COMMONWEALTH vs. ARTHUR R. MARTIN.

GREANEY, C.J. After a Superior Court jury trial the defendant, Arthur R. Martin, was convicted of murder in the second degree (on an indictment charging murder in the first degree) and of unlawfully carrying a firearm, G. L. c. 269, Section 10(a), and sentenced. [Note 1] Represented by new counsel, he has appealed from the convictions and from the subsequent denial of his motion

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for a new trial. Martin's sole contention at trial was lack of criminal responsibility and the dominant issue on appeal concerns whether that contention was prejudicially undermined by violations of G. L. c. 233, Section 23B, as explained in Blaisdell v. Commonwealth, 372 Mass. 753 (1977). We conclude that there must be a new trial.

Necessary background for decision must be set out at some length. About 10:00 P.M. on February 18, 1981, the Pittsfield police responded to the scene of a shooting outside a pizza parlor in Pittsfield. The victim, John Fontaine, Sr., was discovered lying near his automobile, dead. An open buck knife (later identified as belonging to Fontaine) and several spent shell casings were found near the victim. Witnesses indicated that they had seen Fontaine drive up to the restaurant, leave his automobile, and call out for Martin. Fontaine and Martin confronted each other for a few moments, after which Martin fired several shots at Fontaine from a handgun. Following the shooting, Martin drove away in his automobile. He was arrested the next day in Albany, New York. The handgun was never found.

After the indictments were returned, Martin was committed to Bridgewater State Hospital, pursuant to G. L. c. 123, Section 15(b), for competency and criminal responsibility examinations. At Bridgewater he was examined by the hospital's medical director, Dr. William S. James, a psychiatrist. Dr. James concluded, in separate written reports, that Martin was competent to stand trial but was not criminally responsible for his actions at the time of the shooting by reason of a mental illness "most probably paranoia or paranoid disorder." In his responsibility report Dr. James noted that Martin would discuss the incident only up to the time when Fontaine had called out to him, after which Martin "refused to talk more about what happened."

Upon learning of Dr. James' responsibility report, the Commonwealth moved to ascertain whether Martin intended to raise an issue of lack of criminal responsibility and, if so, whether he intended to offer psychiatric testimony based on statements by him revealing his state of mind at the time of the

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shooting. See Mass.R.Crim.P. 14(b)(2)(A), 378 Mass. 878 (1979). After the motion was answered, [Note 2] Martin was ordered to submit to a second examination by Dr. Marc A. Whaley, a psychiatrist. A detailed protective order to govern this examination was fashioned in keeping with the requirements of Mass.R.Crim.P. 14(b)(2)(B), 378 Mass. 878 (1979). See the Blaisdell case, 372 Mass. at 768-769. [Note 3]

After examining Martin, Dr. Whaley agreed with Dr. James' opinion that Martin was mentally ill but indicated that he could not reach a firm conclusion on the question whether Martin's mental illness rendered him criminally insane at the time of the shooting. Dr. Whaley asked the prosecutor's office to have Martin examined by a psychologist, and such an examination was ordered. [Note 4] After receiving the results of that examination, Dr. Whaley submitted a written report which concluded that Martin was mentally ill (by reason of paranoia or a paranoid disorder) but that he was able to appreciate the nature of his acts

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and to conform his behavior to the requirements of the law. Dr. Whaley reached this conclusion after probing Martin about his state of mind at the time of the shooting. Among other things, Dr. Whaley's report recited these statements by Martin as to his thought processes: "At any rate, he recalls Mr. Fontaine standing there with his hand on his chest and Mr. Martin believing that Mr. Fontaine had a knife in his hand . . . . At this particular moment, Mr. Martin described his mental state as being `I felt like a new person . . . there was a hot feeling going through my body, and I never felt so good in my life.' At that moment, he recalls shooting Mr. Fontaine eight times, emptying the gun, and `I felt good . . . I knew I would get arrested, and I didn't care, and I didn't want to get arrested there because they had friends in the police department and in the courts . . . and they might even kill me.'" In Dr. Whaley's opinion these statements provided an important basis for concluding that Martin was "reassert[ing] his masculine prowess" and not acting under the duress of mental illness. Shortly after its filing, Dr. Whaley's report found its way into the prosecutor's hands. No effort appears to have been made to seal its contents, or to deal with it in conformity with the explicit and unambiguous requirements of the protective order (see note 9, infra).

During trial, testimony was elicited about the details of the homicide, Martin's arrest in Albany, and his long-standing obsessive fear of Fontaine and others who Martin thought intended to injure or kill him. [Note 5] The focus thereafter turned to the question of Martin's criminal responsibility. The defense called Dr. James, who testified that Martin harbored delusions that Fontaine had taken away his wife, ruined his business, and had intended to kill him, either alone or with help from "organized crime." After describing Martin's fears of Fontaine,

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Dr. James testified that Martin believed that Fontaine had come to the restaurant to kill him. Dr. James further testified that Martin had expressly refused to discuss his state of mind at the time of the shooting or directly admit to killing Fontaine. Based on the information available to him (including interviews in which Martin declined to discuss his state of mind when he fired the handgun), Dr. James concluded that Martin was suffering from paranoia at the time of the shooting which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Prior to the prosecutor's offer of Dr. Whaley's testimony in rebuttal, the colloquy set forth in the margin took place between the judge and counsel. [Note 6] After reviewing his examination

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of Martin and the standard for determining criminal responsibility, Dr. Whaley rendered his opinion that Martin's mental disorder did not render him unable to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Dr. Whaley repeated and emphasized that his opinion was based on Martin's statements about his state of mind at the precise time of the shooting, in particular the statements set forth earlier in the text. Defense counsel made no objection to Dr. Whaley's testimony concerning the statements. However, later in Dr. Whaley's direct examination, defense counsel objected to questions concerning conversations between the psychiatrist and Martin pertaining to Martin's disposal of the weapon. Defense counsel expressly grounded this objection on the "ground rules for the testimony," see note 6, supra; an apparent reference to the applicability of G. L. c. 233, Section 23B.

The only other event of significance occurred in the prosecutor's final argument. As might be expected, the final arguments of counsel centered on the question of which of the two psychiatrists should be found to be more credible. In an attempt to discredit Dr. James' testimony and to support Dr. Whaley's testimony, the prosecutor launched into the argument set forth in the margin. [Note 7] These comments were not objected to by defense counsel.

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1. Blaisdell v. Commonwealth, 372 Mass. 753 (1977), interpreted the provisions of G. L. c. 233, Section 23B, [Note 8] to impose stringent safeguards on the use of incriminating statements made by an accused in the course of a compelled psychiatric examination. Blaisdell noted that a defendant who intends to raise the issue of his criminal responsibility at trial may be compelled, in the interests of fairness to the prosecution, to submit to a court ordered psychiatric examination. "This is so because the defendant, by voluntarily proffering evidence [of lack of responsibility] to the jury, has waived his privilege against self-incrimination to a limited extent." Commonwealth v. Callahan, 386 Mass. 784, 789 (1982). By submitting evidence of insanity, however, a defendant does not make a total waiver of his privilege. A full waiver will occur only when the defendant offers testimony either through himself or through experts based on his testimonial statements. 372 Mass. at 769. Otherwise, "[g]overnment psychiatric testimony . . . shall be given in a manner consistent with the requirements of G. L. c. 233, Section 23B," ibid., which excludes all statements

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by a defendant constituting a "confession of guilt." The term "confession of guilt" was broadly defined in Blaisdell to "include inculpatory statements constituting admissions short of a full acknowledgement of guilt." 372 Mass. at 763. We read the Blaisdell and Callahan decisions together as prohibiting the introduction in evidence of a defendant's testimonial statements (in the nature of confessions or, as here, admissions) disclosed in the course of a court-ordered psychiatric examination unless the defendant has first placed the statements in evidence either through his own testimony or through the testimony of his expert.

There is no question that Dr. Whaley's testimony disclosing Martin's statements about his state of mind at the time of the shooting constituted the use of material interdicted by G. L. c. 233, Section 23B. [Note 9] The statements meet the Blaisdell definition of inculpatory statements. See also Commonwealth v. Callahan, 386 Mass. at 788. Not only did they form the core of Dr. Whaley's opinion but they could also have materially affected the jury's consideration of the intent and malice requirements of second degree murder. The testimony should not have been admitted because the defendant did not testify and because we do not read Dr. James' limited testimony on Martin's statements to him involving the events leading up to the shooting as opening the door to the revelation of his inner thought processes at the critical time. The error in the admission of the statements was exacerbated by the prosecutor's closing argument, see note 7, supra, which sought to discredit Dr. James' opinion. Both of these events touched directly (and adversely) on Martin's constitutionally secured right to remain silent. See Commonwealth v. Burke, 339 Mass. 521, 532-533 (1959); Commonwealth v. Hawley, 380 Mass. 70, 82-86

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(1980); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983); Commonwealth v. Kendall, 9 Mass. App. Ct. 152, 160-162 (1980).

2. We cannot accept the Commonwealth's arguments that defense counsel's failure to object to some of the invasions of the privilege precludes relief, or that the errors, viewed in the context of the entire trial, are harmless. In our view, the admission of Martin's statements, the cross-examination of Dr. James, and the prosecutor's final argument, could only have left the defendant's claim of insanity in shambles by creating the impression with the jury that critical information on the issue of responsibility had been furnished to the Commonwealth's expert but withheld from the defendant's expert. We have no hesitation in concluding (if it is even necessary to analyze the issues from this perspective in the light of Blaisdell) that the aggregate of the problems described above gave rise to a substantial risk of a miscarriage of justice, see Commonwealth v. Freeman, 352 Mass. 556, 564 (1967); Commonwealth v. Howell, 386 Mass. 738, 739 (1982), and that they would fail any reasonable test for determining the existence of harmless error, [Note 10] Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445-446 (1982). No other argument has been made by the Commonwealth, or discussed by the judge in his memorandum, which persuades us that a new trial should be denied.

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3. The discussion above has been largely directed to the murder charge. The carrying charge also involves a mens rea element. See Commonwealth v. Jackson, 369 Mass. 904, 916 (1976); Commonwealth v. Papa, post 987 (1984). Since that issue could have been decided favorably to the defendant by the jury's conclusion on proper evidence that the Commonwealth had not proved that Martin was sane at times relevant to the handgun offense, a new trial is also required on that charge.

4. The balance of the issues argued which may occur at retrial are questions calling for the exercise of tactical judgments by Martin's new counsel or questions best considered upon the state of the evidence at retrial. All of the issues involve settled principles of law. We think they can be adequately handled in the context of the evidence at retrial and do not call for discussion at this time.

The judgments are reversed, the verdicts are set aside, and both indictments are to stand for a new trial.

So ordered.