COMMONWEALTH vs. GILBERT DIAS.

LYNCH, J. The Commonwealth appeals from that part of an order of a Superior Court judge granting the defendant's motion for a new trial on the ground that the Commonwealth failed to comply with an order of the arraignment judge that, pursuant to G. L. c. 123, Section 15 (a) (1986 ed.), the defendant be examined to determine competency to stand trial. The defendant appeals from so much of the order as fails to dismiss the indictment. We conclude that that part of the order declining to dismiss the indictment was correct and that the granting of a new trial was in error.

The defendant was convicted of murder in the second degree in October, 1974. That conviction was affirmed after review under G. L. c. 278, Section 33E. [Note 1] See Commonwealth v. Dias, 373 Mass. 412 (1977). In July, 1980, a first motion for a new trial was denied by the trial judge. In July, 1983, he filed a second motion for a new trial in which he argued that (1) the jury charge on malice was constitutionally deficient since the judge failed to place the burden of proof on the Commonwealth and failed to instruct that malice must be proved beyond a reasonable doubt by proof of the absence of mitigating factors; (2) the judge failed to instruct on voluntary manslaughter and failed properly to charge on involuntary manslaughter and accident; (3) the judge coerced a verdict from the jury and prematurely gave instructions containing "Tuey-like language", [Note 2] and (4) the trial violated the defendant's rights under the Constitutions of the United States and of the Commonwealth because the defendant was tried without having been found competent to stand trial when there existed a reason to doubt his competency. This motion was granted by a different judge in 1985, the trial judge having retired. The judge reasoned that the arraignment judge's order that the defendant be examined to determine competency and criminal responsibility indicated the existence of " `a substantial question of possible doubt'

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as to whether the defendant [was] competent to stand trial," Commonwealth v. Crowley, 393 Mass. 393, 399 (1984), quoting Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967), thus requiring a hearing to satisfy due process. "[O]nce the issue has been raised by the parties or by the judge on his own motion . . . the burden of establishing competency rests upon the Commonwealth." Commonwealth v. Crowley, supra at 400. Because of his view of the case, he did not reach the other grounds argued in support of the motion.

It appears that the judge viewed the arraignment judge's order as creating a substantial question of lack of competence at the time of trial which could be rebutted only by the hearing and findings required by G. L. c. 123, Section 15. We disagree that the facts of this case and the relevant law warrant such a conclusion and, therefore, conclude that the order granting a new trial was an error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

The defendant was arraigned in June, 1974. The reasons for the arraignment judge's order do not appear in the record, but we assume the existence of "a substantial question of possible doubt" at that time. Commonwealth v. Crowley, supra at 399. However, the defendant was tried more than fifteen months later. Nothing in the record of that trial indicated that, in October, 1975, he lacked " `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . a rational as well as factual understanding of the proceedings against him.'" Dusky v. United States, 362 U.S. 402, 402 (1960). At no point did the trial judge's "observations of the defendant's demeanor and behavior at the trial," Commonwealth v. Crowley, supra at 399, lead him to question the defendant's competence. Most significant in the context of the instant case, the defendant's trial counsel raised no issue concerning the defendant's conduct and mental condition. Contrast id. at 394.

We stress again that "the test set out in Dusky is concerned with present abilities. . . . [T]he question is whether [the defendant] was competent to stand trial at the actual time of

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trial" (emphasis added). Commonwealth v. Kostka, 370 Mass. 516, 522 (1976). The apparent failure to hold a hearing contemporaneously with his arraignment is not, in and of itself, a sufficient ground for concluding that a substantial question of doubt as to his competency existed at the time of trial. Cf. Commonwealth v. DiMinico, 375 Mass. 676 (1978). As we said with regard to G. L. c. 123, Section 100A, as amended by St. 1927, c. 59, the predecessor statute to G. L. c. 123, Section 15, "noncompliance with the provisions of [the statute] does not invalidate the trial as matter of law." Commonwealth v. Vallarelli, 273 Mass. 240, 249 (1930).

Although the defendant does not argue that he was convicted of a crime committed without the requisite intent due to lack of criminal responsibility, [Note 3] he does contend, relying on Commonwealth v. Andrade, 389 Mass. 874, 879 (1983), that the failure to comply with the arraignment judge's order was prejudicial in so far as an examination might have revealed evidence of lack of capacity which is now impossible to reconstruct. In this regard, he offers evidence, which was not introduced at his trial, of psychiatric treatment in late 1973.

We agree with the judge that, in the circumstances of this case, there is no showing of prejudice which would require reversal of the conviction. However, we base this conclusion on somewhat different grounds. [Note 4] Even if we assume, as did the judge, that the defendant was deprived of a psychiatric examination to which he was entitled pursuant to both G. L. c. 123, Section 15, and the arraignment judge's order, and assume further that such an examination might have revealed evidence tending to negate criminal intent, it cannot be said that the

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defendant was thereby precluded from raising the issue of criminal responsibility. Unlike the situation in Commonwealth v. Andrade, supra at 881, where violation of the statute possibly deprived the defendant of potentially exculpatory evidence "available for only a short period of time," the defense here was not dependent on a court-ordered psychiatric examination or any other expert testimony to proffer evidence of insanity. "An insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning the defendant's criminal responsibility at the time of the [killing]." Commonwealth v. Laliberty, 373 Mass. 238, 246-247 (1977). See Commonwealth v. Mattson, 377 Mass. 638, 644 (1979); Commonwealth v. Francis, 355 Mass. 108, 111 (1969). In sum, in the circumstances presented here, it cannot reasonably be said that the defendant's choice of defense strategy and failure to raise the issue of criminal responsibility flowed from the Commonwealth's failure to perform an examination pursuant to G. L. c. 123, Section 15 (a).

That part of the order of the Superior Court judge declining to dismiss the indictment is affirmed and that part of the order granting a new trial is reversed. The case is remanded to permit the judge to consider the remaining issues raised in the motion.

So ordered.