Commonwealth v. Shea

644 N.E.2d 244, 38 Mass. App. Ct. 7, 1995 Mass. App. LEXIS 6
CourtMassachusetts Appeals Court
DecidedJanuary 5, 1995
DocketNo. 93-P-1066
StatusPublished
Cited by11 cases

This text of 644 N.E.2d 244 (Commonwealth v. Shea) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Shea, 644 N.E.2d 244, 38 Mass. App. Ct. 7, 1995 Mass. App. LEXIS 6 (Mass. Ct. App. 1995).

Opinion

Perretta, J.

On the afternoon of June 15, 1991, the defendant and his friend invited two women who were sun[8]*8bathing on the banks of the Charles River to board the defendant’s boat and go for a ride. Once the women were aboard, the defendant headed out to the open sea. An hour later and about five miles off shore from Boston, he stopped the boat, disrobed, and made sexual remarks and advances toward the women. He ignored all requests that he dress and stop his offensive behavior. When the women demanded that he return them to Boston, he threw them overboard and drove away without a backward glance. The women were rescued after managing to swim within shouting distance of a sailboat. On evidence of these acts, a jury found the defendant guilty, as to each woman, of kidnapping, attempted murder, assault and battery by means of a dangerous weapon (the ocean), and indecent assault and battery. The defendant argues on appeal that the trial judge erroneously denied (1) his request for a continuance of the trial; (2) his motion in limine by which he sought to preclude the Commonwealth’s use of a videotape showing the ocean from the perspective of the women in the water and the defendant on his boat; and (3) his motion for required findings of not guilty on all the indictments. Although we conclude that the ocean is not a dangerous weapon within the meaning of G. L. c. 265, § 15 A, we affirm the kidnapping and attempted murder convictions.1

1. The motion for a continuance. Trial counsel was appointed to represent the defendant on August 29, 1991.2 On February 21, 1992, he filed a motion seeking funds for a psychiatric evaluation of the defendant. The motion was allowed that same day, and the case was continued to April 21, 1992, “for trial.” One week before the scheduled trial date, counsel sought a continuance of at least two months. The Commonwealth opposed the motion on numerous grounds, not the least of which was the fact that the victims had been receiv[9]*9ing threatening mail and telephone calls. The judge denied the request and the defendant claims error. “[A] motion for continuance . . . lies within the sound discretion of the judge, whose action will not be disturbed unless there is a patent abuse of that discretion, which is to be determined in the circumstances of each case.” Commonwealth v. Bettencourt, 361 Mass. 515, 517-518 (1972). We relate the circumstances of the denial of the defendant’s motion.

An affidavit and a letter from a psychiatrist, dated March 17, 1992, were attached to the motion for a continuance. It appears from these documents that the defendant’s medical history indicated that he had suffered a series of head injuries from which he might have sustained brain trauma and that, according to the psychiatrist, the “charges now pending against him may reflect behavior caused by those head injuries.” As further stated by the psychiatrist: “For a more conclusive answer to the question of the effect of Mr. Shea’s head traumas to his alleged criminal acts, it would be necessary for him to undergo independent extensive neuropsychological testing and, in addition, have a BEAM study of the electrical activity of his brain.”

As of April 14, 1992, the date of the hearing on the motion for a continuance, the BEAM study had been completed and the results reported to the psychiatrist. A copy of the report which had been submitted to the psychiatrist was also attached to the motion. The report recited the following conclusion of the BEAM study: “Overall this study is quite compatible with a history of multiple head injuries and suggests a generalized encephalopathy with irritable qualities falling just short of being a seizure disorder. The latter diagnosis, of course, should be made on clinical grounds.”

It was not until the psychiatrist was called to testify at trial that the defendant’s theory of defense took on clarity: on the afternoon of June 15, 1991, he was experiencing a temporal lobe seizure which prevented him from formulating the specific intent necessary for criminal liability for his actions. At the time of the hearing on the motion, however, the trial judge was informed only that a continuance of two [10]*10months was necessary so that in addition to the psychiatrist, various other named medical professionals could also review the results of the BEAM study and conduct psychoneurological testing of the defendant. Even were we to conclude that an adequate case for granting the motion had been made at that time, but see Commonwealth v. Bettencourt, 361 Mass. at 517-518, the defendant has failed to show that his defense was prejudiced by the denial of his request.

Although the defendant argues that the denial of the continuance prevented psychoneurological testing which would have allowed the psychiatrist to opine whether, at the time in question, the defendant was experiencing a temporal lobe seizure, the psychiatrist’s testimony does not support the claim. The psychiatrist testified on voir dire that had additional psychoneurological testing been available, he could be more “definitive” or “conclusive” in his opinion concerning the defendant’s potential for temporal lobe seizures.3 The psychiatrist nonetheless could, and did, relate to the jury that it was his opinion, to the requisite degree of medical certainty, that the defendant’s “history, test results, and behavior is consistent with a temporal lobe disorder.”

As for the more immediate question of whether the defendant was experiencing a seizure at the time of the incident, the psychiatrist testified, on voir dire, that he could not say “with [a] high degree of certainty that at that moment on that boat, that type of episode occurred.” Rather, he could state only that “this individual, with his condition, has a high potential for things like that happening.” At no time was the psychiatrist asked whether psychoneurological testing could reveal to a reasonable degree of medical certainty whether a person who suffered from temporal lobe disorder [11]*11had in fact experienced a seizure at a specific time in the past.

In sum, the defendant’s temporal lobe disorder was fully presented to the jury. Although the defendant’s expert and the expert for the Commonwealth agreed that the defendant’s BEAM study indicated a temporal lobe abnormality, they sharply disagreed on the issue whether the defendant’s actions were consistent or inconsistent with a temporal lobe seizure. However, any weaknesses that the jury might have found in the testimony of the defendant’s psychiatrist cannot, on the record before us, be attributed to a lack of psychoneurological testing and the denial of the continuance.

2. The videotapes. At trial, the Commonwealth was allowed to use two chalks, i.e., videotapes, to illustrate to the jury the victims’ testimony concerning the condition of the ocean when the defendant threw them into the water and abandoned them. The first videotape depicted the victims’ view from the water as they watched the defendant drive away, and the second showed how two people in the water would appear from the vantage point of the back of the boat as it drove away from them. The Commonwealth argued that the tapes were relevant to the defendant’s murderous intent. After an in camera viewing of the tapes, the trial judge ruled that the videos could be used as chalks. Immediately before the jury viewed the tapes, the trial judge instructed: “This is not offered for your consideration as evidence in this case.

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Bluebook (online)
644 N.E.2d 244, 38 Mass. App. Ct. 7, 1995 Mass. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-shea-massappct-1995.