COMMONWEALTH vs. ARTHUR R. MARTIN.

NOLAN, J. On September 17, 1981, the defendant was convicted of murder in the second degree and of carrying a firearm without legal authority, G. L. c. 269, Section 10 (a). Following the appointment of new counsel, he filed a motion for postconviction relief. This motion was subsequently denied, and the defendant appealed. The Appeals Court reversed the Superior Court judge's denial of the defendant's motion, and ordered that a new trial be held on both indictments. Commonwealth v. Martin, 17 Mass. App. Ct. 717, 726 (1984). This matter comes before us on further appellate review. The primary issue on appeal concerns whether the defendant's contention that he lacked criminal responsibility was prejudicially undermined by violations of G. L. c. 233, Section 23B. See Blaisdell v. Commonwealth, 372 Mass. 753 (1977). For the reasons stated below,

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we reverse the order of the Superior Court and remand this matter for a new trial.

We summarize briefly the facts relative to the issue before us. [Note 1] On February 18, 1981, the Pittsfield police found the victim, John Fontaine, lying dead near his automobile, outside a pizza parlor. Several spent shell casings and an open buck knife were found near the victim. The knife was later identified as the property of the victim.

According to witnesses, the victim drove to the pizza parlor on the night of the shooting, left his automobile, and called out to the defendant. A brief confrontation between the pair ensued, and several gunshots were heard. The defendant then drove away in his automobile. He was arrested the following day in Albany, New York. The handgun used in the shooting was never recovered.

The defendant was indicted for murder in the first degree and for carrying a firearm without legal authority. He subsequently was committed to Bridgewater State Hospital for examinations to determine competency and criminal responsibility. See G. L. c. 123, Section 15 (b). After examining the defendant, Dr. William S. James concluded that the defendant was competent to stand trial but was not criminally responsible for his actions at the time of the shooting due to mental illness. In his written report, Dr. James noted that the defendant refused to discuss the shooting beyond the point when the victim called out to him.

After the defendant indicated that he intended to assert his lack of criminal responsibility as a defense, the Commonwealth sought and was granted an order which required the defendant to submit to a second psychiatric examination by Dr. Marc A. Whaley. This second examination was to be conducted in accordance with the terms of a detailed protective order. See Mass. R. Crim. P. 14(b)(2)(B), 378 Mass. 878 -880 (1979).

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On the basis of his examination, Dr. Whaley was unable to reach a conclusion as to whether the defendant's mental illness rendered him criminally insane at the time of the shooting. Dr. Whaley requested that the prosecutor's office arrange to have the defendant examined by a psychologist. The Commonwealth's motion for a psychological examination of the defendant by Dr. William Rafferty subsequently was allowed. Dr. Whaley received the results of Dr. Rafferty's report. Dr. Whaley then submitted a written report to the court, in which he concluded that, although the defendant was mentally ill, he was able to appreciate the nature of his acts and to conform his conduct to the requirements of the law. This report contained statements by the defendant with respect to his thought processes at the time of the shooting. In part, the report stated that the defendant "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 this report, Dr. Whaley considered whether the defendant was suffering from a mental disease at the time of the alleged crime, and whether the disease had caused his criminal behavior. In analyzing these issues, Dr. Whaley relied, in part, upon what he termed the defendant's "description of his mental state precisely at the time of the shooting." Based upon the defendant's statements, Dr. Whaley concluded that the defendant's behavior at the time of the shooting stemmed from "his reassertion of masculine prowess," rather than a diagnosable mental disease. [Note 2] In an apparent violation of the protective order,

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the prosecutor's office received a complete copy of Dr. Whaley's report shortly after it was filed.

At trial, the Commonwealth presented testimony concerning the details of the shooting, the defendant's arrest in Albany, and his obsessive fear of the victim. The defense offered the testimony of Dr. James, who opined that the defendant's mental illness substantially diminished his ability to appreciate the wrongfulness of his acts. Dr. James was asked whether the defendant was "able to control substantially his acts as a result of his mental illness." Dr. James' response was that "[o]ther than that [the defendant] would have had some difficulty in knowing what was an appropriate act, I believe he was --." Dr. James further testified that, in his opinion, the defendant was not criminally responsible on February 18 for John Fontaine's murder.

The Commonwealth offered the testimony of Dr. Whaley to rebut Dr. James' conclusions. [Note 3] Dr. Whaley described his examination of the defendant and stated that in evaluating the defendant's condition he had considered the results of psychological tests that had been administered to the defendant by a psychologist. Dr. Whaley concluded that at the time of the shooting the defendant suffered from a mental disease, but was able substantially to conform his conduct to the requirements of law. Dr. Whaley asserted that the defendant's mental illness did not cause him to have a substantial incapacity to appreciate the criminality of his acts on the date of the shooting. He testified that in arriving at this conclusion he considered the defendant's statements to him concerning the time period

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immediately prior to and following the shooting. He repeated several of the defendant's statements in the course of his testimony. In his testimony, Dr. Whaley repeated some, but not all, of the statements contained in the written report from which we have quoted above. Because Dr. Whaley's testimony forms the basis for our disposition of this appeal, we set forth pertinent excerpts from the transcript below. [Note 4] The defendant did not object to the prosecutor's questions regarding these statements.

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In his closing argument, the prosecutor noted the difference between the testimony of the two expert witnesses. He emphasized the fact that the defendant did not discuss the shooting with Dr. James. He stated that the defendant "talked to Whaley at great length and in minute detail about everything that he did in the course of that shooting."

Introduction of testimony by Dr. Whaley in violation of G. L. c. 233, Section 23B. The defendant did not object to Dr. Whaley's testimony concerning statements made by the defendant with respect to his mental state at the time prior to and following the shooting. We consider, therefore, whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Foley, 358 Mass. 233, 236 (1970). We concluded that such a risk exists, because Dr. Whaley's testimony included statements that should not have been introduced in evidence in

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view of the prohibitions contained in G. L. c. 233, 23B, [Note 5] as explicated in Blaisdell v. Commonwealth, 372 Mass. 753 (1977).

In Blaisdell, we construed the statutory term "confession" "to include inculpatory statements constituting admissions short of a full acknowledgment of guilt." Id. at 763; see Commonwealth v. Callahan, 386 Mass. 784, 788 (1982). The Commonwealth argues that the statements at issue were not admissions, contending that they did not discuss the defendant's actions or identify the shooter even though they include statements by the defendant that he expected to be either arrested or killed by the victim's friends. We cannot accept the Commonwealth's categorization of these statements.

In Commonwealth v. Callahan, 386 Mass. 784, 787 (1982), a psychiatrist testified that during a court-ordered examination the defendant told him that "he was being thrown, quote, the hell out of the house, was enraged, picked up the gun and shot her, with the thought beforehand that `shoot her, Callahan, and you're . . . you're going to jail for murder.'" We decided that these statements constituted an inadmissible confession of guilt under Section 23B, not only because of the defendant's admission that he shot the victim, but also because they tended to show deliberate premeditation. Id. at 788. In the instant case, Dr. Whaley did not testify that the defendant specifically stated that he shot the victim. However, the statements that he did repeat in front of the jury do constitute the type of inculpatory statements that Section 23B prohibits. In particular, we note the defendant's statement that "he knew that he would get arrested" as tending to show that the defendant shot the victim.

We conclude that the admission of these statements constituted the introduction of testimony proscribed by G. L. c. 233, Section 23B, and Blaisdell. This error cannot be viewed as harmless,

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particularly in light of the prosecutor's reference to Dr. Whaley's testimony in his summation to the jury. See Commonwealth v. Callahan, 386 Mass. 784, 790 (1982).

The judgments of the Superior Court are reversed, the verdicts are set aside, and the defendant must stand for a new trial.

So ordered.