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Commonwealth v. Seng4/23/2002
rued by Commonwealth v. Zevitas, 418 Mass. 677 (1994). The defendant specifically claims that the judge's instruction informed the jury that he had exercised his right not to submit to a full psychiatric examination. The Zevitas case involved a prosecution of a vehicular homicide by reckless or negligent operation while under the influence of alcohol. At trial there was no evidence that the defendant had refused a blood alcohol test. But the judge "told the jury, by strong implication at least, that the defendant's blood alcohol level had not been tested, and that the reason no test was conducted was that the defendant refused to submit to such a procedure." Id. at 683. We held that such instructions regarding a defendant's refusal to submit to a breathalyzer test violated the privilege against self-incrimination because that interpretation of the law compelled him to furnish evidence against himself.
Here, the defendant, through his expert witness, attempted to convince the jury that he was taking various medications at Bridgewater because he was mentally ill. On cross-examination, the Commonwealth permissibly required the expert to explain that the hospital personnel decided to medicate the defendant because he would not permit them to conduct a thorough psychiatric examination of him. In such circumstances, where the defendant introduced the subject and made refusal an issue, he may not then assign as error the judge's instructions on the point. Thus, it was not improper for the judge to instruct the jury that they should not use the defendant's lack of participation in a psychiatric examination as bearing on the defendant's guilt or criminal responsibility. Cf. Commonwealth v. Martinez, 431 Mass. 168, 183-184 (2000) (where proper to admit testimony concerning defendant's invocation of right to remain silent, judge should instruct jury as to limited purpose of evidence and that no negative inference should be drawn from defendant's invocation of his rights).
6. Conclusion.
Because the defendant's statements to the police should have been suppressed, the judgments are reversed, the verdicts set aside, and the cases remanded to the Superior Court for a new trial.
So ordered.
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