# Commonwealth v. Mutina

> Massachusetts Supreme Judicial Court · February 11, 1975 · 366 Mass. 810

URL: https://www.frixlaw.com/law-library/cases/9726982

## Case

- **Full name:** Commonwealth vs. Harry Joseph Mutina
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** February 11, 1975
- **Citations:** 366 Mass. 810; 323 N.E.2d 294; 1975 Mass. LEXIS 1143
- **Precedential status:** Published
- **Opinion:** Concurring in part by Quirico
- **Judges:** Tauro, Reardon, Quirico, Braucher, Hennessey, Kaplan, Wilkins
- **Cited by:** 106 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9726982

## How later opinions describe it (automated extraction)

- explaining that the jury “applied their own standards of justice in arriving at a verdict” because they lacked knowledge of “the commitment necessarily flowing from a verdict of not guilty by reason of insanity”
- reversing conviction of murder in first degree where defendant presented "very strong evidence of his lack of criminal responsibility" consisting of, among other things, testimony of two psychiatric experts who concluded defendant's schizophrenia prevented him from conforming …
- finding of sanity warranted based on lay testimony and weakness in psychiatric testimony

## Opinion text

Quirico, J.
(with whom Reardon and Wilkins, JJ., join, concurring in part and dissenting in part). I concur with that part of the court’s opinion which, exercising the power conferred by G. L. c. 278, § 33E, grants the defendant a new trial. However, I am unable to agree with that part of the opinion which holds that “when the defendant is retried, should he request an instruction explaining the consequences of a verdict of not guilty by reason of insanity, . .. such instruction may properly be given.” The remainder of this opinion is limited to this area of dissent.
*824 The holding of the court from which I dissent “relates in large measure to the province of the court and the duty and function of a jury in a criminal case.” Pope v. United States, 298 F. 2d 507, 508 (5th Cir. 1962), cert. den. 381 U. S. 941 (1965). This division of responsibility was well delineated in Commonwealth v. Anthes, 5 Gray 185 (1855), where Chief Justice Shaw said, at 193-194: “In my opinion, it is for the judges to adjudicate, ... to adjudicate finally, upon the whole question of law, and for a jury to adjudicate upon the whole question of fact. It appears to me that this is the true theory and fundamental principle of the common law, both in its civil and criminal departments.” In other words, the traditional function of the jury in the trial of a criminal case in this Commonwealth is to receive the evidence presented to them, hear arguments by or on behalf of the litigants, receive instructions from the trial judge on the applicable law, retire, deliberate, find the facts, apply to them the law as given by the judge, and return a verdict that the defendant is guilty or that he is not guilty. In some cases the verdict may be that the defendant is guilty of a lesser offense included in the offense actually charged, and in some cases the verdict may be that the defendant is not guilty by reason of insanity. However, unless otherwise provided by statute, 1 the jury in this Commonwealth have no responsibility for, or authority to recommend, attempt to influence, or otherwise participate in any way in, the sentencing of a defendant whom they have found guilty.
It necessarily follows that the jury have no right to determine the crime of which the defendant is guilty, or the *825 degree thereof, on the basis of the penalty which they believe the defendant should or might receive. Under our statutes the judge alone is responsible for deciding what the penalty shall be, within the minimum and maximum permitted by statute for the offense involved, and subject to review and amendment in certain cases by the Appellate Division of the Superior Court under G. L. c. 278, §§ 28A-28C, as appearing in St. 1968, c. 666, §§ 1-3. In this respect the practice in this Commonwealth is in accord with A. B. A. Standards, Sentencing Alternatives and Procedures, § 1.1 (pp. 13,43) (Approved Draft 1968), to the effect that: “Authority to determine the sentence should be vested in the trial judge and not in the jury.” 2 It is also in accord with the Model Sentencing Act, art. HI, § 12 (2d ed. 1972), which provides that “[a] 11 sentences under this act [for felonies] shall be determined by the judge of the court” (18 Crime and Delinquency, 365 [1972]), and with the Am. Law Inst., Model Penal Code, arts. 6 and 7 (Proposed Official Draft, 1962), placing all responsibility for sentencing in “the Court,” thereby excluding the jury from any participation therein.
The jury are as much excluded from the commitment of a defendant whom they have found not guilty by reason of insanity as they are from the sentencing of a defendant found guilty. General Laws c. 123, § 16, inserted by St. 1970, c. 888, § 4, and as amended by St. 1973, c. 569, §§ 10-12, provides in part: “(a) The court having jurisdiction over the criminal proceedings may order that a person who has been found ... not guilty by reason of mental illness or mental defect in such proceedings be hospitalized at a facility... [for the care and treatment of mentally ill or mentally retarded persons] for observation and examination.” The statute then prescribes subsequent procedural steps depending on the outcome of initial observation *826 and examination, and for periodic reexamination and commitments by the court for additional periods. 3 The statute gives the jury no role in the initial or subsequent commitments to mental facilities of the defendant whom they have found not guilty by reason of insanity.
In those jurisdictions where the jury have no mandated or permitted responsibility or function in connection with the imposition of sentences in criminal cases, it is generally accepted that a party may not as of right require the judge to instruct the jury about the penalty which may or must be imposed in the event of a conviction. The principal reasons for this rule are that such an instruction does not assist the jury in determining the issue of guilt or innocence and that knowledge of the permitted or prescribed penalty may cause or influence the jury to return a verdict designed to result in a particular penalty rather than one based on the facts and the law of the case. 4
For substantially the same reasons, it is generally held that a party to a criminal case may not as of right require the judge to instruct the jury about the possibility that the penalty imposed pursuant to a conviction may be suspended or cancelled or that the period of imprisonment may be reduced under laws relating to pardons or parole. In *827 Commonwealth v. McNeil, 328 Mass. 436 (1952), the defendant excepted to the judge’s refusal to instruct the jury that if the defendant was found guilty of murder in the first degree with a recommendation that the death penalty be not imposed the defendant would not be eligible for parole from the resulting life sentence. G. L. c. 265, § 2. We overruled that exception with the following holding, at 442: “The defendant’s contention is, in substance, that if the jury knew that the defendant could not be paroled they would be more likely to recommend a life sentence. Nothing in the statute suggests that parole is any concern of the jury. We think the judge was right.” In the more recent case of Commonwealth v. Goodwin, 356 Mass. 632, 634 (1970), we held: “The judge properly and adequately stated the rule applicable to instructions on parole. In conformity with the McNeil case he clearly explained that parole was of no concern to the jury in reaching their verdict.” 5
In my opinion, the question whether a jury should be informed about the legal consequences of a verdict of not guilty by reason of insanity, in particular the consequence that the defendant in such a case, although acquitted, may be committed to a mental institution, is but a refinement of the general question whether the jury in a criminal trial should ever be informed of the legal consequences of their verdict. Admittedly, there are numerous judicial precedents which support a position on one or the other side of this question. The court in this case has elected to adopt the view which appears to have its genesis, at least as to Federal courts, in Taylor v. United States, 222 F. 2d 398, 404 (D. C. Cir. 1955), where the court said: “[W]e think that when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a ‘hospital for the insane’ as long as ‘the public safety and . . . [his] welfare’ require.” *828 This view was then followed, with an expanded discussion of reasons, by a divided court in Lyles v. United States, 254 F. 2d 725, 728-729 (D. C. Cir. 1957), cert. den. 356 U. S. 961 (1958), 362 U. S. 943 (1960), and 368 U. S. 992 (1962). 6
Unlike the court in today’s opinion, I find more persuasive the logic and reasoning of the three judges who dissented on this point in the Lyles decision, 7 and the similar or parallel logic and reasoning of the many decisions of other State courts which have reached a similar conclusion. I therefore respectfully dissent from that part of the court’s opinion in this case.
A large majority of the jurisdictions which have faced this question have come to the same conclusion as the minority in the Lyles decision, some, for example State v. Park, 159 Maine 328 (1963), expressly rejecting the majority view in that case. In the Park decision (at 336), the court said that the jury were not concerned with “whatever may transpire after the verdict,” and it refused to make an *829 exception for a case involving a verdict of not guilty by reason of insanity. In Brown v. State, 8 Md. App. 462, 466 (1970), a jury while deliberating sent the judge the following written question: “If Mr. Brown ... is found insane by the jury, will he be allowed to go free or will he be put in a mental institution?” The judge answered only as follows: “If the defendant is found not guilty by reason of insanity, the disposition will be made by the Court in accordance with the law of Maryland.” The Court of Special Appeals said, at 466-467: “The information requested was in nowise relevant or material to the jury’s function of determining the sanity vel non of appellant. Such determination could only be properly made by them on the evidence pertinent thereto before them; the disposition to be made by the court in the event that the jury determined appellant was insane could play no part therein. ... It would have been manifestly improper for the court to declare to the jury what it would do if the jury found appellant insane, just as it would be improper for a court to tell a jury what sentence it would impose if the jury returned a verdict of guilty of a substantive offense.”
In State v. Garrett, 391 S. W. 2d 235, 242 (Mo. 1965), the court expressly refused to follow the Lyles case, referring to the division of the court on the present question. It categorized the legal consequence of an acquittal by reason of insanity as an “extraneous consideration” and said the requested instruction was “nothing less than an invitation for the jury to find the defendant mentally irresponsible because he would then be confined anyway.”
In State v. Conforti, 53 N. J. 239 (1969), the Supreme Court of New Jersey quoted with approval, at 244-245, the following language from the decision of the Appellate Division in State v. Bell, 102 N. J. Super. 70, 75-76 (1968), cert. den. 52 N. J. 485 (1968): “[W]e decline to adopt the minority view, as exemplified by Lyles v. United States ... that a jury must be informed of the consequences of a verdict of not guilty by reason of insanity unless the defendant specifically requests otherwise. . . . Generally speaking, the jury’s duty, as distinguished from that of the *830 court, is to decide the issue of defendant’s guilt or innocence. The defense of insanity does no more than present a question for the jury’s consideration in determining that issue.... In making its determination, the jury should not be influenced by a consideration of what will be the result of its verdict, nor should its attention be distracted from its chief function.”
In People v. Adams, 26 N. Y. 2d 129 (1970), the court said in declining to follow the Lyles rule, at 138-139: “There is conflict amongst the courts throughout the country on this issue. In a few jurisdictions it has been held that the instruction is proper and should be given____However, in a majority of the jurisdictions, the courts have held that such an instruction should not be given. ... It was, and is, our view that it would be improper for the court to give the instruction requested by the defendant. Consideration of punishment or disposition of the defendant is beyond the province of the jury. While it might be argued that the jury presently tends to consider possible punishment even though it is beyond their province, we conclude that to permit the instruction requested would only tend to exacerbate this problem. Such instruction might, as some of the majority jurisdictions have noted, prompt a jury to find insanity where the evidence might not otherwise have warranted such a finding.”
In State v. Hood, 123 Vt. 273 (1963), the court quoted from both the Taylor and the Lyles cases. As to the statement in the Lyles case about the jury’s not being well informed on the legal consequences of an acquittal by reason of insanity, Chief Justice Hulburd said at 276: “We break off the quotation in order to observe that we doubt that people in general are as ill-informed on the subject as the opinion assumes.” He then quoted further from the Lyles opinion’s holding that such an instruction shall be given unless it “appears affirmatively on the record” that the defendant does not want it given. To this Chief Justice Hulburd makes the pithy comment: “We think that the latter part of the opinion discloses the unacceptable nature of the reasoning upon which the holding rests. It is not one *831 which we would care to follow. At its best it tends to give justice, as applied to this situation, an a la carte quality in which the defendant may make as wily a choice as possible. If the rule were just, there would be no room for maneuvering of this sort. At its worst, the rule would seem to come close to inviting the jury to compromise, or at least to diverting their collective minds into areas which are not for their consideration. We like better the reasoning found in the dissent ... [in the Lyles case, quoting part of the dissent] .” 8
The court’s opinion in the present case concludes with a holding that the judge may properly instruct the jury on the legal consequences of an acquittal by reason of insanity only when the defendant requests such an intruction. The comparable language in the Lyles decision is (pp. 728-729): “Sometimes a defendant may not want such an instruction given. If that appears affirmatively on the record we would not regard failure to give it as grounds for reversal.” This is the language which Chief Justice Hulburd said, in State v. Hood, 123 Vt. 273, 276 (1963), “tends to give justice, as applied to this situation, an a la carte quality in which the defendant may make as wily a choice as possible.” I agree with that criticism. By giving all the options to the defendant supposely to avoid the possibility that a jury will convict a defendant out of fear that to acquit him by reason *832 of insanity will mean that he will be turned loose on society, the rule now adopted does not prevent, and perhaps invites, several equally likely and equally unacceptable possibilities.
One possibility is that the jury, knowing that acquittal by reason of insanity will result in the defendant’s hospitalization rather than release, may return that verdict in a case where they would otherwise totally acquit him. We must remember that in the instant case the defendant’s commission of the homicide was apparently not seriously controverted, and the defendant’s sanity seemed to be the only seriously contested issue. Where the defendant’s commission of the act in question and his criminal responsibility are both closely disputed matters, an instruction such as that permitted by the court today may well provide the jury with an irresistible temptation to compromise on a verdict of not guilty by reason of insanity. Another such possibility is that the jury, having the information the judge would provide, may find it much easier to acquit a defendant by reason of insanity than to convict him in a case where the evidence and the law require a conviction.
In our desire to afford the defendant a fair trial, we should not lose sight of the fact that the Commonwealth too has a right to a fair trial. Commonwealth v. Roy, 349 Mass. 224, 227 (1965). The defendant is entitled to a verdict by a jury who are not influenced by the legal consequences of that verdict. The Commonwealth is entitled to no less. I do not believe that the rule adopted in the court’s opinion recognizes the Commonwealth’s right, equal to that of the defendant, to a just verdict.
Both possibilities mentioned above point up the fundamental distinction between my view and that of the court on the issue before us. The court apparently believes that the jury cannot be restrained from considering matters not germane to their proper duties and that, accordingly, they should be permitted to consider at least one such nonger-mane matter in cases where that might be advantageous to the defendant. I believe, on the other hand, that while the jury undisputably have the power to make irreversible *833 errors (if only because of the constitutional provisions concerning double jeopardy), they have no right to make errors and ought not in any way be either encouraged to err or even told of their power to do so. See United States v. Simpson, 460 F. 2d 515, 518-520 (9th Cir. 1972), and cases there cited. Specifically informing the jury of matters beyond their proper scope of concern can only lead the jury to consider such matters and to bring in a verdict they deem necessary to obtain the disposition they think proper for the defendant after that verdict is returned. 9 Such is not, for good reason, the province of the jury.
Before departing from the long established salutary rule that a jury may not consider the legal consequences of their verdict, I would consider any other proper measure which might ensure the return of a verdict based on the evidence and the law applicable to the case. One such measure would be the giving of appropriate instructions to the jury on what they may and may not consider in reaching a verdict. It is not uncommon for a trial judge to instruct a jury in the trial of a claim for money damages, particularly in the trial of an action of tort for personal injuries, that they may not speculate on or consider such factors as the fee which the plaintiffs counsel may charge in event of recovery, the amount of insurance, if any, the defendant may have, or whether the amount recovered by the plaintiff will be subject to an income tax. I see no reason why a judge presiding over a criminal trial which involves a defense of insanity should not instruct the jury that they may not concern themselves with the legal consequences of an acquittal by reason of insanity.
That is exactly the approach which was upheld as long ago as 1909 in State v. Barnes, 54 Wash. 493, 494-496, 499-500 . There the jury reported that they had agreed that the *834 defendant had committed a homicide, but that they would be unable to agree on the defense of insanity unless they knew whether, in the event they found him insane, he would be incarcerated for life or whether he could be discharged at any time. The judge thereupon discharged the jury with the following statement at 495-496: “The fact that you are making your verdict in this case dependent upon the punishment, or what might be done with this defendant after this trial, satisfies me that you should not consider this case at all. It is not a matter for your consideration whether he would be discharged or not discharged. . . . [Tjhat ought not to enter into your consideration at all. It has nothing to do with the question of whether he was sane or insane at the time he committed the act. It goes to his punishment; and, in other words, to be plain and curt with you, it is none of your business; it is the business of the law; and I, therefore, seeing that you cannot agree without taking that matter into consideration (which is entirely improper to take into consideration) feel that I would be doing the prisoner and the public both a great injustice to allow you to determine his guilt or innocence upon a question of that kind; and I therefore discharge you from further consideration of the case.” The decision on appeal included the following statement (p. 500): “It certainly would have been improper for the trial court to have aided them [the jury] in reaching a verdict by any such method or to have instructed them as requested, with that object in view.”
We are not concerned in this case with that part of G. L. c. 265, § 2, as appearing in St. 1951, c. 203, which provides: “Whoever is guilty of murder in the first degree shall suffer the punishment of death, unless the jury shall by their verdict, and as a part thereof, upon and after consideration of all the evidence, recommend that the sentence of death be not imposed, in which case he shall be punished by imprisonment in the state prison for life. No such recommendation shall be made by a jury or recorded by the court if the murder was committed in connection with the commission of rape or an attempt to commit rape.” For the ■constitutional questions resulting from the manner in which juries exercised their discretionary power to negative an otherwise mandatory death penalty, see Furman v. Georgia, 408 U. S. 238 (1972), Stewart v. Massachusetts, 408 U. S. 845 (1972), Commonwealth v. LeBlanc, 364 Mass. 1, 14-15 (1973), and Commonwealth v. McLaughlin, 364 Mass. 211, 233-234 (1973).
For statements supporting the standard and criticising jury participation in sentencing, see the commentary to § 1.1. For similar criticism and for discussion of sentencing by a “sentencing tribunal” other than the trial judge, see Powers, The Basic Structure of The Administration of Criminal Justice in Massachusetts, pp. 117-118 (6th ed. 1973).
Before G.L. c. 123 was totally revised by St. 1970, c. 888, § 4, it included § 101, from which the new § 16 evolved in part. The former § 101 provided: “If a person indicted for murder or manslaughter is acquitted by the jury by reason of insanity, the court shall order him to be committed to a state hospital or to the Bridgewater state hospital during his natural life. The governor, with the advice and consent of the council, may discharge such a person therefrom when he is satisfied after an investigation by the department that such discharge will not cause danger to others.”
It is appropriate to note at this point that the legal consequences of a verdict of not guilty by reason of insanity under the present statute, G. L. c. 123, § 16, are quite different from what they were under the previous statute, G. L. c. 123, § 101. Section 101 applied only to persons tried for murder or manslaughter, and the mandatory consequence of an acquittal by reason of insanity was that the defendant was “committed to a state hospital or to the Bridgewater state hospital during his natural life.” Section 16 now applies to all crimes, and on acquittal by reason of insanity the commitment to a hospital is neither mandatory nor permanent, and there is no way of knowing how long the defendant will be held in custody if committed to a hospital.
For further discussion of this rule and for cases relating thereto, see 75 Am. Jur. 2d, Trial, § 888 (1974), and annotations in 17 A. L. R. 1117,1123 (1922), and 138 A. L. R. 1230,1235 (1942).
For further discussion of this rule and for cases relating thereto, see 75 Am. Jur. 2d, Trial, §§ 889-890 (1974), and annotations in 8 A. L. R. 2d 996 (1949) and 12A. L. R.3d832 (1967).
I believe that it should be noted at this point that neither the Taylor nor the Lyles decision was influenced by or premised on any constitutional considerations or requirements. They and later similar decisions resulted in part from the fact that the statutory law of the District of Columbia included a provision for the hospitalization of defendants acquitted by reason of insanity. Neither those two nor any other Federal court decisions represent or suggest any constitutional compulsion or obstacle affecting the freedom and ability of this court now to elect between the views of the majority and the minority in the Lyles case. See United States v. McCracken, 488 F. 2d 406, 416-422 (5th Cir. 1974).
The judges who dissented in the Lyles case on this point said at 733 that since the only function of the jury “is to determine from the evidence the factual issue of guilt or innocence, ... in reaching a verdict they should not be swayed by an extraevidentiary consideration such as whether they approve of the possibility of probation or of the penalty which may be imposed by the trial judge. The jury will probably know . . . that a verdict of guilty will result in the imposition of punishment unless probation is granted, but they will not know what the punishment may be and, therefore, will not be influenced to acquit if they consider the possible penalty too severe.
“The issue of insanity, fairly raised, does no more than present another factual question to the jury: whether the defendant was mentally responsible when the criminal act was done. That issue also should be determined on the basis of the evidence only and, in deciding it, the jury should not be influenced by a consideration of the result of an acquittal by reason of insanity; that is an extraneous consideration wholly unconnected with the evidence from which the jury must reach a determination of the factual issue raised concerning the defendant’s mental condition.
“In short, the jury should be told nothing as to how the defendant will be dealt with in case of acquittal by reason of insanity.”
The following are additional State cases which include holdings or statements supporting the view that a defendant may not, as matter of right, require the judge to instruct the jury on the consequences of an acquittal by reason of insanity. Carr v. State, 43 Ala. App. 642, 649 (1967), cert. den. 389 U. S. 877 (1967). Campbell v. State, 216 Ark. 878 (1950). State v. Blake, 209 Kans. 196, 205-208 (1972). Smith v. State, 220 So. 2d 313, 316 (Miss. 1969). State v. Prevost, 105 N. H. 90 (1963). State v. Bracy, 215 N. C. 248 (1939). State v. Boham, 29 Ohio App. 2d 142, 150-152 (197l). State v. Daley, 54 Ore. 514 (1909). Commonwealth v. Gable, 323 Pa. 449 (1936). Rollins v. Commonwealth, 207 Va. 575, 582-583 (1966). State v. Barnes, 54 Wash. 493, 495-496 (1909).
The parties have cited numerous Federal decisions, other than the Taylor and Lyles decisions, in support of their contentions. I have intentionally limited the use of such other Federal citations for the reason that the Taylor and Lyles decisions involve a statute peculiar to the District of Columbia for commitment of persons acquitted by reason of insanity, with no counterpart of that statute available to Federal courts outside of the District. That this difference makes many Federal decisions outside of the District of questionable precedential value on this issue is pointed out and explained in United States v. McCracken, 488 F. 2d 406,416-422 (5th Cir. 1974).
Bruton v. United States, 391 U. S. 123 (1968), cited today by the court for the proposition that juries will not always follow curative instructions as to how certain evidence can be applied, surely also supports the view that (1) informing the jury of the defendant’s possible disposition after a particular verdict and then (2) telling them to disregard that information in reaching their verdict may riot be entirely successful.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9726982. Public record. Not legal advice.