Present: MARSHALL, C.J., GREANEY, COWIN, CORDY, & BOTSFORD, JJ.
Homicide. Practice, Criminal, Capital case, Assistance of counsel, Competency to stand trial, Defendant's competency, Argument by prosecutor. Evidence, Relevancy and materiality, Insanity, Prior misconduct. Insanity. Mental Impairment.
At a murder trial, the defendant's counsel was not ineffective in failing to raise the issue of the defendant's competency before trial and in failing to seek an order forcing the defendant to be examined by a psychiatrist for competency, where the evidence in the case did not raise a substantial question of possible doubt as to the defendant's competency, and where the judge was in a position to observe him at trial and found him competent to stand trial [151-155]; further, trial counsel was not ineffective in heeding the defendant's informed refusal to pursue an insanity defense [155-157], and there was no merit to the claim of ineffective assistance based on failure to present evidence of the impairment of the defendant's mental processes [157-158]; finally, trial counsel was not ineffective in failing to object to the admission of certain evidence .
INDICTMENT found and returned in the Superior Court Department on November 13, 2000.
The case was tried before Elizabeth B. Donovan, J., and motions for a new trial, filed on June 17, 2002, and October 11, 2005, respectively, were heard by her.
Sharon L. Sullivan-Puccini, Special Assistant District Attorney, for the Commonwealth.
CORDY, J. Following a purported revelation from God in early March, 1999, the defendant, Jacques Robidoux, and his wife, Karen, restricted their ten month old son's diet to breast milk and water, and deprived him of solid food. Samuel Robidoux died in late April, 1999, within days of his first birthday, from malnutrition caused by starvation. On June 14, 2002, after a nine-day trial, a jury found Robidoux guilty of murder in the first degree by reason of extreme atrocity or cruelty.
degree, and that he was compelled by his religious beliefs to deprive his son of nutrition. We affirm.
1. Pretrial events. After a jury were empanelled to hear the case, Robidoux moved to dismiss his trial counsel and to proceed pro se. In doing so, he expressed concern over trial counsel's ability to portray him in accordance with his wishes, and indicated a desire to file certain motions that counsel apparently would not. The judge engaged Robidoux in an extended colloquy regarding both the reasons that he felt his attorney would not be able to portray him as he wished to be portrayed, and his understanding of the trial process and the challenges he would face if he represented himself. Ultimately, Robidoux agreed that, although he had represented himself once in the past, he would not be able to match the cross-examination skills of his attorney, especially with the expert witnesses that the Commonwealth would be calling. Robidoux also agreed that, although he had been involved in the preparation of the case with his counsel, he would need time for "mulling over a lot of the information" to prepare himself fully for trial. Finally, Robidoux agreed that if he felt his attorney would portray him as he wished to be portrayed, he would want him to remain as his counsel.
At the conclusion of the colloquy, the judge granted the request of Robidoux's attorney that the case be continued to the next day (without the empanelled jurors being sworn) so that he and Robidoux could confer further on the subject of how he wanted to be portrayed. Later that day Robidoux filed a "pro se" handwritten "motion to change plea," challenging the jurisdiction of the court to hear the case and the district attorney's office to try the case. The next morning Robidoux orally withdrew this motion, and told the judge that he had had an opportunity to speak with his counsel about his desired course of defense and was content with his counsel's continued representation. His motion to proceed pro se was then denied on several grounds, including its untimeliness and its being filed for the ulterior motive of delay.
Church of God, but they left when Roland and Georgette became disenchanted with its organization. A few years later, Roland began a family Bible study group. A neighboring family, the Daneaus, headed by Roger and Vivian Daneau, joined Roland's Bible study group. Roger and Vivian had several children, including Karen, who became active members of the Bible study group. Several group members intermarried in ceremonies performed by Roland, including Karen and Robidoux.
In the early years, the Bible study meetings were relaxed discussions about a variety of subjects. Over time, however, the group became more structured. The group members began to consider Roland an "elder," a role akin to that of pastor or leader. The meetings began with singing, and then Roland would give a sermon or a teaching. Members of the group began to receive "leadings," or inspirations from God to live life in a certain manner. At first, the recipient of a leading would simply share it with the other group members. As time went on, though, the group began to regard leadings as orders from God to be followed as if they came directly from the Apostle Paul. If a member questioned a leading, that member questioned God, and Roland tried to convince that member otherwise. If the member then did not correct sinful behavior, the group "disfellowshipped" the person and stopped any association with that member.
The course of the group changed substantially after Roland became enthralled with the works of author Carol Balizet. He began to instruct the group to pull out of what Balizet regarded as "Satan's seven counterfeit systems," including medicine, education, science, arts and entertainment, the legal system, banking, and mainstream religion. Group members were instructed to withdraw from the medical world. Many group members stopped using banks and relied exclusively on cash. As the group became more isolated from the modern world, its members also became more insular; they all began living together and conversing with only fellow members.
impromptu meeting and discussed how God was taking them someplace else to live. Robidoux claimed that he had received a leading that God wanted them to leave that night for a journey into the wilderness. All of the group members were instructed to leave behind all food and diapers and assets with which they could be bought, including money and jewelry. The full group, including roughly twenty adults and twenty children, then embarked on their journey in six or seven automobiles. Before doing so, they decided not to fill the gasoline tanks of the vehicles because, as with the lack of provisions, God was expected to provide. Robidoux led the way.
The journey was markedly unsuccessful. The group left late on a Wednesday night, and returned on the following Saturday afternoon. Along the way, several vehicles ran out of gasoline. The members slept in their vehicles and used torn up sweatshirts and shoelaces for diapers. The children complained of hunger, and some of them vomited. Roland promised that a feast would be forthcoming, and when no food appeared, group members thought about abandoning the trip. On the third day, Robidoux decided that the trip was not "of God," and that he had been deceived by the leading. He admitted that the trip was a mistake. Later, though, he characterized the trip as a lesson in failure, and a "dry run" for "something bigger that was going to happen."
Samuel was about six or seven weeks old at the time of the group's trip. He had been born, without complication, on April 29, 1998. He was alternatively described by family members as "active" and "robust." At the age of eight months, in January, 1999, Samuel "ate willingly anything that was put in front of him." He was able to sit and had started to walk by grabbing on to furniture.
drink one gallon of almond milk each day. She was also instructed to nurse Samuel for ten minutes on each breast every hour, and to eliminate solid food from his diet.
Four days after the leading, Karen began following the instructions. Samuel was never again fed solid food. Even after the first day of the diet change, Samuel was crying and Robidoux began to question the exact contents of the leading. He began to supplement Karen's breast milk with almond milk, but after only four days Roland instructed him that anything besides breast feeding was contrary to God's will. Meanwhile, Karen's milk supply was diminishing, in part due to her pregnancy and the stress of the situation.
In the following days and weeks, Samuel's restrictive diet began to take a substantial toll on the child. Once healthy and active, he became meek and lethargic; he no longer crawled or even sat up. His bones became visible, his face got thin, his dimple disappeared, and "his eyes appeared sunken." Karen was so distressed by Samuel's appearance that she could no longer bathe him.
As March turned to April, Samuel continued to deteriorate. The skin on his chest changed to a dark color, and at times his eyes would roll up in the back of his head. His cry became hoarse, he ground his teeth, and he could no longer hold himself up.
Robidoux did not take Samuel to a hospital or relax his dietary restrictions. Instead, he called a special meeting of the group in late April to pray for Samuel, in the hope of reversing his dire condition. Early the next morning, Robidoux informed the group that Samuel was dead.
At trial, the Commonwealth's experts included Maine's chief medical examiner, a forensic anthropologist, and a pediatrician with a background in treating malnourished children. The medical examiner testified that after examining Samuel's remains she determined that the cause of his death was severe malnutrition due to starvation. The forensic anthropologist noted significant abnormalities in Samuel's bones, consistent with a pattern of malnutrition. The pediatrician described Samuel's deterioration as consistent with malnourishment.
Robidoux called a pediatric forensic pathologist, who testified that after reviewing the autopsy materials, he was unable to establish a cause of death for Samuel. He further opined that Samuel may have died from any number of diseases, including scurvy that may have set in before his diet was restricted. Robidoux also testified in his defense, admitting to noticing drastic changes in his son after the dietary restrictions began; conceding that Samuel's deteriorating health was "based on his not getting enough nourishment"; and telling the jury that the events from early March through April, 1999, were a "product of mistakes and misunderstandings." Regarding his responsibility for depriving Samuel of sufficient nourishment, Robidoux testified that "[t]he buck stops here."
a second motion for a new trial on October 11, 2005. The claims raised in that motion are virtually identical to the claims raised in the present appeal. The motion was supported by three affidavits.
In his affidavit, Robidoux stated that his trial counsel "discussed with [him] the various ways to try [his] case, including the insanity defense," but that, "[p]rior to [his] trial, there was simply no way that [Robidoux] would talk to a doctor or a psychotherapist." Robidoux also stated that his attorney told him that he had an absolute right to testify in his own defense, and that he exercised that right because he "felt that it was important to tell the jury [his] side of the story," and he "wanted to tell the jury that [he] had misinterpreted the message from God, that [he] was responsible for Samuel's death, and that [he] was extremely remorseful about it."
The other two affidavits were from Ronald S. Ebert, a psychologist, and Reverend Robert Pardon, the director of the New England Institute of Religious Research. Dr. Ebert averred that, although he had never interviewed Robidoux, it was his opinion that Robidoux was unable to appreciate or understand that it was wrong to deprive his son of solid food. Reverend Pardon opined that Roland exercised undue influence over Robidoux at the time of trial, making it virtually impossible for his trial lawyer to present an adequate defense. Reverend Pardon's opinion was based, in part, on four interviews he conducted with Robidoux, before and after trial.
The motion was denied by the trial judge without an evidentiary hearing. In her memorandum of decision, the judge found that there was no evidence that Robidoux was incompetent to stand trial, and her observations during the course of trial were not to the contrary. She further found that, as a competent defendant, Robidoux knowingly chose to reject both an insanity defense and a diminished capacity strategy, as was his right.
that trial counsel inexcusably failed to object to prior bad act testimony and the introduction of Robidoux's postarrest silence.
"In evaluating a defendant's claim of ineffective assistance of counsel in a capital case, we consider whether there was error at trial and, if so, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Gaboriault, 439 Mass. 84 , 90 (2003). See Commonwealth v. Candelario, 446 Mass. 847 , 854 (2006); Commonwealth v. Wright, 411 Mass. 678 , 682 n.1 (1992). We also give trial counsel's tactical decisions due deference, unless those decisions are manifestly unreasonable when made. See Commonwealth v. Candelario, supra; Commonwealth v. Gaboriault, supra.
a. Competency. Appellate counsel argues that Robidoux's trial counsel was ineffective because he failed to raise the issue of competency before trial and failed to seek an order forcing Robidoux to be examined by a psychiatrist for competency. In support of this contention, appellate counsel stresses the oddity of Robidoux's "motion to change plea" filed pro se on the eve of trial. In that motion, Robidoux challenged the jurisdiction of the court and the district attorney's office under "Private Roman Civil Law," and declared independence from the Fourteenth Amendment to the United States Constitution. Appellate counsel also contends that when Robidoux refused to be evaluated by a psychiatrist for the preparation of a potential insanity defense, trial counsel should have immediately requested a competency hearing.
442 Mass. 341 , 350 (2004). Instead, the inquiry is whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Commonwealth v. Crowley, supra at 388, quoting Dusky v. United States, 362 U.S. 402, 402 (1960).
When a defendant alleges, as here, that counsel failed to request a competency hearing or that the judge failed to hold one on her own initiative, we ask, "whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to [a defendant's] competency to stand trial." Commonwealth v. Hill, supra at 54, quoting Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967).
The evidence in this case does not raise a "substantial question of possible doubt" on the issue of competency. Robidoux discussed a potential insanity defense with trial counsel, but elected not to pursue it. Regardless whether that defense was plausible, or the most plausible option, refusal to pursue it does not alone raise a "substantial question of possible doubt" as to competency. See Commonwealth v. Companonio, supra at 50. Just as a defendant is not obligated to pursue an insanity defense, he is not obligated to seek a psychiatric evaluation to support that defense. If we are to protect a defendant's autonomy to make decisions relating to his defense, see Commonwealth v. Federici, 427 Mass. 740 , 744-745 (1998), the exercise of that autonomy cannot alone be grounds to doubt his competency.
Robidoux's decision to file both a motion to proceed pro se and an admittedly odd motion "to change plea" just before the start of trial are, without more, also insufficient to create a "substantial question of possible doubt" as to his competency to stand trial. This is particularly the case where the judge had occasion to examine Robidoux directly about the motivation for those motions at the time they were filed, and was satisfied that they were filed principally for the ulterior purpose of delay.
erred by failing to recognize a substantial question about the defendant's competency during the course of the trial, and by failing (sua sponte) to hold an evidentiary hearing and make findings on that subject. The facts known to the judge about the defendant that led us to our conclusion included a decades-long history of psychological problems (chronic schizophrenia with delusional behavior), multiple mental hospitalizations (extending back thirty-six years) at Bridgewater State Hospital and elsewhere, expert testimony (offered as part of the defense case on insanity) that those mental problems continued to exist up to the present, and testimony (at trial) from the court-appointed psychiatrist that he doubted "whether the defendant was competent to stand trial." Id. at 57. [Note 4] See Commonwealth v. Companonio, supra at 50 & n.9 (distinguishing case from Commonwealth v. Hill, supra).
There are no similar circumstances in this case. Robidoux has no history of mental illness, mental impairment, or hospitalization. All Robidoux presents on the issue of competency is his decision to forgo an insanity defense because it was contrary to how he wished to be portrayed, his decision to forgo a psychiatric examination because it was against his religious beliefs, and the filing of pro se motions that the judge concluded were submitted for the ulterior purpose of delay.
plea that followed was not entirely coherent, but he withdrew the motion the next day. Robidoux later chose to testify (after discussing it several times with trial counsel), deciding to tell his "side of the story," and to express remorse for his "responsib[ility] for Samuel's death." In his testimony, Robidoux accomplished his objective. And, in telling his story, the judge found that Robidoux was "clear, concise and intelligent." Moreover, as the judge found, the record contains no reason to doubt Robidoux's ability to consult rationally with defense counsel and to understand the nature of the proceedings against him. See Commonwealth v. Crowley, 393 Mass. 393 , 398 (1984). Instead, it reflects substantial consultation with trial counsel, with Robidoux playing a central role in determining how he would be portrayed. On this basis, the judge found that Robidoux had been competent to stand trial. This determination is entitled to substantial deference because the judge had the opportunity personally to evaluate Robidoux. Commonwealth v. Brown, 449 Mass. 747 , 759 (2007).
"Because the judge's finding of competency was supported by the evidence [considered in connection with a motion for a new trial], a substantial likelihood of a miscarriage of justice does not exist concerning when and how the competency issue was raised; the ultimate outcome would have been the same." Commonwealth v. Hung Tan Vo, 427 Mass. 464 , 469-470 (1998) (denying claim that counsel was ineffective for not asserting incompetency at time of trial). See Commonwealth v. Serino, 436 Mass. 408 , 416 (2002), quoting Commonwealth v. Satterfield, 373 Mass. 109 , 115 (1977) (holding that in light of evidence supporting trial judge's ruling that defendant was competent to stand trial, "it cannot be fairly stated that 'better work [by counsel] might have accomplished something material for the defense' on this issue"). Robidoux's claim of ineffective assistance of counsel on the matter of competency to stand trial fails for the same reason.
with a doctor or psychotherapist in connection with the preparation of such a defense.
We have stressed the importance of protecting a defendant's autonomy to make decisions relating to his defense. See Commonwealth v. Federici, 427 Mass. 740 , 744 (1998); Commonwealth v. Martin, 425 Mass. 718 , 721 (1997). Consistent with this protection, for example, we acknowledge a defendant's constitutional right to proceed pro se even if doing so harms his defense because "respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice 'with eyes open.' " Commonwealth v. Martin, supra, quoting Commonwealth v. Mott, 2 Mass. App. Ct. 47 , 52 (1974). Similarly, a defendant may refuse to "label himself as 'criminally insane,' " even if that precludes his most effective defense, as long as he is competent and does so with knowledge of the consequences. Commonwealth v. Federici, supra at 744-745. If those two requirements are met, the decision whether to pursue a defense of lack of criminal responsibility ultimately lies with a defendant. See Commonwealth v. Murphy, 442 Mass. 485 , 502-503 (2004).
defendant's informed refusal to pursue an insanity defense. See Commonwealth v. Federici, supra; Commonwealth v. Murphy, supra at 502-503. Accordingly, we do not second guess this decision, and we find no substantial likelihood of a miscarriage of justice.
c. Evidence of diminished capacity. While Massachusetts does not have a defense of "diminished capacity," Commonwealth v. Hardy, 426 Mass. 725 , 729 n.5 (1998), a defendant on trial for murder in the first degree may produce evidence and expert testimony that the impairment of his mental process precluded him from acting with extreme atrocity or cruelty. Commonwealth v. Candelario, 446 Mass. 847 , 856 (2006). See Commonwealth v. Companonio, 445 Mass. 39 , 45 n.7 (2005), quoting Commonwealth v. Gould, 380 Mass. 672 , 673 (1980). Robidoux contends that trial counsel's failure to present such evidence amounts to ineffective assistance of counsel. This contention is unavailing.
the issue of diminished capacity was precisely because Robidoux "wanted nothing to do" with doctors or psychotherapists. As this court held in Commonwealth v. Companonio, supra at 51, trial counsel's decision to forgo pursuit of a "diminished capacity" defense was not unreasonable in light of the fact that it was based on Robidoux's personal choice.
d. Evidentiary issues. To the extent Robidoux contends his trial counsel was ineffective for failing to object to the admission of certain evidence, his claim fails. As discussed below, the evidence was properly admitted. Consequently, trial counsel's decision not to object to its introduction was not error. See Commonwealth v. DelValle, 443 Mass. 782 , 791 (2005).
5. Admission of evidence of the first trip to Maine. Robidoux contends that evidence of the failed trip to Maine on which he led his religious group in June, 1998, was irrelevant prior bad act evidence that should not have been admitted. "It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved . . . for the purposes of showing his bad character or propensity to commit the crime charged . . . ." Commonwealth v. Helfant, 398 Mass. 214 , 224 (1986). Such evidence may be admissible, however, if relevant for some other probative purpose, including to show intent, motive, state of mind, or some other relevant issue at trial. Commonwealth v. DelValle, supra at 790. Additionally, the "prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself," as long as the probative value of the evidence presented is not substantially outweighed by any prejudice to the defendant. Commonwealth v. Marrero, 427 Mass. 65 , 67 (1998), quoting Commonwealth v. Bradshaw, 385 Mass. 244 , 269-270 (1982). Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error. Commonwealth v.
DelValle, supra. See Commonwealth v. Marrero, supra at 67-68.
Evidence of Robidoux's trip to Maine was not introduced to demonstrate that, because he had deprived children of food in the past, he was more likely to have starved the victim as well, or that he was a person of bad "character." Instead, the evidence was introduced to show that Robidoux's decision not to feed Samuel in the days before his death was markedly different from his decision to cut short the Maine trip. In Maine, after the expected provisions from God failed to materialize, Robidoux acknowledged that he had been deceived by a "leading," and that he had made a mistake. As a result, he ended the trip and returned home. By contrast, in the face of mounting evidence that Samuel was dying, Robidoux refused to deviate from the "leading" and alter Samuel's diet. That distinction is relevant to the Commonwealth's proof of third prong malice. If Robidoux knew that a "leading" had gone astray in the past and he had abandoned it on that occasion, he reasonably could have determined that he should have changed course to prevent his emaciated son from dying. He did not.
Additionally, evidence of the Maine trip was used to paint a picture of the events preceding Samuel's death. See Commonwealth v. Bradshaw, supra. As the judge found in denying Robidoux's motion for a new trial, the trip "was part of the movie unfolding during the time leading up to Samuel's death." It illuminated Robidoux's state of mind regarding "leadings," and demonstrated his awareness that they could be misinterpreted. See Commonwealth v. DelValle, supra at 790. The evidence also was relevant on the issue of Robidoux's motive. See Commonwealth v. Carlson, 448 Mass. 501 , 509 (2007) ("Evidence of motive . . . is relevant to the issue of malice or intent"). He characterized the Maine trip as a "dry run" for "something bigger," and ultimately decided that it failed because the group was insufficiently committed to following God. That may have explained why he was so intent on restricting Samuel's diet until he died. The admission of evidence of the group's trip to Maine was not error.
correction. After being advised of his Miranda rights, he agreed to speak with the police and signed a waiver. He spoke with two officers for approximately one hour and twenty minutes, telling the officers about his impression of man's law, and how it was subservient to God's law. He also shared his impression of the police, and discussed owning various items of clothing.
Periodically during the interrogation, Robidoux was asked about his wife and deceased child. He did not answer those questions, at times stating, "I will not talk about my family," and at other times simply staring at the police officers. One of the officers present, Sergeant Robert Horman, testified to this exchange at trial. Because his testimony was not objected to at trial, our review asks whether any error created a substantial likelihood of a miscarriage of justice. G. L. c. 278, § 33E. See Commonwealth v. Brown, 449 Mass. 747 , 763 (2007).
A defendant's decision to remain silent during a custodial interrogation cannot be used against him at trial, because the provision of Miranda warnings involves an implicit assurance that a defendant's exercise of his rights will not penalize him at trial. Commonwealth v. Peixoto, 430 Mass. 654 , 657 (2000), and cases cited. Here, Robidoux's claim that Sergeant Horman's testimony impermissibly infringed on his right to remain silent "fails for the simple reason that the defendant did not exercise his right to remain silent." Commonwealth v. Martino, 412 Mass. 267 , 283 (1992).
Where a defendant is informed of and waives his right not to speak, he still retains the right to cut off the interrogation by reasserting his right to silence. Commonwealth v. James, 427 Mass. 312 , 314 (1998). Commonwealth v. Bradshaw, 385 Mass. 244 , 265 (1982). To terminate questioning, "there must be either an expressed unwillingness to continue or an affirmative request for an attorney." Commonwealth v. James, supra, quoting Commonwealth v. Pennellatore, 392 Mass. 382 , 387 (1984). Robidoux did neither and simply declined to talk about certain subjects.
forty minutes during lengthy interview was not invocation of right to remain silent); Commonwealth v. Senior, 433 Mass. 453 , 463 (2001) (defendant's refusal to answer question concerning where he had been drinking, while answering questions both immediately prior to and subsequent to that question, did not constitute invocation of right previously waived). Robidoux's willingness to share stories and discuss his guiding principles was interspersed with refusals to talk about his family. His unwillingness to answer questions about his family in these circumstances did not manifest an expressed unwillingness to continue with the interview. [Note 7] Where the defendant has not reasserted his right to remain silent, he cannot pick and choose which questions to answer, because "[i]f he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to." Vitali v. United States, 383 F.2d 121, 123 (1st Cir. 1967). See Commonwealth v. Senior, supra at 463-464, quoting Commonwealth v. James, supra (admission of evidence that defendant who waived right to remain silent did not answer certain police questions was proper where right was not reasserted by "expressed unwillingness to continue"). Robidoux's refusal to talk about his family, when compared to his willingness to talk about other topics, was relevant evidence of his state of mind. Cf. Commonwealth v. Martino, supra at 283-284 & n.12 (holding that, given detail of defendant's voluntary statement, his omissions were significant, and could be considered indicative of consciousness of guilt). The admission of Sergeant Horman's testimony was not error.
created a substantial likelihood of a miscarriage of justice. It did not.
In determining whether the challenged statement created a substantial likelihood of a miscarriage of justice, we consider it "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Passley, 428 Mass. 832 , 835 (1999), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224 , 231 (1992). Additionally, the jury are presumed to follow the instructions of the judge.
Commonwealth v. Degro, 432 Mass. 319 , 328 (2000). It is clear that the prosecutor's statement, taken in context with the judge's substantial and proper instructions, was harmless error. See id. "We view it as highly unlikely that the absence of the improper statement would have made a difference." Id. at 329.
8. Review under G. L. c. 278, § 33E. Robidoux asks this court to exercise its plenary power under G. L. c. 278, § 33E, and reduce the verdict of murder in the first degree or grant a new trial because he lacked criminal responsibility. After a complete review of the record, we decline to do so.
In Commonwealth v. McHoul, 352 Mass. 544 , 546-547 (1967), we adopted the Model Penal Code's formulation for the insanity defense: "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his con duct to the requirements of law." Id., quoting Model Penal Code § 4.01 (Proposed Official Draft 1962). Although Robidoux held unique religious beliefs, that alone is not sufficient to demonstrate a mental defect. See United States v. Ballard, 322 U.S. 78, 86 (1944) ("Men may believe what they cannot prove. . . . Religious experiences which are as real as life to some may be incomprehensible to others"). There is no evidence from lay persons or otherwise that Robidoux had a prior mental illness, or was acting on the basis of anything other than a sincerely held religious belief, and the "bizarre or inexplicable nature of a crime alone does not provide a foundation for an insanity defense." Commonwealth v. Johnson, 422 Mass. 420 , 426 (1996).
steps Robidoux took after Samuel's death are perhaps even more illustrative of his understanding of the wrongfulness of his conduct. See Commonwealth v. Boateng, 438 Mass. 498 , 508 (2003) (jury may consider consciousness of guilt evidence when determining whether defendant could appreciate wrongfulness of conduct). He placed his son's remains in a homemade casket, which he then stored in the bulkhead of his sister's house for roughly four and one-half months. Later Robidoux traveled to a remote State park in Maine. With three family members, he hiked seven hours on the most primitive trail in the park, and then buried Samuel's remains more than 300 feet off the trail in dense forest. The burial site was so well concealed that canine searches and helicopter flyovers deploying infrared searching technology failed to uncover it.
Additionally, it is apparent that Robidoux had the ability to conform his conduct to the requirements of the law. He had disregarded leadings in the past, and altered course when the leadings appeared to guide him astray. When faced with Samuel's dire condition, he could have put the leading on hold. As Robidoux stated at trial, "No one can make me do anything." Regarding his responsibility for Samuel's death, he testified that "[t]he buck stops here." On this evidence, we cannot say that Robidoux lacked criminal responsibility.
[Note 1] The group also carried a second casket containing the remains of Jeremiah Corneau, the stillborn son of David Corneau and Rebecca Robidoux, another of Robidoux's sisters.
[Note 2] Despite an extensive police search of the area, including canine searches and helicopter flyovers using infrared sensors, Samuel's remains were not found until David Corneau led investigators to the grave site one year later.
[Note 3] In his first motion for a new trial, Robidoux asserted the following grounds of prejudicial error: the judge's response to a jury question regarding reasonable doubt lessened the Commonwealth's burden; the judge failed properly to charge on third prong malice; the charge on cause of death was ambiguous; the prosecutor exceeded the bounds of proper final argument; the verdict was against the weight of the evidence; and Robidoux was impermissibly deprived of a public trial. The motion was denied, and its claims are not pressed on appeal. Based on our review of the entire record of the case pursuant to G. L. c. 278, § 33E, we perceive no substantial likelihood of a miscarriage of justice with respect to these issues.
[Note 4] The court in Commonwealth v. Hill, 375 Mass. 50 , 58 (1978), noted that this evidence was so substantial at trial that the judge should have held a competency hearing even though there had been a competency examination (fifteen months prior to the trial) that found the defendant competent in spite of his mental illness, and even though the defendant's conduct at trial was apparently not unusual.
[Note 5] Robidoux was not advised of the consequences of rejecting an insanity defense by the judge, as were the defendants in Commonwealth v. Murphy, 442 Mass. 455 , 502-503 (2004), and Commonwealth v. Federici, 427 Mass. 740 , 744- 745 (1998). Given the circumstances of this case, Robidoux's choice was not any less informed. As the judge found in deciding the second motion for a new trial, Robidoux "made an intelligent choice."
[Note 6] Trial counsel also requested (unsuccessfully) a jury instruction that would highlight Robidoux's unique state of mind and susceptibility to influence by his religious group. Regarding the objective element of third prong malice instruction, trial counsel asked that the jury be instructed to determine malice based on whether "a reasonable person with what you find as [Robidoux's] state of mind and life experience would have recognized" that his conduct created a plain and strong likelihood that death would result. By contrast, the objective part of the model instruction focuses on what a reasonable person would have recognized, without the qualifiers suggested by trial counsel. Model Jury Instructions on Homicide 12 (1999). That the model instruction was given cannot be considered error on behalf of trial counsel. See Commonwealth v. Whitman, 430 Mass. 746 , 757 (2000).
[Note 7] A defendant's refusal to answer certain questions does not give rise to an obligation on the part of the police to ask a defendant whether he would like to reassert his right to silence. Commonwealth v. Roberts, 407 Mass. 731 , 734 (1990). A defendant must make an express reassertion himself, and here Robidoux did not. See id.
[Note 8] Malice is an element of murder. It may be proved by evidence establishing any one of three facts beyond a reasonable doubt: if, without justification or excuse, (1) the defendant intended to kill the victim (first prong), or (2) the defendant intended to do the victim grievous bodily harm (second prong), or (3) in the circumstances known to the defendant, a reasonably prudent person would have known that, according to common experience, there was a plain and strong likelihood that death would follow the contemplated act (third prong). Commonwealth v. Sneed, 413 Mass. 387 , 388 n.1 (1992).
Third prong malice in cases of murder in the first degree recognizes that, although the defendant may lack the specific intent to kill, some conduct shows a depraved hardness of heart sufficient to justify a conviction of murder. "When deliberating as to the third prong of malice, a jury must consider (1) the nature and extent of the defendant's knowledge of the circumstances at the time he acted (subjective component); and (2) whether, in the circumstances known by the defendant, a reasonably prudent person would recognize that the defendant's conduct would create a plain and strong likelihood of death (objective component)." Commonwealth v. Mello, 420 Mass. 375 , 389-390 (1995).
[Note 9] The judge instructed the jury that, "under this third meaning of malice, you must determine whether based on what the defendant actually knew at the time he acted, a reasonable person would have recognized that his conduct created a plain and strong likelihood that death would result. In determining whether the Commonwealth has proved this third meaning of malice, you must consider the actual knowledge of the circumstances at the time he acted" (emphasis added). See Model Jury Instructions on Homicide 12 (1999).


text:
1. William1 Pendergast was born in Gorman, Cty. Kilkenny, Ireland. He married Margaret Kelly 1816. She was born in Thomas Town, Cty. Kilkenny, Ireland, and died Jan 1879.
+ 2 i. Catherine2 Pendergast, born in Ireland.
+ 3 ii. Mary Pendergast, born 1818 in Ireland; died 1910 in Red Bank, New Brunswick, Canada.
+ 4 iii. James Pendergast, born 1820 in Ireland; died 17 Jul 1901 in Hope River, PEI.
+ 5 iv. Margaret Pendergast, born 1829 in Hope River, PEI; died 20 Jan 1904 in Irishtown, PEI.
+ 6 v. Ann Pendergast, born 07 Jun 1831 in Hope River, PEI.
+ 7 vi. Ellen Pendergast, born 04 Oct 1833 in Hope River, PEI; died 04 Oct 1937 in Miminegash, PEI.
8 vii. Elizabeth Pendergast, born 1837 in Hope River, PEI.
9 viii. Theresa Pendergast, born 1839 in Hope River, PEI.
2. Catherine2 Pendergast (William1) was born in Ireland. She married James Ready 28 Nov 1839 in Park Corner, PEI, son of Michael Ready and Mary Duggan. He was born 1821 in Irishtown, PEI.
+ 10 i. Michael J.3 Ready, born 27 Oct 1840 in Irishtown, PEI.
+ 11 ii. Margaret Ready, born 15 Sep 1842 in Irishtown, PEI.
+ 12 iii. Mary Ann Ready, born 1844 in Irishtown, PEI.
13 iv. William Ready, born 1846 in Irishtown, PEI; died 1846 in Irishtown, PEI.
14 v. Jane Ready, born 1847 in Irishtown, PEI.
15 vi. Elizabeth Ready, born 1849 in Irishtown, PEI.
+ 16 vii. Catherine Ready, born 1851 in Irishtown, PEI.
17 viii. Theresa Ready, born 1853 in Irishtown, PEI. She married ? MacInnis; born in Peabody, Maine.
+ 18 ix. James A. Ready, born 1855 in Irishtown, PEI; died 1928 in Lowell, Mass..
19 x. Richard Ready, born 1857 in Irishtown, PEI.
20 xi. Hanna Ready, born 1859 in Irishtown, PEI. She married Jim Sherry; born in Peabody, Maine.
21 xii. William Ready, born 1861 in Irishtown, PEI.
+ 22 xiii. Emily Ready, born 1863 in Irishtown, PEI.
+ 23 xiv. Louise Ready, born 1865 in Irishtown, PEI.
24 xv. Annette Ready, born 1867 in Irishtown, PEI. She married William Tucker; born in Peabody, Maine.
3. Mary2 Pendergast (William1) was born 1818 in Ireland, and died 1910 in Red Bank, New Brunswick, Canada. She married Nicholas POWER(S) in Prince Edward Island, Canada. He was born 1816 in Kerrytown/Waterford, Ireland, and died 02 Nov 1868 in Red Bank, N.B..
25 i. William3 POWER(S), born 1843 in Prince Edward Is, Canada; died Aft. 1871.
+ 26 ii. John POWER(S), born 12 Feb 1844 in Charlottetown, Prince Edward Is, Canada; died 31 Aug 1927 in LaMoure, LaMoure, North Dakota.
+ 27 iii. David POWER(S), born Abt. 1846 in Lot 20, PEI; died 14 Feb 1913.
+ 28 iv. Mary Ann POWER(S), born 1850 in Prince Edward Is, Canada.
29 v. Margaret POWER(S), born 1852 in Prince Edward Is, Canada. She married John HAYES.
30 vi. James POWER(S), born 1854 in Prince Edward Is, Canada.
+ 31 vii. Thomas POWER(S), born 1857 in Rustico, Prince Edward Is, Canada; died 01 Jun 1910 in St. Mary Cemetary, Mora, MN.
32 viii. Edward POWER(S), born 1859 in Prince Edward Is, Canada.
+ 33 ix. Eleanor POWER(S), born 1861 in Prince Edward Is, Canada.
34 x. Patrick POWER(S), born 1864 in Prince Edward Is, Canada.
4. James2 Pendergast (William1) was born 1820 in Ireland, and died 17 Jul 1901 in Hope River, PEI. He married (1) Mary Ready, daughter of Michael Ready and Mary Duggan. She was born in Irishtown, PEI, and died Dec 1902 in Hope River, PEI. He married (2) Ann Bassett 1846, daughter of Edward Bassett and Margaret Murphy. She was born in Albany, PEI.
+ 35 i. Margaret3 Pendergast, born 1847 in Hope River, PEI.
36 ii. Catherine Pendergast, born 1849 in Hope River, PEI; died 20 Nov 1867 in Hope River, PEI.
+ 37 iii. William Pendergast, born 15 May 1850 in Hope River, PEI.
+ 38 iv. Edward Pendergast, born 1853 in Hope River, PEI; died 23 Mar 1936 in Malpeque Rd., PEI.
39 v. Thomas Pendergast, born 1854 in Hope River, PEI; died 27 Mar 1931 in Hope River, PEI.
40 vi. Mary Ellen Pendergast, born 1855 in Hope River, PEI; died 08 Jul 1906 in Hope River, PEI.
5. Margaret2 Pendergast (William1) was born 1829 in Hope River, PEI, and died 20 Jan 1904 in Irishtown, PEI. She married Patrick Ready, son of Michael Ready and Mary Duggan. He was born 1827 in Irishtown, PEI, and died 18 Feb 1911 in Indian River, PEI.
+ 41 i. Michael A.3 Ready, born 06 Feb 1856; died 06 May 1901 in Irishtown, PEI.
42 ii. William Ready, born 15 May 1859.
+ 43 iii. Mary Eliza Ready, born 1863.
44 iv. Daniel B. Ready, born 1865; died 17 Sep 1898 in Indian River, PEI.
45 v. Annie Jane Ready, born 1867. She married William May.
6. Ann2 Pendergast (William1) was born 07 Jun 1831 in Hope River, PEI. She married Bernard Cosgrove. He was born 1829.
46 i. Thomas3 Cosgrove, born 1858.
47 ii. Bridget Cosgrove, born 01 Apr 1859.
48 iii. Joseph Cosgrove, born 1862.
49 iv. Francis Cosgrove, born 1863.
50 v. Mary Cosgrove, born 1867.
51 vi. Maggie Cosgrove, born 1870.
52 vii. William Cosgrove, born 1871.
53 viii. James Cosgrove, born 1873.
7. Ellen2 Pendergast (William1) was born 04 Oct 1833 in Hope River, PEI, and died 04 Oct 1937 in Miminegash, PEI. She married William Callaghan 1862, son of Patrick Callaghan and Maria Pepperall. He was born 24 Jun 1832 in Charlottetown, PEI.
+ 54 i. William Patrick3 Callaghan, born 21 May 1863 in Miminegash, PEI; died 22 Dec 1945 in Summerside, PEI.
+ 55 ii. James Callaghan, born 08 Mar 1865 in Miminegash, PEI; died 1954.
+ 56 iii. Peter Callaghan, born 24 Jan 1868 in Tignish, PEI; died 14 Dec 1957.
57 iv. Mary Ann Callaghan, born 1870 in Miminegash, PEI. She married Edward Clohossey.
58 v. Ann Jane Callaghan, born 1872 in Miminegash, PEI. She married James Shea; born in Waterford, PEI.
59 vi. John Andrew Callaghan, born 03 Feb 1874 in Miminegash, PEI; died 1942 in Alberton, PEI. He married (1) Bernice Wallace; born 1879; died 1934 in Alberton, PEI. He married (2) Marie MacLellan Aft. 1934.
60 vii. Alice Callaghan, born 1878 in Miminegash, PEI. She married Merritt Roberts; born in Lewiston, Maine.
10. Michael J.3 Ready (Catherine2 Pendergast, William1) was born 27 Oct 1840 in Irishtown, PEI. He married Florence Josephine MacKinnon 28 Jun 1887 in Rustico, PEI, daughter of Joseph McKinnon and Abigail Smith. She was born in Brackley Point, PEI.
61 i. James Francis4 Ready, born 1890 in Irishtown, PEI; died 1928 in Indian River, PEI. He married Elizabeth MacKenzie; born 08 Mar 1894 in Baltic, PEI; died 1935.
62 ii. Bernard Ready, born in Irishtown, PEI; died 1927 in Indian River, PEI.
63 iii. William Ready, born in Irishtown, PEI. He married Margaret A. Connors 1925 in Charlottetown, PEI; born 01 Aug 1894 in Tracadie, PEI.
64 iv. Frederick L. Ready, born 1897 in Irishtown, PEI; died 1978 in Indian River, PEI.
65 v. Mary Lillian Ready, born 1901 in Irishtown, PEI; died 1976 in Indian River, PEI. She married William Basil Hickey; born 1893 in Indian River, PEI; died in Indian River, PEI.
66 vi. Henry Ready, born in Irishtown, PEI; died 1923 in Indian River, PEI.
11. Margaret3 Ready (Catherine2 Pendergast, William1) was born 15 Sep 1842 in Irishtown, PEI. She married Frank Murphy. He was born in USA.
67 i. Nellie4 Murphy, born 1867.
12. Mary Ann3 Ready (Catherine2 Pendergast, William1) was born 1844 in Irishtown, PEI. She married John Connick. He was born 1849 in Kensington, PEI, and died 08 Apr 1910 in Indian River, PEI.
69 i. John4 Connick, born in Kensington, PEI.
70 ii. William Connick, born in Kensington, PEI; died 1970.
71 iii. James Edward Connick, born 1873.
72 iv. Ida Connick, born 1874 in Kensington, PEI; died 1941. She married ? Phalen.
73 v. Jane Connick, born 1875 in Kensington, PEI.
74 vi. Catherine Connick, born 1877 in Kensington, PEI. She married Patrick Murphy.
75 vii. Martha Connick, born 1880 in Kensington, PEI; died 1944.
76 viii. Emma Connick, born 1881 in Kensington, PEI.
16. Catherine3 Ready (Catherine2 Pendergast, William1) was born 1851 in Irishtown, PEI.
77 i. Rosella4 Ready. She married (1) Henry Peters. She married (2) Lambert Gillis; born in Miscouche, PEI.
18. James A.3 Ready (Catherine2 Pendergast, William1) was born 1855 in Irishtown, PEI, and died 1928 in Lowell, Mass.. He married Margaret Anne Creamer 18 Jun 1880, daughter of Bernard Creamer and Margaret Malone. She was born 29 Jan 1853 in Kelly's Cross, PEI, and died 1925 in South Melville, PEI.
78 i. Mary Eva4 Ready, born 14 Jun 1883 in Lowell, Mass.; died 19 Apr 1960 in Kelly's Cross, PEI. She married James Domenic Flood 26 Jun 1917 in Kelly's Cross, PEI; born 14 Feb 1879 in Maplewood, PEI; died 05 Jun 1959 in Kelly's Cross, PEI.
79 ii. Marion Ready, born in Lowell, Mass.. She married Tom Dowd.
80 iii. Margaret Ready, born in Lowell, Mass..
81 iv. Frank Ready, born in Lowell, Mass..
82 v. Ernest Ready, born in Lowell, Mass..
22. Emily3 Ready (Catherine2 Pendergast, William1) was born 1863 in Irishtown, PEI. She married Henry Moynagh. He was born in Emerald, PEI.
83 i. Beatrice4 Moynagh, born in Sydney, N.S.. She married Wm. McInnis.
84 ii. Bernardine Moynagh, born in Sydney, N.S.. She married Jack McPhee.
23. Louise3 Ready (Catherine2 Pendergast, William1) was born 1865 in Irishtown, PEI. She married John Nolan 1899. He was born in Woburn, Mass..
85 i. Marguerite4 Nolan, born 1900 in Woburn, Mass.. She married Albert Sumner; born 1904 in Maine; died 1953.
86 ii. Louise Nolan, born 1899 in Woburn, Mass.; died 1903 in Woburn, Mass..
26. John3 POWER(S) (Mary2 Pendergast, William1) was born 12 Feb 1844 in Charlottetown, Prince Edward Is, Canada, and died 31 Aug 1927 in LaMoure, LaMoure, North Dakota. He married Hanna Jane FORAN 02 Sep 1872 in St. Bridget's Chur, Northumberland-N, N.B.-Canada. She was born 17 Jan 1847 in New Castle, New Brunswick, Canada, and died 21 Dec 1914 in LaMoure, LaMoure, North Dakota.
87 i. Loretta May4 POWER(S).
88 ii. George Edward POWER(S), born 10 Aug 1873 in New Castle, New Brunswick, Canada; died in Roundup, Montana. He married Cora CRUM.
89 iii. Will James POWER(S), born 08 Jul 1876 in Red Bank, N.B.; died in Winnipeg, Manitoba, Canada. He married Ida Theresa THOMPSON; born 14 Aug 1883 in LaMoure, LaMoure, N.D.; died 07 Jun 1973 in Calgary, Alberta.
90 iv. Margaret Ellen POWER(S), born 19 Apr 1878 in LaMoure, LaMoure, North Dakota; died Nov 1946 in LaMoure, LaMoure, North Dakota. She married James KALE; born 10 Aug 1858; died 12 Apr 1933.
91 v. John(Jack) Vincent POWER(S), born 23 Jan 1880; died in Portland, Oregon.
92 vi. Michael Albert POWER(S), born 18 Aug 1881 in LaMoure, LaMoure, North Dakota; died 08 Jan 1970 in Spokane, Washington. He married Pearl MCDERMOTT.
93 vii. James David POWER(S), born 11 Aug 1883 in LaMoure, LaMoure, North Dakota; died 1923 in Winnipeg, Manitoba, Canada. He married Anna CONBOY.
94 viii. Hannah Agnes POWER(S), born 11 Jun 1885. She married Milton PRYOR.
95 ix. Edward POWER(S), born 05 Jul 1886 in LaMoure, LaMoure, North Dakota; died Bef. 1970 in Troutdale, Oregon. He married Helen TORGESON.
96 x. Belle POWER(S), born 09 May 1889 in LaMoure, North Dakota; died 10 Dec 1975 in LaMoure, North Dakota. She married Lois Wellington THOMAS 15 Oct 1908 in Oakes, Dickey, North Dakota; born 12 Mar 1881 in Gowrie, Iowa; died 04 May 1956 in Oakes, Dickey, ND.
97 xi. Ellen M. POWER(S), born 12 Dec 1890 in LaMoure, LaMoure, North Dakota; died 09 Jun 1958 in LaMoure, LaMoure, North Dakota. She married Andrew REMICK 28 Apr 1910 in Oakes, Dickey, North Dakota; died 1977 in LaMoure, LaMoure, North Dakota.
27. David3 POWER(S) (Mary2 Pendergast, William1) was born Abt. 1846 in Lot 20, PEI, and died 14 Feb 1913. He married (1) Margaret LAWLOR. She was born Abt. 1850, and died 1880. He married (2) Mary Ann O'Shea 27 Sep 1886 in St. Thomas Church, Red Bank, NB. She was born Abt. 1864, and died 1897.
98 i. Margaret4 POWER(S), born 17 Feb 1888.
99 ii. Laura Catherine POWER(S), born 28 Jan 1890.
100 iii. Elizabeth Theresa (Nellie) POWER(S), born 01 Jun 1894; died 12 May 1959 in Mount St. Joseph, Chatham, NB. She married Michael Joseph HYLAND 23 Jun 1926 in St. Thomas Church, Red Bank, NB.
101 iv. Edward POWER(S). He married Mary MCKENZIE 21 Aug 1921 in St. Thomas Church, Red Bank, NB; born 21 Mar 1889.
102 v. Ann Gertrude POWER(S), born 17 Jul 1897.
28. Mary Ann3 POWER(S) (Mary2 Pendergast, William1) was born 1850 in Prince Edward Is, Canada. She married George COLPAUGH.
103 i. Laura4 COLPAUGH. She married Fred SCHUCK; died in Farabault, MN.
31. Thomas3 POWER(S) (Mary2 Pendergast, William1) was born 1857 in Rustico, Prince Edward Is, Canada, and died 01 Jun 1910 in St. Mary Cemetary, Mora, MN. He married Charlotte KEENAN 19 Jul 1893 in Chatham, New Brunswick, Canada.
105 i. Francis Patrick4 POWER(S), born 04 May 1894 in Stillwater, Minnesota; died 10 Jan 1974 in Mora, Minnesota. He married Delia GAULET in Coleraine, Minnesota.
106 ii. Cecilia Agnes POWER(S), born 21 Jan 1896 in Stillwater, Minnesota; died 03 Jul 1972 in Minneapolis, Minnesota. She married Albine(?) MARQUART 11 Nov 1922 in Mora, Minnesota.
107 iii. Nicholas James POWER(S), born 25 Feb 1898 in Mora, Minnesota; died 22 Mar 1976 in Cayucos, California. He married Mae MILLER 16 Aug 1934 in Minneapolis, Minnesota.
108 iv. Mary Regina POWER(S), born 05 Dec 1899 in Mora, Minnesota. She married Charles M. WOODBECK 05 Sep 1933 in St. Cloud, Minnesota.
109 v. Edward Thomas POWER(S), born 13 Jul 1902 in Mora, Minnesota; died 06 Nov 1930 in Minneapolis, Minnesota.
110 vi. Archie John POWER(S), born 28 Jun 1904 in Mora, Minnesota; died 05 Nov 1938 in Minneapolis, Minnesota.
33. Eleanor3 POWER(S) (Mary2 Pendergast, William1) was born 1861 in Prince Edward Is, Canada. She married Alex BARNES.
35. Margaret3 Pendergast (James2, William1) was born 1847 in Hope River, PEI. She married Michael Sweeney.
112 i. Mary Magdalene4 Sweeney.
37. William3 Pendergast (James2, William1) was born 15 May 1850 in Hope River, PEI. He married Laura Landrigan. She was born Sep 1872.
113 i. Marion O'Leary4 Pendergast, born Apr 1917. She married Arthur Fleming; born 15 Feb 1908 in Stanley Bridge, PEI; died 26 Jun 1933.
38. Edward3 Pendergast (James2, William1) was born 1853 in Hope River, PEI, and died 23 Mar 1936 in Malpeque Rd., PEI. He married Ellen Ledwell, daughter of Thomas Ledwell and Johanna Walsh. She was born 1851 in Little Harbour, Placentia Bay, Nfld., and died 31 Jan 1922 in Indian River, PEI.
114 i. James Thomas4 Pendergast, born 08 Sep 1879 in Hope River, PEI; died 25 Jan 1975 in Summerside, PEI. He married Gertrude Frances Cullen 05 Jul 1924 in St. Dunstans, Charlottetown, PEI; born 22 Apr 1900 in Hope River, PEI; died 07 Apr 1987 in Kensington, PEI.
115 ii. William Ledwell Pendergast, born 1881; died 1957. He married Margaret T. Kelly 17 Jan 1910 in Dorchester, Mass.; born 1881; died 1977.
116 iii. Anna Pendergast, born 1883; died 1946 in Indian River, PEI. She married Andrew C. O'Keefe; born 1883; died 18 Nov 1935 in Indian River, PEI.
117 iv. Austin John Pendergast, born 1885; died 10 Jun 1909.
118 v. Lillian Ellen Pendergast, born 1889; died 1916.
41. Michael A.3 Ready (Margaret2 Pendergast, William1) was born 06 Feb 1856, and died 06 May 1901 in Irishtown, PEI. He married Bridget Brennan 01 Mar 1881 in Indian River, PEI, daughter of John Brennan and Elizabeth Delaney. She was born 13 May 1858 in Darnley, PEI, and died 12 Sep 1910 in Indian River, PEI.
119 i. Mary Elizabeth4 Ready, born 25 Dec 1881 in Darnley, PEI. She married Albert John Hottelmann 1902; died 01 Dec 1908 in South Boston, Mass..
120 ii. William Austin Ready, born 14 Sep 1883 in Irishtown, PEI. He married Mary Catherine MacLellan 28 Apr 1908 in Indian River, PEI; born 08 Jul 1884 in Indian River, PEI; died 04 Jan 1938 in Boston, Mass..
121 iii. Margaret Julia Ready, born 10 Mar 1887 in Irishtown, PEI.
122 iv. Cecelia Ready, born 11 May 1889 in Irishtown, PEI. She married (1) Frank Mullally; born in Souris East, PEI. She married (2) George Evans; born in Brookline, Mass..
123 v. Clara Ellen Ready, born 29 Apr 1892 in Irishtown, PEI.
124 vi. Emma Anne Ready, born 11 Jun 1895 in Irishtown, PEI. She married Michael Brennan 1913 in Indian River, PEI.
43. Mary Eliza3 Ready (Margaret2 Pendergast, William1) was born 1863. She married William Corr. He was born in Saint John, N.B..
125 i. Margaret4 Corr, born in Brookline, Mass.. She married David R. Campbell; born in Irishtown, PEI.
126 ii. Mildred Corr, born in Brookline, Mass.. She married Fred Murphy.
54. William Patrick3 Callaghan (Ellen2 Pendergast, William1) was born 21 May 1863 in Miminegash, PEI, and died 22 Dec 1945 in Summerside, PEI. He married (1) Penelope MacDonald. She died 05 Jul 1978 in Summerside, PEI. He married (2) Agatha Gertrude Doyle 22 Oct 1889 in Lot 7, PEI. She was born 07 May 1868 in Kinkora, PEI, and died 18 Aug 1928 in St. Louis, PEI.
127 i. Mary Martha Maude4 Callaghan, born 17 Sep 1890 in Miminegash, PEI; died 16 Apr 1985 in Framingham, Mass.. She married Fred Haines; born in Chicago, Ill..
128 ii. Ellen Josephine Callaghan, born 09 Nov 1891 in Miminegash, PEI; died 23 Apr 1987 in Ridgefield, Conn..
129 iii. Peter Russell Callaghan, born 26 Apr 1893 in Miminegash, PEI; died 28 Oct 1968 in Summerside, PEI. He married Mary Ellen McCabe 02 Jan 1929 in Wellington, PEI; born 01 Oct 1895 in Kinkora, PEI; died 01 Oct 1975 in Summerside, PEI.
130 iv. William Rayburn Callaghan, born 06 Mar 1895 in Miminegash, PEI; died 03 Jan 1977 in Geneva, Ill.. He married Margaret Stephens 1929 in Joliet, Ill.; died 1984 in Geneva, Ill..
131 v. Patrick Austin Callaghan, born 22 Mar 1897; died 31 Oct 1971 in Framingham, Mass.. He married Kitty Cash; born in Graham's Road, PEI; died 1966 in Framingham, Mass..
132 vi. Thomas Francis Doyle Callaghan, born 20 Jan 1900 in Ebbsfleet, PEI; died 12 Oct 1937 in St. Louis, PEI. He married Annie Mira O'Brien 15 Aug 1926 in St. Louis, PEI; born 24 Sep 1901 in Alma, PEI; died 30 Nov 1971 in St. Louis, PEI.
133 vii. John Joseph Clarence Callaghan, born 16 Mar 1901 in Miminegash, PEI; died 08 Feb 1902 in Miminegash, PEI.
134 viii. Bridget Florence Adeline Callaghan, born 08 Sep 1902 in Miminegash, PEI; died 19 Sep 1966 in Framingham, Mass.. She married Harry Reifforth.
135 ix. Gertrude Marion Callaghan, born 14 Jun 1904 in Miminegash, PEI; died 03 Aug 1990 in Framingham, Mass.. She married Donald Mundy; died in Framingham, Mass..
136 x. Emmett Robert Callaghan, born 20 Apr 1906 in Miminegash, PEI; died Apr 1955 in St. Louis, PEI. He married Eva Harper; born in Tignish, PEI; died 1965 in St. Louis, PEI.
137 xi. James Frederick Callaghan, born 11 Oct 1907 in Miminegash, PEI; died 28 Feb 1946 in Summerside, PEI. He married Irene Cameron; born in Indian River, PEI; died 06 Aug 1986 in Framingham, Mass..
138 xii. Wilfred Edward Callaghan, born 14 Jun 1909 in Miminegash, PEI; died 1969 in Summerside, PEI. He married Catherine MacEachern; born in New Waterford, N.S.; died 1977 in Summerside, PEI.
55. James3 Callaghan (Ellen2 Pendergast, William1) was born 08 Mar 1865 in Miminegash, PEI, and died 1954. He married Adelaide Smith. She was born 05 Oct 1870 in Kinkora, PEI.
139 i. Ann Jane4 Callaghan, born 30 May 1894 in Miminegash, PEI. She married Ray Gallant.
140 ii. George Callaghan, born 27 Oct 1895 in Miminegash, PEI. He married Alberta Hood.
141 iii. Winnifred Ellen Callaghan, born 09 Nov 1896 in Miminegash, PEI. She married Edmund Kelly.
142 iv. Bernice Callaghan, born Apr 1898 in Miminegash, PEI; died 1914.
143 v. Marie Callaghan, born 27 Apr 1899 in Miminegash, PEI.
144 vi. Louis Callaghan, born 11 Jun 1900 in Miminegash, PEI. He married Ann Mokler.
145 vii. Patrick Callaghan, born Mar 1902 in Miminegash, PEI. He married Isabelle McCarthy.
56. Peter3 Callaghan (Ellen2 Pendergast, William1) was born 24 Jan 1868 in Tignish, PEI, and died 14 Dec 1957. He married Catherine Matilda Hogan 14 Jul 1896 in Tignish, PEI, daughter of Patrick Hogan and Mary Cahill. She was born 12 Feb 1868 in North Cape, PEI, and died 10 Feb 1951 in Ebbsfleet, PEI.
146 i. Frederick Cecil4 Callaghan, born in Miminegash, PEI.
147 ii. Mary Ellen Hazel Callaghan, born 28 Sep 1897 in Miminegash, PEI; died 08 Aug 1968 in Kinkora, PEI. She married James Bernard Lawless 26 Oct 1927; born 01 Apr 1899 in Graham's Road, PEI; died 1992 in Kinkora, PEI.
148 iii. Harris William Patrick Callaghan, born 25 Feb 1899 in Miminegash, PEI; died 21 Apr 1986 in Miminegash, PEI. He married Cora Josephine Shea 23 Oct 1926; born 02 Nov 1906 in Waterford, PEI; died 09 Feb 1994 in O'Leary, PEI.
149 iv. Peter Jay Winston Callaghan, born 25 Sep 1901 in Miminegash, PEI; died 1964.
150 v. Anna Della Callaghan, born 27 Dec 1902 in Miminegash, PEI; died 01 Apr 1969 in Summerside, PEI. She married Louis O'Connor; born 04 Aug 1896.
151 vi. Mary Hilda Patricia Callaghan, born 17 May 1905 in Miminegash, PEI; died 18 Sep 1976 in Charlottetown, PEI. She married Francis Donald Joseph MacDougall 18 Nov 1936 in Palmer Rd., PEI; born 19 Mar 1908 in Richmond, PEI; died 18 Oct 1981 in Charlottetown, PEI.
152 vii. Merritt Edwin Callaghan, born 02 Oct 1908 in Miminegash, PEI; died 18 Apr 1972 in Alberton, PEI. He married Mary Lorraine Hughes 28 Jul 1943; born 03 Jul 1923 in Emerald, PEI; died 21 Jul 2003 in Summerside, PEI.

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text:
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New: U.S. Senate Judiciary Committee, written testimony on "Red Flag Laws: Examining Guidelines for State Action." March 26, 2019.
District Court Permanently Enjoins California Magazine Confiscation Law. Reason, Volokh Conspiracy. Mar. 29, 2019.
The Lessons of Purim Are Still Relevant Today. Epoch Times. Mar. 21, 2019.
Red Flag bill guts due process, unnecessarily threatens police and public safety. Complete Colorado. Mar. 12, 2019.
Second Amendment Rights of Young People: Nineteenth Century Law and Twenty-first Century Cases. Reason, Volokh Conspiracy. Feb. 26, 2019.
Plenty of red flags in Colorado’s 'extreme risk' protection order bill. Complete Colorado. Feb. 19, 2019. With Joseph Greenlee.
Mayhew, Liberty, and the Resistance to Tyranny. Epoch Times. Jan. 30, 2019.
Supreme Court's New Second Amendment Case: Opportunity to address nullification of the right to arms. Reason, Volokh Conspiracy. Jan. 22, 2019.
Textual analysis of HR8, bill to "To require a background check for every firearm sale." Bill about gun "sale" turns ordinary gun loans into felonies, bans handguns for young adults, and authorizes unlimited fees. Reason, Volokh Conspiracy. Jan. 9, 2019.
The Ever-Shifting Definition of "Assault Weapons." The phrase has been used to promote bans on almost every type of gun. Reason, Volokh Conspiracy. Jan. 2, 2019.
Do Some Courts Underenforce the Second Amendment? Data show problems in several Circuits. Reason, Volokh Conspiracy. Dec. 27, 2018.
Supreme Court Should Clarify Second Amendment Test. Challenge to ban on interstate handgun sales would be a good vehicle. Reason, Volokh Conspiracy. Dec. 20, 2018.
The Story of Hanukkah. How a small militia started an uprising that won national independence and saved Judaism. Epoch Times. Dec. 2, 2018.
Childress Says, "The Second Amendment Saved Our Lives." NASCAR great describes the armed invasion of his home last year. America's 1st Freedom. Dec. 2018.
How anti-gun states can already confiscate guns without trial. Conservative Review. Mar. 27, 2019. byl Nate Madden.
Republican Senate holds gun control hearing as students commemorate 'March For Our Lives' anniversary. ABC News. Mar. 26, 2019.
Florida sheriff: Having 'red flag' law in place pre-Parkland 'absolutely' would have mattered. Washington Times. Mar. 26, 2019. by David Sherfinski.
"I cannot get her life back": Lawmakers hold rare gun control hearing to discuss "red flag" state laws. Mar. 26, 2019. CBS News. by Grace Segers & Camilo Montoya-Galvez.
Lawmakers discuss 'red flag' laws at gun control hearing. WCAX TV, Vermont. Mar. 26, 2019..
Can Congress Pass a Law Disarmng People in Crisis. Pacific Standard. Mar. 26, 2019. by Francie Diep.
GOP-Led Committee Examines Red-Flag Gun Laws. Courthouse News Service. Mar. 26, 2019. by Britain Eakin.
Colorado’s Dave Kopel to U.S. Senate committee: “Red Flag” laws must fully respect due process. Complete Colorado. Mar. 26, 2019. by Mike Krause.
Senate Republicans Voice Support for Red Flag Laws, With Caveats. The Trace. Mar. 26, 2019. by Nora Biette-Timmons.
New Zealand Just Banned Military-Style Firearms: Here’s Why The U.S. Can't. Captain's Journal. Mar. 26, 2019. by Herschel Smith.
Red Flag bill is the wrong tactic. Colorado Springs Gazette. by Rachel Stovall. Mar. 15, 2019.
Rural Sheriffs Defy New Gun Measures. Wall Street Jounral. Mar. 10, 2019. by Dan Frosch and Jacob Gershman.
Colorado House passes 'red flag' gun control bill as counties OK Second Amendment sanctuary measures. Colorado Watchdog. by Derek Draplin. Mar. 4, 2019.
New Mexico sheriffs' gun laws protest follows other states. Associated Press. by Mary Hudetz. Mar. 1, 2019.
Colorado Inside Out. March 9, 2019. Full episode. Hickenlooper presidential run. Bill to eliminate oil and gas industry. Sanctuary counties fighting dangerous "red flag" bill. Bill to abolish the death penalty in Colorado.
Federal Circuit Second Amendment Developments 2018. 7 Lincoln Memorial University Law Review (forthcoming 2019). With Joseph G.S. Greenlee.
Defining "Assault Weapons." The Regulatory Review (Univ. of Pennsylvania). Nov. 14, 2018.
Data Indicate Second Amendment Underenforcement. 68 Duke Law Journal Online 79 (2018). Problems in the Second, Fourth, and Ninth Circuits.
Federal Circuit Second Amendment Developments 2017-2018. Texas State Bar Association. Firearms Law Seminar. 2018. With Joseph Greenlee.
The Second Amendment Rights of Young Adults. 43 Southern Illinois University Law Journal (forthcoming 2019). With Joseph Greenlee.
Pena v. Horan. Cert. petition. No. 18-843. Feb. 1, 2019. Amicus brief for Second Amendment law professors, Citizens Committee for the Right to Keep and Bear Arms, Mountain States Legal Foundation, Jews for the Preservation of Firearms Ownership, Independence Institute, and Millennial Policy Center. California's "microstamping" mandate creates a de facto ban on all new models of semiautomatic pistols. The Ninth Circuit opinion uphold the ban was based on speculation and refusal to consider the plaintiffs' evidence.
Mance v. Whitaker. Cert. petition. No. 18-663. Dec. 20, 2022. Amicus brief for Second Amendment law professors, Independence Institute, and Millennial Policy Center. Challenge to federal ban on interstate handgun sales between consenting states. Argues that Court should take the case to explicate the proper test for Second Amendment challenges, due to conflicts in the lower courts, and nullification of the Second Amendment in some courts.
Chiafalo v. Washington. No. 953-47-3. Dec. 5, 2018. Washington Supreme Court. Amicus brief of Independence Institute. Based on original public meaning of Article II and the Twelfth Amendment, presidential electors are free to vote their conscience, and cannot be constrained by state law.
Maryland Shall Issue v. Hogan. No. 16-cv-3311-ELH (D. Md. Oct. 5, 2018). Amicus brief of International Law Enforcement Educators and Trainers Association, International Association of Law Enforcement Firearms Instructors, 11 law professors, Second Amendment Foundation, Citizens Committee For The Right To Keep And Bear Arms, Jews For The Preservation Of Firearms Ownership, Millennial Policy Center, and Independence Institute. Maryland's burdensome handgun licensing system in contrary to original understanding, history, and tradition, and cannot pass heightened scrutiny.
Timbs v. Indiana. No. 17-1091. U.S. Sup. Ct. Sept. 11, 2018. Merits amicus brief. The Independence Institute joins a broad civil liberties coalition in an amicus brief led by the Drug Policy Alliance. The issue is whether the Eighth Amendment's Excessive Fines Clause should be incorporated against the States. The brief details modern abuses of forfeiture laws, and argues that no government can have a legitimate interest in imposing an "excessive" fine.
Worman v. Healey. Aug. 29, 2018. Amicus brief for 11 law professors specializing in the Second Amendment, the Second Amendment Foundation, Citizens Committee for the Right to Keep and Bear Arms, Jews for the Preservation Ownership, Independence Institute, and Millennial Policy Center. Massachusetts ban on common firearms and standard magazines violates Supreme Court precedent. Such arms have been traditional American arms since the 19th century. Cato Institute summary.
Young v. Hawaii. Ninth Circuit. July 23, 2018. State may not limit carry permits only to security guards. Cites Kopel article on natural right of self-defense.
Colorado Department of Labor v. Dami Hospitality. Colorado Supreme Court. July 2, 2018. Amicus brief argues that the Eighth Amendment's rule "nor excessive fines imposed" does not have a loophole allowing excessive fines to be imposed on corporations.
U.S. Senate Judiciary Committee. Dec. 6, 2017. Written testimony on: Bill to ban bump stocks and some gunsmithing. S 1916; Fix NICS Act, S. 2135; Bill to allow indefinite delays in background checks, S. 1923; interstate carry reciprocity, S. 446. Video of testimony (Kopel starts at 2:31:28). Written responses to Questions for the Record for Sen. Grassley.

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IN THE MATTER OF THE APPLICATION OF BONNIE LEE DANIELS LAWRENCE, ALSO KNOWN AS BONNIE LEE DANIELS, FOR LEAVE TO ASSUME THE NAME OF BONNIE LEE DANIELS.
Superior Court of New Jersey, Bergen County Court.
*313 Ms. Bonnie Lee Daniels, pro se.
BRESLIN, R.W., J.S.C., Temporarily Assigned.
Plaintiff is a law student who is married to one Adam Lawrence. Plaintiff and her husband are still legally married. The complaint recites that plaintiff has never been convicted of a crime, no suits are now pending against her, and no judgments have been recovered against her in insolvency or bankruptcy proceedings. The reasons plaintiff gives for wishing to change her name are the desire to retain an identity separate and distinct from that of her husband and the professional and social implications attendant upon such a change. Plaintiff has submitted proof of publication of her intent to change her name and has in all other respects complied with the procedures set forth in R. 4:72-1 et seq.
Any person may institute an action in the county court of the county of which he is a resident or in the superior court, for authority to assume another name.
The issue presented to the court is whether a woman who is still legally married may be granted a change of name in a judicial proceeding in order to resume the use of her maiden name as her sole legal name. A thorough review of the case and statutory law of this State discloses no authority on this point, and as a result the court must look to other jurisdictions for guidance in this matter.
The general rule applicable to a change of name is that a person may, in the absence of a fraudulent or improper *315 motive, adopt any name by which he chooses to be known. In re M, supra; Sobel v. Sobel, 46 N.J. Super. 284 (Ch. Div. 1957); State v. Librizzi, 14 N.J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); Bruguier v. Bruguier, 12 N.J. Super. 350 (Ch. Div. 1951). This common law procedure may be utilized without resort to any formal legal proceeding. Such statutory proceedings are generally regarded as providing an additional method for changing one's name rather than abrogating the common law rule in this regard. See 65 C.J.S. Names § 11(2) at 32; 57 Am. Jur.2d, Name § 11 at 282.
See also 57 Am. Jur., 2d, Name, §§ 11, 12; In re Ross, 8 Cal. 2d 608, 67 P.2d 94, 110 A.L.R. 217 (Sup. Ct. 1937); In re Taminosian, 97 Neb. 514, 150 N.W. 824 (Sup. Ct. 1915).
Effect of judgment for change of name in general.
Such person, from and after the day specified therefor in the judgment in the action, shall be known by the name which, by the judgment, he is authorized to assume, and by no other.
It is thus apparent that if this court were to grant plaintiff's petition she would henceforth be known as Bonnie Lee Daniels. She would be forever barred from using any other name, including her husband's surname, for any purpose whatsoever without first instituting a judicial proceeding for a second change of name.
Plaintiff contends that in fact her surname has not been changed by marriage and that her maiden name is still her legal name. If this were indeed true there would be no need for plaintiff to have instituted the present proceeding, since she would be asking the court for a judgment changing her legal name from her purported name to that which is already her legal name.
There is some confusion as to what is the common law rule as to the change of a woman's surname upon marriage. After careful examination of the cases and treatises cited by plaintiff and a thorough review of the law on the subject the court has determined that plaintiff's proposition is not supported in law and is in fact based upon an erroneous interpretation of the common law.
This statement was not supported by any authority whatsoever. Even if precedent of some type had been relied upon, the court was stating the common law as applied in the State of Louisiana, which was derived from French law as opposed to the English origins of the common law of this and all the other states.
A concurring opinion disagreed with the above proposition. In support of this the concurring judge relied upon Kneipp, supra, and a French treatise on civil law.
The Chapman rule is also cited with approval in Baumann v. Baumann, 250 N.Y. 382, 165 N.E. 819 (Ct. App. 1929), wherein the court refused to enjoin the second wife of Charles Baumann from using the name "Mrs. Charles Baumann," even though her husband's divorce from his first wife was invalid. The court reasoned that the first wife's status as the one and only spouse of Mr. Baumann was secure, and though *319 plaintiff had a legal right to use the name "Baumann," that right was not exclusive.
The court then proceeded to uphold plaintiff's right to appear on the ballot using her maiden name.
The court in Rice relied on citations to the American and English Encyclopedia of Law and the cases of Converse v. Converse, 9 Rich. Eq. 535 (S. Carolina 1856); Fendall v. Goldsmid, 2 Prob. Div. 263 (1877), and In re Snook, 2 Hilt. 566 (N.Y.C.P. 1859).
Ths husband being the head of the family, the wife and children generally adopt his name-by custom, the wife is called by the husband's name. But whether marriage shall work any change of name at all is, after all, a mere question of choice, and either may take the other's name, or they may join their names together.
The above language clearly stands only for the proposition that a woman may file an application in a divorce action to shed the surname of her husband with his consent. The language used by the court goes no further than this, although the italicized sentence indicates a recognition by the court that the name of a married woman is inexorably lined to that of her husband.
Fendall v. Goldsmid, supra, involved the marriage, without proper publication of marriage banns, of two persons who had previously divorced each other. Petitioner Alice Goldsmid had had the banns published under that name, although ever since the dissolution of the prior marriage she had been known as Alice Fendall, her maiden name. In dismissing the petition the court stated that marriage confers a name upon a woman which becomes her actual name, and that she can only obtain another name by reputation.
The case of Cowley v. Cowley,  A.C. 450 (H.L. 1901), involved the Earl of Cowley who complained that his commoner ex-wife was continuing to use the title "Countess of Cowley" although she was now married to a commoner. The court held that the Earl had suffered neither legal wrong nor damage. It was conceded that nothing in the divorce decree deprived the countess of either the title or the privileges which she had acquired as the wife of the earl. It also noted that commoners who become peeresses by marriage retain their titles after remarriage to commoners by courtesy and the usages of society, not as a matter of right. Cowley dealt with a woman's right to continue the use of her married name, not her right to discard it. The case, along with Fendall v. Goldsmid, supra, is cited in 19 Halsbury's Laws of England, Husband and Wife, § 1350 at 829, as supporting the proposition that a woman's change of name by marriage is a change in fact only and not a change in law.
A careful reading of the above cases and articles leads this court to the inescapable conclusion that the reliance placed upon them by the court in Rice v. State, as quoted supra, for the proposition that a woman adopts her husband's name upon marriage only as a matter of custom and not as a matter of law, is misplaced, and that therefore the statement of the law in Rice is erroneous.
A much-cited work on the question before this court is The Law of Married Women by Moss Turner-Samuels *325 (1957). The author states (at 345) that the practice of a woman taking her husband's surname upon marriage is a custom only and not compellable by law. The author cites no authority for this statement. He then remarks that a wife may continue to use her maiden, married, or any other name by which she wishes to be known. The context in which this statement is made leads the court to the conclusion that the author was referring to a person's change of name by the common-law rather than the statutory method. The cases relied upon by the author in support of his contention are Cowley v. Cowley, supra; Davies v. Lowndes, 1 Bing. N.C. 597 (1835), and DuBoulay v. DuBoulay (1869) L.R. 2 P.C. 430. In Davies the decedent appointed William Lowndes his lawful heir, provided that no heir at law of decedent was found, and further provided that Lowndes change his surname to Selby, the surname of decedent. The main point of the case as far as change of name is concerned is that a person need not go through a formal proceeding to change his name, but may do so by what has been referred to as the common-law method, supra.
The DuBoulay case involved a woman who was holding herself and her child out to the community as the wife and child of plaintiff. The court refused to enjoin her from continuing to do so. The case stands for the proposition that a court will, under certain circumstances, refrain from stepping in to prohibit a woman from using the surname of another, even though she is not related to him by blood or marriage. Neither of the above cases deals with the subject of the proper legal name of a married woman.
Turner-Samuels also mentions the case of Lady Hatton, the second wife of Sir Edward Coke, who refused to take her second husband's name and in fact never did so. This situation was never before a court of law and cannot be cited as precedent. Even if it were to be relied upon it would fall into that class of cases wherein the wife never takes her husband's surname but uses her prior name consistently and nonfraudulently.
*326 Thus it is apparent that the statements made by Turner-Samuels as to the true name of a married woman are also without foundation.
The remaining authorities cited by plaintiff are Priscilla Ruth MacDougall, "Married Women's Common Law Right to Their Own Surnames," Women's Rights L. Rptr. (Fall-Winter 1972-73), and Kathleen A. Carlsson, "Surnames of Married Women and Legitimate Children," 17 N.Y.L.F. 552 (1971). Both of these articles conclude that a woman has a common law right to retain the use of her maiden surname. However, in support of this conclusion both authors rely primarily on the cases discussed, supra. Since the court has concluded that those cases do not in fact support the above proposition, plaintiff cannot rely on these articles as authority.
In all of the cases discussed in this opinion in which the wife was allowed to retain her maiden name, she had used the name exclusively, consistently and nonfraudulently in all her affairs, both before and after marriage. Plaintiff in the present case has offered no evidence to show that she has similarly conducted her affairs. In fact, plaintiff filed the petition itself, using her husband's surname and giving her full maiden name as an alternative appellation. The law which plaintiff has relied upon as authority for her contention that she still legally retains her maiden name has been shown upon close examination and analysis not to be supportive of the proposition. While there is still no clear statement of what is a married woman's legal name, it cannot be denied that the tradition of a woman adopting her husband's surname upon marriage is deeply imbedded in the common law of both Great Britain and the United States, and is almost universally followed to this day.
The public interest in the marriage relationship is greater even than the private interest of husband and wife in their relationship. The law favors the marital relation and the permanence of the family. The family, with the obligations and privileges pertaining to it, reaches back of all state regulations, although it is necessarily regulated by positive law.
Plaintiff and her husband are both of youthful age. Although they have no children at this time, it is not at all improbable that they will eventually raise a family. The situation which would be created by the granting of plaintiff's application, viz., plaintiff and her husband each continuing to use the surnames with which they were born, would cause great confusion in the community in which they *328 live and could well have a traumatic effect upon any children they might have. This is especially true in light of plaintiff's use of her husband's surname subsequent to her marriage. The problem would also arise of what surname to give the children of their marriage and the confusion and bureaucratic nightmares the process of selecting a surname would create.
As a result of the foregoing discussion, this court is of the opinion that there is sufficient cause in this matter for it in its sound discretion to deny plaintiff's petition, and the same is hereby denied.


Richard L. Young, Seattle, Wash., for appellant.
William H. Goodwin, U.S. Atty., Stanley H. Barer, Asst. U.S. Atty., Seattle, Wash., for appellee.
David H. Guren, Exec. Director, AC LU, Arnold J. Barer, Seattle, Wash., for the ACLU as amicus curiæ.
Before BARNES, KOELSCH and BROWNING, Circuit Judges.
This appeal tenders complex questions regarding the constitutional rights of a juvenile in a proceeding under the Juvenile Delinquency Act, 18 U.S.C. § 5031. We are invited to decide the extent to which the strict procedural safeguards afforded to adults in criminal matters are applicable to juvenile delinquency proceedings. In particular, issues are presented which bring into play a wide spectrum of doctrines regarding right to counsel, unlawful detention, involuntary confessions, right against self-incrimination and burden of proof. However, since we believe that the case must be reversed on still another ground, we do not pass on these questions.
It is with acute awareness of both the significance and urgency of these problems that we decline the invitation to write a treatise on the constitutional rights of juveniles. But in view of the fact that many of these same issues are presently pending before the Supreme Court in a case already argued [Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965), probable jurisdiction noted, 384 U.S. 997, 86 S.Ct. 1922, 16 L.Ed.2d 1013 (1966)] we do not believe an extended discussion would serve any useful purpose.
The facts, so far as pertinent to our disposition of this case, are as follows: Appellant, a fifteen year old boy, was prosecuted under the Federal Juvenile Delinquency Act [ 18 U.S.C. § 5031], for having violated a criminal law of the United States, [ 18 U.S.C. § 641]. He was tried by the court without a jury and found guilty as charged.
At the trial the principal evidence introduced was appellant's confession. In it he admitted that for about six months he had been stealing scrap metal from the Naval Ammunition Depot at Bremerton, Washington; that entry was gained by climbing the fence or by opening a gate with a key which he had found in the lock; that on several occasions he was accompanied by other boys; that he sold the scrap to junk dealers, three of whom he specifically named; and that his total receipts aggregated from $700-$1000.
Appellant strenuously objected to the introduction of this document on the basis of the fourth, fifth, sixth and fourteenth amendments. As noted earlier, we deem it unnecessary to rule on these contentions.
"[w]here the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), § 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it."
Where the crime is one having a tangible corpus delicti, then the corroboration must consist of proof independent of the confession itself that a crime was in fact committed; but in those cases where the crime involves no tangible corpus delicti, the corroborative evidence need show no more than the trustworthiness of the admission or confession — it need not show the actual commission of the crime.
Recognizing this distinction, the Court (continuing the above quotation) added: "But where the crime involves no tangible corpus delicti, we have said that `the corroborative evidence must implicate the accused in order to show that a crime has been committed.'" Wong Sun, supra, 371 U.S. at 490, 83 S.Ct. at 418. See, also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Smith v. United States, 348 U.S. 154, 75 S.Ct. 194 (1954).
Here, there was no requisite corroboration of the confession.
Appellee asserts that two pieces of evidence tend to corroborate the confession: first, a key which an FBI agent obtained from appellant's mother and which he said fit all the locks in the naval depot, and second, testimony by a boy named in the confession that he (the boy) had been with appellant on one visit. At most this proof shows appellant had access to the depot; it fails to establish that anyone had in fact committed a theft.
"Its purpose is to prevent `errors in convictions based upon untrue confessions alone,' (citation omitted); its foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration by the jury * * * further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be `involuntary' within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of the courts, the police and the medical profession recounts a number of false confessions voluntarily made * * *." Smith v. United States, 348 U.S. 147, 153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954).
Granting that the purpose of a juvenile proceeding is to rehabilitate, rather than to punish [Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)], both the need for rehabilitation in the one case and the reason for punishment in the other, rest upon the same basis — the subject's transgression of the minimum rules of social conduct embodied in the criminal law. Surely it is not demanding too much of the government in the case of the child as in the case of the adult to require trustworthy proof of delinquency. "If in fact the alleged delinquent child has not committed the act on which the finding of delinquency is based, there is grave doubt that the unjust commitment will have the hoped for reclaiming effect." Annot., 43 A.L.R.2d 1128, 1131.


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Did you know that Lower Manhattan’s South Street was at one time completely underwater? The island was largely uninhabited until Dutch settlers arrived in the Seventeenth Century. They recognized the potential of the magnificent harbor surrounding the territory, and they set to work using landfill to expand the island’s coastline. The Dutch were skilled shipbuilders and sailors. They built docks, and soon ferries were transporting passengers between what is now Manhattan, Brooklyn, Staten Island, and New Jersey. The water around the island was deep enough to accommodate the larger ships of that time, which made this an ideal location for world trade.
Later in the century when English settlers took control of the colony, New York Harbor became the busiest in the nation. It survived pirates, wars, and embargoes. Trade and commerce fluctuated throughout the centuries and peaked during the Nineteenth Century. The South Street area’s proximity to the harbor made it ideal for businesses, such as a variety of merchants, ship chandlers, sail makers, figurehead carvers, boarding houses, saloons, and even brothels.
The seaport’s first counting houses were built beginning at the end of the Eighteenth Century. A “counting house” is what we recognize today as an office, shop, or warehouse. Prior to the counting house, business was conducted from within a person’s home. The fireproof counting houses built at the South Street Seaport were constructed of brick. When we think of Manhattan today, we think of its largest skyscrapers. In the early Nineteenth Century, Manhattan’s largest buildings were built out, not up.
Schermerhorn Row, extending from Front Street to South Street on Fulton Street’s south side was one of Manhattan’s largest structures at its completion in 1812. This row of twelve brick warehouses has withstood the test of time and still exists among Lower Manhattan’s historically significant landmarks. Inevitably the size of ships increased, and the South Street Seaport could not accommodate these larger vessels and their new technologies. The area had gone into decline by the start of the Twentieth Century. The water was too shallow for the larger ships, and by the 1930s shipping had moved further up Manhattan’s West Side.
Plans in 1966 to create a maritime museum inside Schermerhorn Row evolved into the formation of the South Street Seaport Museum in 1967, whose efforts have resulted in the historic district presently occupying the entire seaport area. Its purpose is to remind people of New York’s important maritime history. Many restorative projects as well as new development have contributed to the revitalization of the South Street Seaport, and while it is no longer the great port it once was, it is abuzz with shopping, restaurants, and of course, traces of its history.
Baiter, R. A. (1975). Lower Manhattan waterfront: The special Battery Park City district, the special Manhattan landing development district, the special South Street Seaport district. New York: Office of Lower Manhattan Development.
Baloga, V. E. (2010). Untitled 00 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 01 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 02 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 03 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 04 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 05 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 06 [Photograph]. Unpublished.
Baloga, V. E. (2012). Untitled 07 [Photograph]. Unpublished.
Rosebrock, E. F. (1975). Counting-house days in South Street. New York, NY: South Street Seaport Museum.
White, E. B. (1999). Here is New York. New York: The Little Bookroom.
Willis, C. (Ed.). (2002). The Lower Manhattan plan: The 1966 vision for downtown New York. New York, NY: Princeton Architectural Press.
Workers of the Writers Program of the Work Projects Administration for the City of New York. (2004). A maritime history of new york. Brooklyn, New York: Going Coastal, Inc.

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