waiver. The judge also rejected the defendant's substantive claim that she was not competent to stand trial or to be sentenced.
The judge based his ruling that a competency hearing was not required on two grounds. First, he noted that the issue of the defendant's competency was "never ... raised by anyone" throughout the trial and pretrial proceedings and that there had been no suggestion during the three-week trial that the defendant was incompetent. Second, he reviewed the jury waiver colloquy conducted by the trial judge with the defendant and concluded that the defendant answered all of the questions in an appropriate and responsive manner. The judge reasoned that, because "[t]he standard that applies in deciding whether a defendant is competent to stand trial is the same as that which applies
Further, according to the motion judge, the defendant's predominant concern was to regain the custody of her children. The judge found that "[i]t was all or nothing, namely, she had to go to trial and hope that she received not guilty verdicts." He continued, "Just because [her trial strategy was unsuccessful and] she lost with the fact finder does not mean that she was incompetent."
Discussion. On appeal, the defendant argues that her rights were violated by reason of a failure to conduct a timely competency hearing before or during the trial.
"It has long been the law of this Commonwealth that the `trial, conviction or sentencing of a person charged with a criminal offence while he is legally incompetent violates his constitutional rights of due process' ..., whether under the Fourteenth Amendment to the Constitution of the United States or under art. 12 of the Declaration of Rights of the Constitution of this Commonwealth." Commonwealth v. Hill, 375 Mass. 50, 51 52 (1978), quoting from Commonwealth v. Vailes, 360 Mass. 522, 524 (1971). "The test for competenc[y to stand trial] is
We review the judge's decision "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In the case before us, the motion judge was not the trial judge. Therefore, "deference is owed only to the motion judge's assessment of the credibility of witnesses [at the hearing on the new trial motion]; [the appellate] court is in `as good a position as the motion judge to assess the trial record.'" Commonwealth v. Phinney, 446 Mass. 155, 158 (2006), quoting from Commonwealth v. LeFave, 430 Mass. 169, 176 (1999). See Commonwealth v. Grace, supra. In addition, "[w]hen a new trial claim is constitutionally based, as in the instant case[], `this court will exercise its own judgment on the ultimate factual as well as legal conclusions.'" Commonwealth v. Healy, 438 Mass. 672,
The judge's decision that a competency hearing was not required in this case turns exclusively on the defendant's behavior during trial. While a defendant's demeanor at trial and in response to questioning by the judge "might be relevant to the ultimate decision as to [her competency]," decisional law has made clear that "it cannot be relied upon to dispense with a hearing on that very issue." Pate v. Robinson, 383 U.S. at 386. See Commonwealth v. Hill, 375 Mass. at 58 (while "[w]e recognize that the defendant's demeanor at trial and response to questioning by the judge were apparently not unusual ... [and are] certainly relevant to a decision on the merits of the competency issue, [this] cannot be treated as dispositive of the question whether a hearing should be held on that issue").
Similarly, the judge's reliance on the fact that "competency to stand trial" was not an issue in the record of the trial or pretrial proceedings is misplaced, at least on the facts of this case. "Inquiry into the defendant's claim of incompetenc[y] should not be easily foreclosed on the ground of waiver, since `it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.' Pate v. Robinson, 383 U.S. [at 384]. In his dissenting opinion in the same case, Mr. Justice Harlan said, at 388, that if there were error at the trial level on the question of the defendant's competenc[y] to stand trial, `such an error is not "waived" by failure to raise it.... Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers.'" Commonwealth v. Hill, 375 Mass. at 53-54.
Equally significant is the fact that the judge's findings relate solely to that prong of the competency test that the defendant concedes has been established, namely, that she had a rational and factual understanding of the proceedings against her. Our review cannot be so constrained; the other prong of the test requires that we determine whether the defendant could rationally consult with her attorney and assist in her defense.
The proper inquiry is whether, after a review of the relevant information and evidence available to the judge or to counsel both before and during the trial, there exists a "substantial question of possible doubt" as to whether the defendant was competent to stand trial. Commonwealth v. Robbins, 431 Mass. 442, 447 (2000). "The inquiry `is not why counsel failed to request a competency hearing or why the court failed to hold one on its own initiative, but whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to [the defendant's] competency to stand trial.'" Commonwealth v. Companonio, 445 Mass. 39, 48 (2005), quoting from Commonwealth v. Hill, 375 Mass. at 54. See Commonwealth v. A.B., 72 Mass. App. Ct. at 14-16.
Substantial evidence was adduced in this case that the defendant was incapable of rationally assisting in her defense because of a focused and continuing pattern of abuse against her and domination over her by her husband and codefendant. The motion judge recognized what was obvious and undisputed in the record, that the defendant experienced severe physical and emotional abuse from Corby throughout their lives together. The judge also accepted, at least implicitly, that there was
In addition, truly startling evidence was presented at the hearing, and apparently credited by the judge, revealing the remarkable amount of control that Corby exercised over the defendant throughout the proceedings. Bielitz, in particular, testified about this in chilling detail.
We have considered and rejected another aspect of the motion judge's decision. He placed, as does the Commonwealth, significant emphasis on the suggestion that the defendant's goal of reunification with her children was the basis for her pursuit of the ill-advised unified defense, because a finding of not guilty was the only way she would ever regain custody of her children. In so doing the judge observed, accurately, that a defendant has a right to reject a defense suggested by her attorney and that a foolish or unsuccessful choice does not render her incompetent.
We note at the outset that the record support is thin for the
Even assuming, however, that reunification with her children was an important goal underlying the defendant's decisions, our inquiry remains whether the evidence raises a substantial doubt as to the defendant's ability to consult rationally with her attorney and assist her defense in achieving whatever goal she chose. The issue in a competency inquiry is not whether a defendant has made poor trial choices. See Commonwealth v. Robidoux, 450 Mass. 144, 156 (2007), quoting from Commonwealth v. Martin, 425 Mass. 718, 721 (1997) (defendant has a constitutional right to make decisions relating to his defense because "respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and he makes the choice `with eyes open'"). Rather, the question is whether the defendant, in making those choices, has the ability to consult rationally with counsel and assist in that defense.
We also note that, while a defendant is clearly entitled to pursue an ill-advised defense, the choice of a unified defense in this case does provide at least some additional evidence of the defendant's incompetency. No one associated with this case
On the facts of this case, where evidence of serious, violent, long-term physical and emotional abuse is undisputed; evidence that the defendant suffered from battered woman syndrome is substantial; and evidence of the abuser's ongoing control, to the defendant's detriment, is compelling, there is a substantial question regarding the competency of this defendant to consult rationally with her lawyer in order to assist in her defense, and therefore her competency to stand trial. Central to our analysis is the overwhelming evidence of Corby's ongoing control throughout the proceedings, including in particular the fact that he was able to forestall the defendant's private consultation with her attorney. See McMaugh v. State, 612 A.2d at 733 (defendant, a severely battered woman, found incompetent to stand trial where her husband and codefendant compelled her to accept his version of events, was present during every meeting with attorneys, and demanded that they be tried together, and defendant passively agreed), cited with approval in Commonwealth v. Conaghan, 433 Mass. at 111. It makes no difference whether trial counsel should have presented evidence of
The judgments are vacated, the findings are set aside, and the order denying the motion for a new trial is reversed.
So ordered.
The defendant first met Corby in California in 1982, when she was about twenty years old. At that time, she was divorced from her first husband, Kenny Bock, and living with their young daughter, Nicole. Early in the defendant's relationship with Corby, she tried to end it, telling him to leave her alone. In response, Corby warned her that she would pay for rejecting him. Shortly afterwards, the defendant's house caught fire; she was unable to rescue her three year old daughter, who died in the flames. Authorities believed the fire had been intentionally set, but never charged anyone with the crime. The defendant suspected that Corby might have set the fire because she had rejected him.
Nevertheless, after the fire, the defendant, who was severely depressed, began to rely on Corby for support; eventually, they began living together. They moved to Florida, and in 1984 they moved to Lowell. Their first son was born in May, 1984, and they married in September, 1984. They subsequently had three other sons. The defendant reported to Dr. Ball that Corby was physically, sexually, and verbally abusive throughout the marriage. Among other things, he raped and sodomized her when she was pregnant, injected her with drugs, and prevented her from leaving the house unless he was with her or in a position to monitor her.