COMMONWEALTH vs. RICHARD KENDALL.

BROWN, J. The defendant appeals under the provisions of G. L. c. 278, Sections 33A-33G, from his convictions on indictments charging rape, robbery, and breaking and entering with intent to rape.

At trial, the defendant interposed the claim of insanity at the time of the incidents, and produced expert psychiatric witnesses who gave their opinions supporting his claim. The Commonwealth produced its own psychiatric witness, who disputed this claim.

The defendant raises the following issues in this appeal: (1) whether the judge erred in allowing the Commonwealth's psychiatric expert to testify to hearsay allegations by the victim and by the defendant's wife which were incompetent as substantive evidence, under the guise that they formed part of the basis of his opinion that the defendant was criminally responsible; (2) whether the judge erred in not allowing one of the defendant's psychiatric experts to explain an accepted mode of treating paranoid schizophrenia so as to bolster the professional credibility of the defendant's treating psychiatrist and primary expert witness, who had been impeached by the Commonwealth with respect to the

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mode of his treatment as well as other matters; (3) whether the judge erred in allowing the Commonwealth's psychiatrist to testify that the defendant refused to submit to a court-ordered criminal responsibility examination; and (4) whether the prosecutor's closing argument was improper. We conclude that there was error and therefore reverse the convictions.

We summarize the evidence presented at the trial. In its case in chief, the Commonwealth called the victim as its first witness. She testified as to the rape and the manner in which it had been committed, the details of which were not disputed. The Commonwealth also called a friend of the victim and three detectives who had participated in the investigation of the case and in the defendant's arrest. The testimony elicited from these latter sources did not address squarely the insanity issue raised by the defendant.

The defendant called his wife, Evelyn Kendall, and his father, William Kendall, who related incidents from the defendant's childhood and marriage that suggested a history of emotional problems. In addition, the defendant called and relied in great part on the expert testimony of Dr. Smith, [Note 1] who for eight years prior to the incident had treated the defendant, and a Dr. Jiminez, who had examined the defendant after the incident. [Note 2]

Dr. Jiminez was called in an effort to rehabilitate Dr. Smith. Defense counsel sought to elicit from Dr. Jiminez, inter alia, an expert opinion substantiating the scientific credibility and advisability of employing the method of treating the defendant which Dr. Smith had employed. [Note 3] This testimony was excluded.

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In addition to vigorously and effectively cross-examining Dr. Smith, the Commonwealth renewed its case by calling, in rebuttal, a psychologist who had worked with the defendant for nine months while he was a patient at Boston State Hospital in 1974; a social worker who had had contact with the defendant while he was held at Bridgewater State Hospital (Bridgewater) from August of 1976 to the trial date; and a psychiatrist at Bridgewater, Dr. Cronin, who had attempted unsuccessfully to interview and perform a criminal responsibility examination on the defendant [Note 4] but who had interviewed the victim, the arresting officers and the defendant's wife. Dr. Cronin also reviewed the grand jury minutes, the transcript of the competency hearing of August 25 and 26, 1976, and the defendant's medical records. Furthermore, Dr. Cronin was present throughout the trial and thus had the opportunity to listen to the testimony of the various witnesses and observe the defendant for eight days. These three witnesses gave opinions adverse to the defendant's claim of insanity.

Dr. Cronin, however, provided testimony which proved to be the centerpiece of the Commonwealth's case and which raises the primary issue in this appeal. Because he was unable to speak with the defendant his testimony was, perforce, limited by that which he had ascertained from the sources enumerated above. Rather than responding to hypothetical questions which incorporated this information (to the extent it was elicited at trial), or summarizing relevant

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portions of such information so as to construct a foundation for his ultimate expert opinion, Dr. Cronin's testimony consisted in large part of his repeating at great length factual allegations he reportedly had learned in the course of interviews he had had with the victim and the defendant's wife. Most of this information was not testified to by those witnesses [Note 5] in court. [Note 6]

Dr. Cronin testified at great length, often times engaging in extended narrative responses, to questions regarding information that he reportedly had learned from the defendant's wife during an interview that lasted between one and one-half and two hours. Dr. Cronin testified that the defendant's wife had told him, inter alia, that the defendant's relationship with Dr. Smith was "bizarre and unprofessional"; that Dr. Smith had perverted sexual attitudes; that the defendant had been arrested "at least fifty times" for serious crimes but that each time Dr. Smith secured his release before a record of the arrest was made by concocting false insanity defenses; that in her opinion the defendant never suffered from psychotic delusions, and that the defendant threatened to murder her if she ever "turned on him" and that he would make it look like suicide, which Dr. Smith would substantiate in the death certificate. [Note 7]

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The Commonwealth offered this testimony, over the defendant's objection and exception, under an exception to the hearsay rule, as being probative of the defendant's state of mind, "at about the time of the . . . rape." The judge allowed it, however, not on the basis that it should be credited for the truth of the matter asserted, but as showing the basis of Dr. Cronin's expert opinion, and so instructed the jury.

1. The Basis of an Expert's Opinion.

The defendant's principal claim of error is that the testimony of the Commonwealth's psychiatrist, Dr. Cronin, contained inadmissible, prejudicial hearsay. See Commonwealth v. Harrison, 342 Mass. 279, 287-288 (1961). It is well settled that while an expert witness may consider hearsay as the basis for his opinion, [Note 8] this does not make the hearsay itself admissible. Put another way, an expert "may not, under the guise of stating the reasons for his opinion, testify to matters in the course of his direct examination unless such matters are admissible under some statutory or other recognized exception to the hearsay rule." Kelly Realty Co. v. Commonwealth, 3 Mass. App. Ct. 54, 55-56 (1975), and cases cited. See Commonwealth v. O'Connor, 7 Mass. App. Ct. 314, 319 (1979). See also Commonwealth v. Tucker, 189 Mass. 457, 479 (1905) (expert witness cannot fortify his opinion by putting in evidence incompetent facts). Were it otherwise, an expert would not merely aid the jury in their understanding of the facts, he would indulge in supplying the facts. This would not only raise all the familiar problems of testing credibility that hearsay presents, it would further tend to enhance the credibility of the underlying facts adduced by giving them the gloss of an expert's apparent acceptance. See Leach & Liacos, Massachusetts Evidence 100-101 (4th ed. 1967).

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For these reasons, it was error to admit a great part of Dr. Cronin's testimony, as outlined above. Contrast Fed.R. Evid. 703. Dr. Cronin's in-court recitation of what Mrs. Kendall told him out-of-court rested for its value upon the credibility of Mrs. Kendall. It was therefore inadmissible hearsay. [Note 9] Cf. Commonwealth v. Bladsa, 362 Mass. 539, 540-541 (1972).

Furthermore, the judge's error in admitting the incompetent allegations was exacerbated by the fact that the statements primarily concerned Dr. Smith's competence and were obviously irrelevant to Dr. Cronin's opinion of the defendant's sanity. The allegations that Dr. Smith entertained a bizarre and unprofessional relationship with the defendant, that Dr. Smith had perverse sexual attitudes, and that Dr. Smith had concocted false insanity defenses at least fifty times, [Note 10] shed no light on the defendant's mental condition when he committed the specific offenses. The introduction of these allegations through Dr. Cronin permitted the Commonwealth to damage the defense by discrediting Dr. Smith with hearsay evidence that was incompetent and unreliable. A defendant's psychiatrist should not be put on trial, nor should a trial be allowed to become merely a war between the experts. See Commonwealth v. Russ, 232 Mass. 58, 80 (1919). Cf. Olson v. Ela, 8 Mass. App. Ct. 165, 169-170 (1979).

2. Rehabilitation of Dr. Smith.

The defendant argues that once Dr. Smith was impeached, he ought to have been allowed to rehabilitate his expert through the testimony of another expert, Dr. Jiminez. See 4 Wigmore, Evidence Section 1100, at 232 (Chadbourn rev. 1972). However, the reliability of expert testimony cannot be made the subject of other expert testimony. Commonwealth

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v. Russ, supra. See Commonwealth v. Millen, 289 Mass. 441, 482-483 (1935). See also Olson v. Ela, supra (no witness can comment on the credibility of another witness). This limitation upon the scope of expert opinion testimony is based on the fundamental proposition that the weighing of evidence and the credibility of witnesses is for the jury. It thus was not error to exclude expert testimony bolstering the professional credibility of Dr. Smith. [Note 11]

Additionally, the defendant contends that apart from rehabilitating Dr. Smith, he had a constitutional right to put in further evidence to explain the method of Dr. Smith's psychiatric treatment to avoid adverse inferences about it, even if the evidence was otherwise inadmissible. Compare Commonwealth v. Williams, 244 Mass. 515, 520 (1923). While Dr. Jiminez was explaining certain methods for treating paranoid schizophrenia, the judge sustained the Commonwealth's objection on the ground that the question called for speculation as to what some psychiatrists think and do. This ruling was error. "Attacks on [the] validity [of an expert's opinion] are open to the defendant . . . through his own witnesses." Commonwealth v. Boyd, 367 Mass. 169, 181 (1975), and authorities cited. The defendant should have been given an opportunity to put evidence before the jury tending to support the legitimacy of the medical treatment he was allegedly receiving. [Note 12] See Commonwealth v. Lundin, 326 Mass. 551, 557-558 (1950). Cf. Commonwealth v. Rodriguez, 378 Mass. 296, 308 (1979). Moreover, this evidence was essential to the defendant's insanity

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claim, coming as it did immediately after his principal expert witness had been impeached. Cf. Commonwealth v. Fatalo, 345 Mass. 85, 88 (1962).

3. Dr. Cronin's Testimony Regarding the Defendant's Refusal to Submit to a Court-ordered Examination.

Dr. Cronin was allowed to testify solely to the fact that the defendant had refused to speak with him and was not allowed to testify to any further conversation between himself and the defendant. The judge immediately instructed the jury that the defendant possessed the privilege of refusing to speak with Dr. Cronin and that they should draw no adverse inference from his having exercised his privilege. The judge's ruling, although earlier in time, is in accordance with the holding in Blaisdell v. Commonwealth, 372 Mass. 753, 769 (1977), and with G. L. c. 233, Section 20B(b). There was no error.

4. The Prosecutor's Closing Argument.

We touch upon this point so as to insure that the new trial is free from problems in this area which might unnecessarily precipitate further appellate review.

During closing argument the prosecutor argued, inter alia, that Mrs. Kendall had testified that the defendant had committed more than fifty crimes for which he had not been arrested or convicted because on each occasion Dr. Smith had secured the defendant's release by concocting false insanity defenses. In fact, Mrs. Kendall did not so testify about the various crimes the defendant had allegedly committed. See S.J.C. Rule 3:22A, PF 13(a), 377 Mass. 927 (effective March 1, 1979). Compare Commonwealth v. Fitzgerald, 376 Mass. 402, 420-421 (1978). The only testimony concerning these allegations came from Dr. Cronin, who told the jury that Mrs. Kendall had made these allegations to him in an out-of-court interview. This testimony was admitted pursuant to the judge's limiting instruction that it was admissible only as the basis for Dr. Cronin's expert opinion and not for the truth of the matters asserted. Accusing the defendant of fifty prior crimes with no proper foundation in the evidence was error. See note 10, supra.

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Accusing Dr. Smith of concocting fifty insanity defenses was equally so. Commonwealth v. Shelley, 374 Mass. 466, 469-470 (1978). See Commonwealth v. Redmond, 370 Mass. 591, 594, 597 (1976); Commonwealth v. Ryan, 8 Mass. App. Ct. 941 (1979). These allegations may well have diverted the jury's attention from deciding the central issue -- whether the defendant was criminally responsible for the alleged crimes -- to weighing the credibility of the defendant's primary expert witness through a haze of highly prejudicial remarks.

Furthermore, the prosecutor subsequently used these allegations to imply that if the jury found the defendant not guilty by reason of insanity, he would be back on the street. This was a misstatement of the law and was also improper. Commonwealth v. Killelea, 370 Mass. 638, 646 (1976).

The prosecutor also argued that Mrs. Kendall had experienced delusions and hallucinations in the past and was therefore competent to recognize these symptoms but had never observed the defendant suffering from them. This argument again went beyond the evidence, as Mrs. Kendall had not testified concerning whether she or the defendant had suffered from delusions or hallucinations. Furthermore, the prosecutor's suggestion that Mrs. Kendall was competent to gauge such behavior in the defendant was improper, as she had not been qualified as an expert witness by the trial judge. See Commonwealth v. Fitzgerald, supra at 416-418, 420-423.

These remarks and others which sought to portray Dr. Smith as a corrupt person whose testimony should not be believed must be avoided upon retrial. The Commonwealth is cautioned to keep to the evidence in its closing argument and to avoid introducing personal invective against the defendant's psychiatrist. [Note 13] See Commonwealth v. Shelley, supra

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See also Commonwealth v. Cepulonis, 7 Mass. App. Ct. 646, 650 (1979); Commonwealth v. Jones, ante 103, 119-120 (1980).

Judgments reversed.

Verdicts set aside.