COMMONWEALTH vs. JOSEPH C. DEMINICO.

ABRAMS, J. The defendant, Joseph C. DeMinico, was convicted by a jury of murder in the first degree and armed robbery. He appeals, alleging error in the judge's refusal to declare a mistrial on the fifth day of trial, because the defendant allegedly then was incompetent to stand trial. He also alleges that his right to testify was violated because his trial counsel did not permit him to testify in his own defense in spite of the defendant's desire to do so. The defendant also requests that we exercise our power under G. L. c. 278, Section 33E (1988 ed.), and order a new trial or reduce the verdict

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to a lesser degree of guilt. After oral argument, we remanded the case to the trial judge for an explicit determination on the record as to whether the defendant was competent on the fifth day of trial and for an evidentiary hearing and findings of fact and a ruling of law on the defendant's allegation that his desire to testify on his own behalf was not honored. On remand, the trial judge determined that the defendant was competent on the fifth day of trial. Following an evidentiary hearing, he concluded that the defendant's right to testify was not violated. The defendant argues that the judge's findings on remand are clearly erroneous. We affirm the convictions. We also conclude that this is not a case in which we should exercise of our power under G. L. c. 278, Section 33E, in favor of the defendant. [Note 1]

We summarize the evidence on which the jury could have based their verdicts. In March, 1985, while recuperating from surgery in which he received a colostomy bag, the defendant lived with his mother, Maria DeMinico. The defendant's brother and nephew also lived in the mother's house. On March 27, 1985, the defendant and his mother quarrelled over one hundred dollars that he previously had given to her and that she had refused to return. Later that day, the defendant decided to kill his mother because she would not return the money and because he did not want to live with her. He wrote a note saying that his mother did not want him staying at the house and that he did not want to live or stay at the house "[o]r live anymore." He put the note in his pocket.

On the morning of March 28, 1985, the defendant's nephew heard the defendant and his mother argue again about the money. The defendant waited until his brother and nephew left for work. The defendant went to the kitchen where his mother was ironing. He reached into his back pocket and retrieved a clothesline rope which he used to walk

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his dog. The defendant tied the rope around his hand, walked up behind his mother, placed the rope around her neck and began strangling her. As she struggled to remove the rope, she fell to the floor in a sitting position. The defendant placed his knee against her back and tightened the rope until she fell unconscious. The defendant taped his mother's mouth, removed a knife from the kitchen drawer, and stabbed her once in the neck and once in the chest. Leaving the knife in the chest, the defendant dragged the body to a hallway, placed the note written the previous day on the body, and covered it with a sheet. The defendant ransacked the house, taking his brother's handgun and jacket, his mother's jewelry, his nephew's jewelry, and $200. The defendant then telephoned his sister and told her that he had killed their mother.

The defendant took a bus to Boston, pawned some of the jewelry, and took an afternoon train to New York City, where he lived for several days in Grand Central Station. On April 3, 1985, in order "to have peace of mind," the defendant surrendered himself to the New York City metropolitan police. After receiving several full recitations of his Miranda rights, the defendant gave a statement detailing the murder of his mother. Despite warnings by his New York attorney and both New York and Massachusetts police officers, the defendant voluntarily made inculpatory statements to Massachusetts police officers accompanying the defendant during the plane ride back to Boston. The Massachusetts officers did not question the defendant about the case.

1. The defendant's competency to stand trial. After arraignment, the defendant was committed to Bridgewater State Hospital (Bridgewater) for observation pursuant to G. L. c. 123, Section 15 (b) (1988 ed.). In July, 1985, Dr. Philip Luber, a psychologist at Bridgewater, reported to the trial judge that the defendant was not competent to stand trial. In February, 1986, Dr. Luber filed a second report recommending that the defendant be found competent to stand trial. On June 9, 1986, the judge declared the defendant competent to stand trial. After two days of pretrial motions,

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the trial commenced on December 10, 1986. On December 15, 1986, when all of the evidence had been introduced and both sides had rested, the defendant's trial counsel [Note 2] argued a motion "for an examination to determine whether the [d]efendant is at present competent to stand trial." On the morning of December 16, 1986, Dr. John Daignault, a court-appointed psychologist, examined the defendant. He concluded that the defendant was experiencing a psychotic episode and, in response to a question from the judge, stated that any possibility that the defendant was attempting to manipulate the court was secondary to the psychosis. He recommended that the defendant be found incompetent. The defendant moved for a mistrial. On December 17, 1986, after a full competency hearing, the judge denied the defendant's motion and ruled that the trial would continue.

In written findings dated December 17, 1986, the judge found that, since October 1, 1986, the defendant had refused to take medication prescribed by medical personnel at Bridgewater and stated "that such refusal ha[d] affected his competency to stand trial. . . . I hold that the defendant has waived his right to be tried while competent. However, I further rule that the defendant was competent during that period of time which was necessary to aid and assist his lawyer in the preparation and trial of his case" (citation omitted). The defendant appealed from his subsequent convictions, claiming it was error to continue the trial.

On remand, the judge made the following findings: [Note 3] "I find that the defendant was competent on December 16, 1986. As noted in my findings dated December 17, 1986, the defendant was an active participant throughout the trial. He frequently

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conferred with his lawyer both orally and in writing, asked intelligent questions of the Court and offered relevant and responsive answers to questions put to him by the Court. He frequently interjected his thoughts throughout the trial which were relevant and responsive to the testimony being received and which indicated an intelligent understanding of what was taking place in the courtroom. Several times, the defendant corrected, or attempted to correct, a factual discrepancy in a witness's testimony. Many of the defendant's astute observations occurred on December 15, 1986, the fourth and final day of testimony. The defendant interjected relevant, perceptive, and responsive observations throughout the argument and charge portion of the trial as well, on December 17, 1986. Throughout the trial, he showed an appreciation of the roles of the court personnel. While the defendant's conduct was disruptive throughout the trial, his behavior was not violent, bizarre or irrational."

The judge stated that "[c]ounsel for [the] [d]efendant concedes that [the] [d]efendant was competent up through December 15, 1986. I observed no change in [the] [d]efendant's demeanor throughout the trial. Both prior to Dr. Daignault's December 16, 1986 examination of [the] [d]efendant, and after that examination, the defendant continued to exhibit a keen understanding of the proceedings against him. Throughout the trial, the defendant took an active role in his own defense. On December 15, 1986, both sides had rested and defense counsel indicated he was prepared to give his final argument."

The judge concluded, saying, "[b]ased on my observations at trial, I concur with Dr. Daignault's observation that the defendant was prone to manipulative conduct. While the defendant's competency may have been failing on December 16, 1986, I find this was a direct result of [the] defendant's refusal to take the prescribed medications. Any deterioration in competency did not reach the level of rendering the defendant incompetent on December 16, 1986."

The defendant argues that "[t]his finding cannot be supported by the record." He claims that the record "furnishes

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no basis for disbelieving expert testimony of Dr. Daignault . . . [who] was unequivocal in testifying that the defendant was incompetent, that he was in the midst of a psychotic episode, and that the possibility of the defendant's malingering was secondary to his psychotic episode." [Note 4] The defendant concludes that "the lower court violated the defendant's constitutional rights by permitting the trial to go forward after the examining psychologist had found him incompetent." We do not agree.

Dr. Daignault's conclusion that the defendant was incompetent did not mandate a finding of incompetency. "Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion . . . by an expert on either side of . . . [an] issue as conclusive. That is no less so in a case where one party has not secured an expert to express a contrary opinion. The law should not, and does not, give the opinions of experts on either side of . . . [an] issue the benefit of conclusiveness, even if there are no contrary opinions introduced at the trial." Commonwealth v. Lamb, 372 Mass. 17, 24 (1977), quoting Commonwealth v. Smith, 357 Mass. 168, 178 (1970).

We agree with the defendant that the doctor's testimony, if disbelieved, would not constitute evidence to the contrary. See Commonwealth v. Eramo, 377 Mass. 912, 913 n.1 (1979). We do not agree with the suggestion in the defendant's supplemental brief that the judge merely disbelieved Dr. Daignault's testimony and therefore found contrary facts

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unsupported by any other evidence. The judge's findings on remand indicate that he based his findings in large part on his own observations of the defendant's demeanor and conduct in the courtroom over eight days, both before and after December 16, 1986, and on the fact that he "observed no change in [the] [d]efendant's demeanor throughout the trial." At the competency hearing, the judge had before him the defendant's records from six hospital admissions connected with unrelated criminal charges and medical conditions dating back to 1955, including three previous, lengthy evaluations at Bridgewater. Those records reveal that at least eleven psychiatrists or psychologists evaluated the defendant between 1955 and 1986 and not one diagnosed the defendant as psychotic. According to the records, six doctors looked for symptoms of psychosis, but found none.

A "defendant's demeanor at trial and response to questioning by the judge . . . [are] relevant to a decision on the merits of the competency issue." Commonwealth v. Hill, 375 Mass. 50, 58 (1978). See Commonwealth v. Vailes, 360 Mass. 522, 525 (1971), Cf. Commonwealth v. Goldman, 12 Mass. App. Ct. 699, 708 (1981) (in deciding whether to conduct a competency hearing, "weight must be afforded to the trial judge's first-hand opportunity to observe the defendant throughout the trial, and his implicit judgment that neither the behavior reported nor [the defendant's] appearance was indicative of incompetence").

The trial transcript before us is replete with instances where the defendant addressed the judge, witnesses, defense counsel, or the prosecutor. The defendant's statements were responsive to the circumstances and support the judge's determination that the defendant had "`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.'" Commonwealth

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v. Vailes, 360 Mass. 522, 524 (1971), quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam). [Note 5]

In addition, prior to trial three psychiatrists and one psychologist recommended that the defendant be found competent to stand trial and all four testified that when they examined the defendant, they had found him competent. The issue of the defendant's competency was raised again on December 15, 1986, the fourth day of the trial. One of the psychiatrists testified on December 15, 1986, that there was "no substantial change" in the defendant's appearance and affect on December 15 from when he saw the defendant in February, 1986. That the defendant's demeanor appeared the same on December 16, 1986, as it was prior to that date, supports the judge's determination that the defendant was competent on December 16, 1986. [Note 6]

2. The defendant's right to testify. On appeal from his convictions, the defendant argues that his decision to testify at his trial was not honored. We remanded the case to the trial judge for an evidentiary hearing, findings of fact, and rulings of law. A hearing was held on June 7, 1990, at which time the trial transcript and various postconviction motions and filings were introduced and the defendant's trial counsel and Dr. Daignault testified. The defendant did not testify.

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The defendant claims that we should reject the lower court's findings because the judge adopted verbatim many of the Commonwealth's proposed findings of fact. In first Pa. Mortgage Trust v. Dorchester Savs. Bank, 395 Mass. 614, 622 & n.12 (1985), we said that, "[e]ven if a judge adopts verbatim findings prepared by prevailing counsel, `[t]hese findings, though not the product of the workings of the . . . judge's mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.' United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 (1964). Although we have criticized this practice, we nevertheless do not reject or set aside such findings if supported by evidence. See Lovett v. Commonwealth, 393 Mass. 444, 447 (1984); Lewis v. Emerson, 391 Mass. 517, 524 (1984); Cormier v. Carty, 381 Mass. 234, 237-238 (1980). See generally 9 C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 2578, at 704-708 (1971)." See Edinburg v. Cavers, 22 Mass. App. Ct. 212, 218-219 (1986). We examine the findings to determine if they are "clearly erroneous" or not supported by evidence in the record. See First Pa. Mortgage Trust, supra. See also Anderson v. Bessemer City, 470 U.S. 564, 572 (1985); Hassine v. Jeffes, 846 F.2d 169, 172-173 n.1 (3d Cir. 1988); Falcon Constr. Co. v. Economy Forms Corp., 805 F.2d 1229, 1232-1233 (5th Cir. 1986); Allied Chem. Int'l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 481 (2d Cir. 1985), cert. denied, 475 U.S. 1099 (1986); Unt v. Aerospace Corp., 765 F.2d 1440, 1444-1445 (9th Cir. 1985); Southern Pac. Communications Co. v. American Tel. & Tel. Co., 740 F.2d 980, 994-995 (D.C. Cir. 1984). In Commonwealth v. Hawkesworth, 405 Mass. 664 (1989), we noted that "the United States Supreme Court has taken the same approach as we have to the verbatim adoption of proposed findings. The court carefully scrutinizes the record, but does not change the standard of review." Id. at 669 n.5, and cases cited. In Hawkesworth, we also said that "the standard for appellate review of facts in both civil and criminal cases is identical,

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and we [saw] no reason to create a special rule in [criminal cases]." See id. at 670.

The defendant claims that he wanted to testify at his trial and that he did not acquiesce in trial counsel's decision to rest without his testifying. He argues that trial counsel disagreed with the defendant and that trial counsel, on his own initiative and in contravention of the defendant's desires, rested without the defendant's taking the stand. The judge found that the record before him, "most particularly the trial transcript and post conviction filings, demonstrates the acquiescence of the defendant in the decision not to testify at trial." The defendant argues that that determination is erroneous. [Note 7] We conclude that the record of the hearing fully supports the judge's conclusion.

The Commonwealth concedes that the trial transcript shows that four times during the presentation of evidence on December 15, 1986, the defendant expressed a desire to testify. The record also shows, however, that later that same day, when the decision to rest without the defendant's testifying was announced in open court in the defendant's presence, he gave no indication that he disagreed with that decision. Indeed, the defense rested twice, first after the close of its own case-in-chief and again after the Commonwealth's rebuttal witness. In neither instance did the defendant state that he wanted to testify or object to his attorney's act in resting. The judge placed some significance on the defendant's silence at both of these points in light of this defendant's pattern of speaking out during the trial. [Note 8] The defendant's

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frequent interjections expressing his thoughts and desires, and his communications directly to the judge rather than through his attorney, indicate that he did not hesitate to voice any objection directly. [Note 9]

Further, on the day defense rested, the defendant was active during the testimony of the Commonwealth's rebuttal witness, interrupting that witness several times with responsive remarks and not once during those interruptions did he express a desire to testify. [Note 10] The judge, who saw the defendant

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throughout the trial, could conclude that the defendant accepted trial counsel's advice that he (the defendant) not testify. Although earlier in the trial the defendant expressed a desire to testify, once the decision to rest without his testifying was announced, the defendant never again stated or in any way indicated that he wanted to testify.

The defendant argues that "[i]t is illogical to have expected [the defendant] to express his disagreement [to the judge] because the attorney had accurately reported to the court the state of the disagreement" during a side-bar conference. [Note 11] He claims that he "relied upon his attorney to report the dispute to the court. . . . Counsel was acting as the defendant's voice at that point, as the trial court had repeatedly explained to the defendant was the proper way for the trial to be conducted." The record shows, however, that from the start of the trial through closing arguments, the defendant rarely, if ever, relied on his attorney to act as his voice.

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Indeed, the defendant interrupted the trial on at least fifty-nine separate occasions. After the side-bar conference, the defendant, of his own initiative, engaged the judge in a colloquy regarding the defendant's medical needs and, again, the defendant expressed no dissatisfaction with his attorney's decision to rest without putting him on the witness stand.

The defendant argues that a judge should conduct a voir dire to guarantee that a defendant has knowingly waived his right to testify, "where the record at trial clearly demonstrates a disagreement between lawyer and client regarding the defendant's decision to testify." He contends that, "[w]hen such a disagreement is apparent, the court should advise the defendant that he has the right to testify, that he has the right not to testify, that the decision should be made after consultation with counsel, that the decision whether to testify is ultimately that of the defendant, and that the court will protect the defendant's decision." We do not agree. There was no error in not conducting such a voir dire. [Note 12] See Commonwealth v. Waters, 399 Mass. 708, 716-717 (1987).

In addition, the defendant was present at the evidentiary hearing in June, 1990, and, thus, he did have an opportunity to engage the judge in a colloquy and to state whether he agreed with trial counsel's decision. The defendant did not testify nor did he submit an affidavit. The defendant argues that his silence may not be used against him. The judge determined: "[The d]efendant's failure to testify or to produce an affidavit in support of his allegation that he was denied his right to testify offers further support for my finding that [the d]efendant acquiesced in the decision not to testify at trial. I find, however, that notwithstanding this factor, the record before me, most particularly the trial transcript and post conviction filings, demonstrates the acquiescence of the defendant

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in the decision not to testify at trial" (emphasis supplied). [Note 13] There was no error in the judge's ruling.

The defendant also is not aided by the testimony at the June hearing of Dr. Daignault, who stated that, during his evaluation of the defendant on December 16, 1986, the defendant said "that he wanted to testify that he was wishing to inform the [c]ourt that he was guilty of his crime, that he wanted to describe the crime in detail, and admit that he had done a terrible thing." The judge found that Dr. Daignault's testimony "was not specific as to the context and time frame of [the d]efendant's alleged desire to testify." In the absence of time frame or context, Dr. Daignault's testimony provides no evidence as to the defendant's state of mind regarding the decision to rest at the time the decision to rest was made.

Trial counsel testified at the hearing that the defendant wanted to testify at trial, that he overrode the defendant's decision, and that the defendant never acquiesced in his advice to rest without placing the defendant on the stand. The judge made no specific findings with respect to the testimony of trial counsel. The defendant argues that the judge "wholly ignores" trial counsel's testimony. The Commonwealth argues that reviewing the record of trial counsel's testimony supports the inference that the trial judge did not credit trial counsel's testimony. We agree. The record reflects that counsel's answers to questions were non-responsive, argumentative, and evasive. Further, the trial judge could conclude that trial counsel's inability to recall courtroom events from 1986

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even when refreshed by review of the transcript discredited counsel's testimony as not credible. "Questions of credibility are, of course, for the trial judge to resolve." Commonwealth v. Bottari, 395 Mass. 777, 780 (1985).

3. General Laws c. 278, Section 33E. Reviewing the entire record, we conclude that there is no reason to exercise our power under G. L. c. 278, Section 33E, in the defendant's favor and order a new trial or enter a verdict of a lesser degree of guilt.

Judgments affirmed.