Commonwealth v. Field ( 2017 )

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SJC-11403
COMMONWEALTH vs. EUNICE M. FIELD.
Plymouth. March 10, 2017. - August 1, 2017.
Present: Gants, C.J., Hines, Lowy, & Budd, JJ.
Homicide. Constitutional Law, Assistance of counsel, Admissions
and confessions, Voluntariness of statement. Mental
Impairment. Evidence, Admissions and confessions,
Voluntariness of statement, Videotape, Competency.
Practice, Criminal, Capital case, Assistance of counsel,
Admissions and confessions, Voluntariness of statement,
Competency to stand trial.
Indictment found and returned in the Superior Court
Department on October 21, 2010.
The case was tried before Charles J. Hely, J., and a motion
for a new trial, filed on June 16, 2014, was heard by him.
Elizabeth Caddick for the defendant.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
LOWY, J. In August, 2010, the victim, Lorraine Wachsman,
was stabbed to death. A jury in the Superior Court found the
defendant guilty of murder in the first degree on theories of
2
deliberate premeditation and extreme atrocity or cruelty. The
defendant appeals from her conviction and from the denial of her
motion for a new trial.
The defendant asserts several claims of ineffective
assistance of counsel, centering on trial counsel's failure to
consult with a mental health expert regarding (1) a defense of
mental impairment, including impeaching the Commonwealth's
mental health expert; (2) the suppression of statements made by
the defendant during two police interviews; and (3) the
defendant's competency to stand trial. Although we conclude
that trial counsel erred by failing to consult with a mental
health expert, the error does not require reversal of the
defendant's conviction. See Commonwealth v. Nolin, 448 Mass.
207, 220 (2007); Commonwealth v. Wright, 411 Mass. 678, 682
(1992), S.C., 469 Mass 447 (2104). We also decline to grant
relief under G. L. c. 278, § 33E.
Background. We recite the facts the jury could have found
in the light most favorable to the Commonwealth, reserving
certain details for our analysis of the issues.
The defendant, who was prescribed medication for bipolar
disorder, and who had a history of substance abuse, came to know
the victim through Alcoholics Anonymous (AA). The defendant and
the victim had a strained relationship for some time leading up
to the victim's death. The victim was close with the
3
defendant's former longtime girl friend and acted as the girl
friend's AA "sponsor." The defendant blamed the victim for the
defendant's romantic relationship with the girl friend ending in
early 2010. Even before the events leading to the end of her
romantic relationship with the girl friend, the defendant
harbored resentment toward the victim. According to the
defendant, the victim prevented her from visiting a sick mutual
friend in the hospital, prior to that friend's death.
On the night before the victim's death, the defendant
telephoned the victim and arranged to meet her the following
morning. That night, the defendant wrote on her page on the Web
site Facebook, "Tic toc, tic toc. I'm going to finish my book
tomorrow. You're all going to be real interested in it because
you're all in it. The title is Tormented Minds by Eunice
Field." At around the same time, the defendant wrote a note,
addressed to the former girl friend, which stated that the
victim would "get what she deserves for coming between you and
me,"1 and that she had "snapped" because of her bipolar disorder.
1
The note stated:
"I love you with all my heart. I know you know that.
I'm sorry for not giving you a better life. My heart aches
for what I have done to you. But remember to always follow
your heart. My mind is tired now, so I have to go. Your
[sic] the best thing that ever happened to me. I will love
you always for that, but something happened to me, with my
bipolar and all, I snapped. Lorraine will get what she
deserves for coming between you and me. I love you. . .
4
The defendant traveled to the victim's apartment in
Bridgewater on the morning of August 9, 2010, and killed the
victim by stabbing her nine times with a knife in the neck,
chest and back. After killing the victim, the defendant drove
herself to the Brockton police station. When she arrived, she
remained in her motor vehicle. Officers found the defendant,
complaining of chest pain. As they helped the defendant out of
her automobile, they saw that she was covered in blood. After
being asked about the blood, the defendant stated that she had
just killed someone.
The defendant was brought into the police station and
seated on a bench in the lobby, where she repeated that she had
killed someone, and when asked, gave the victim's name. She
also provided the officers with the name of the apartment
complex in which the victim lived. The defendant was taken to
an interview room. She was read the Miranda rights, and she
responded that she understood them and that she wished to waive
them. Police conducted a videotaped interview in which the
defendant made incriminating statements.
The defendant was then transported to the Bridgewater
police station. After the standard booking procedure, she again
waived her Miranda rights. The police conducted another
Eunice. P.S. Someday we will all know the real truth.
P.S.S. [sic] . . . Tell Truth. 'Wasn't my pain real'? by
Eunice Field."
5
videotaped interview, during which she made additional
incriminating statements. The police searched the victim's
apartment that afternoon. They found the victim's body near the
doorway and bloodstains throughout the apartment.
The two videotaped interviews were introduced at trial.
The Commonwealth also called an expert who testified that, in
watching the interviews of the defendant, he saw no evidence of
manic behavior, depression, delusions, or hallucinations, and
stated that he believed that she was criminally responsible for
her actions.
The defendant did not contest that she had killed the
victim. Counsel argued essentially that the defendant's severe
bipolar disorder prevented her from forming the requisite intent
to commit murder in the first degree. Counsel did not consult a
mental health expert but did cross-examine the Commonwealth's
expert about the severity of the defendant's bipolar disorder.
In October, 2012, the defendant was convicted of murder in
the first degree. While her direct appeal was pending in this
court, the defendant filed a motion for a new trial, in which
newly appointed counsel argued that trial counsel had been
ineffective on the same grounds that she asserts in this appeal.
After an evidentiary hearing at which a mental health expert
testified for the defendant, the judge, who also had been the
trial judge, denied the motion. He determined, in essence, that
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any errors committed by trial counsel did not affect the
evidence that the defendant deliberately premeditated the
murder. The defendant timely appealed, and the appeal was
consolidated with her direct appeal.
Discussion. "When this court reviews a defendant's appeal
from the denial of a motion for a new trial in conjunction with
his direct appeal from an underlying conviction of murder, we
review both under G. L. c. 278, § 33E" (citation omitted).
Commonwealth v. Mercado, 466 Mass. 141, 145 (2013). The
defendant's arguments on appeal stem from the ineffective
assistance of counsel claims she made in her motion for a new
trial.
In capital murder cases, we review ineffective assistance
of counsel claims by first determining "whether the alleged
lapse created a substantial likelihood of a miscarriage of
justice, a standard more favorable to the defendant than the
constitutional standard otherwise applied under Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974)" (quotations and citation
omitted). Commonwealth v. Fulgiam, 477 Mass. 20, 29 (2017). We
determine whether trial counsel erred and whether any such error
was likely to influence the jury's conclusion. Id. Where an
ineffective assistance of counsel claim is based on a tactical
or strategic decision, we find error only if the decision was
manifestly unreasonable when made. See Commonwealth v. LaCava,
7
438 Mass. 708, 713 (2003). See also Commonwealth v. Kolenovic,
471 Mass. 664, 674 (2015).
1. Failure to consult an expert and trial strategy. Faced
with overwhelming evidence, including noncustodial admissions
from the defendant,2 counsel's goal from the beginning of the
trial was to obtain a verdict of murder in the second degree.
The defendant claims that, had counsel consulted with a mental
health expert at the time of trial, counsel would have been
better able to mount a defense to the charge of murder in the
first degree, by presenting evidence regarding her mental
impairment at the time of the killing and by assisting him with
the cross-examination of the Commonwealth's expert witness.
Although we agree that trial counsel's decision not to consult
with an expert was error, the defendant has not established that
this failure was likely to have influenced the jury's verdict of
murder with deliberate premeditation. See Commonwealth v.
Walker, 443 Mass. 213, 225 (2005).
Trial counsel apparently recognized, as evidenced by his ex
parte motion for expert funds prior to trial, that the
defendant's mental state was central to his strategy of
2
Although, as discussed infra, the defendant asserts that
her custodial statements made to both Brockton and Bridgewater
police officers should have been suppressed, she does not
contest the admissibility of her earlier noncustodial statements
to the Brockton police, in which she admitted that she had
killed the victim.
8
obtaining a verdict of murder in the second degree. Further,
trial counsel knew that the defendant had claimed that she had
run out of her prescription bipolar medication several days
before the killing, and that in her handwritten note to her
former girl friend, the defendant claimed that she had "snapped"
due to her bipolar disorder.
Although trial counsel's overarching strategy to avoid a
conviction of murder in the first degree may have been the best
available defense, it was apparent from facts known and
available to counsel that the defendant's mental impairment
would be central to this defensive strategy. Nonetheless, trial
counsel never consulted with an expert regarding the defendant's
mental impairment at the time of the killing. Cf. Commonwealth
v. Roberio, 428 Mass. 278, 279-280 (1998), S.C., 440 Mass. 245
(2003) (failure to investigate criminal responsibility defense
manifestly unreasonable "if facts known to, or accessible to,
trial counsel raised a reasonable doubt as to the defendant's
mental condition" [citation omitted]). Contrast Commonwealth v.
Bois, 476 Mass. 15, 23 (2016) (decision not to offer medical
records for mental health issue was not unreasonable when
counsel had retained two experts to review records). In his
testimony at the hearing on the motion for a new trial, trial
counsel did not provide a tactical justification for his failure
to consult an expert. See Commonwealth v. Alcide, 472 Mass.
9
150, 167-168 (2015) ("This is not a case where arguably reasoned
tactical or strategic judgments . . . are called into question
. . . . Rather, . . . defense counsel did not investigate the
only realistic defense . . . to the charge of murder in the
first degree" [quotations and citation omitted]). Trial counsel
stated only that he did not consult with an expert because he
thought he understood the issues and he was skeptical that the
defendant could have "underst[oo]d what was going on."
Accordingly, we conclude trial counsel erred by failing at least
to consult with an expert regarding the defendant's mental
impairment at the time she killed the victim.
Because of this conclusion, we now examine whether that
error was likely to have affected the jury's verdict of murder
in the first degree. Walker, 443 Mass. at 225. In order to
prevail on a motion for a new trial based on a claim of
ineffective assistance, the defendant must establish that
consulting with an expert would have enabled trial counsel to
mount an effective defense based on her lack of capacity for
murder in the first degree. See Kolenovic, 471 Mass. at 673
(defendant bears burden to prove ineffectiveness). Moreover,
where a jury have returned a conviction of murder in the first
degree based on more than one theory, the verdict remains even
if only one theory is sustained on appeal. See Nolin, 448 Mass.
at 220.
10
At the hearing on the motion for the new trial, the
defendant's expert contested that the defendant's confession had
been voluntary and that she had had the capacity to act with
extreme atrocity or cruelty. He did not testify that the
defendant lacked the capacity to deliberately premeditate.
Indeed, the expert agreed that there was evidence to support the
conclusion that the defendant had formulated a plan to kill the
victim and had executed that plan.3 Contrast Roberio, 428 Mass.
at 280-281 (at hearing on motion for new trial, defense expert
testified that defendant was unable to conform conduct to law).
Therefore, even assuming that the expert would have assisted the
defense argument that the defendant could not have committed the
murder with extreme atrocity or cruelty, the record does not
establish that the expert could have assisted trial counsel in
either presenting a defense to, or more effectively cross-
examining the Commonwealth's expert regarding, deliberate
premeditation. As the judge noted at the hearing on the motion
for the new trial, there is no basis on which to conclude that
consultation with the expert would have altered the jury’s
3
We note also that the judge instructed the jury regarding
lack of criminal responsibility, even though the motion judge
noted that the defendant had, at no time, demonstrated that lack
of criminal responsibility was an available ground of defense.
The defendant does not, however, argue on appeal that she was
not criminally responsible. Nor did the defense expert so
testify at the new trial motion hearing.
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conviction of murder in the first degree based on deliberate
premeditation.
2. Failure to suppress the two police interviews. The
defendant argues that, had trial counsel consulted with an
expert, he could have successfully suppressed both videorecorded
police interviews for being involuntary, based on her state of
mind. Without these recordings, the defendant contends, the
jury would not have had a sufficient basis to find either
premeditation or extreme atrocity or cruelty.
Trial counsel believed that allowing the jury to view the
video recordings of both police interviews and to observe her
strange behavior firsthand would increase the likelihood that
the jury would find that the defendant had not premeditated the
killing or acted with extreme atrocity or cruelty. Trial
counsel's choice not to challenge the admissibility of the
interviews, therefore, was a tactical decision that was not
without justification.4 We do not, however, need to resolve
whether counsel's judgment was manifestly unreasonable because
even if we were to assume that it was, as discussed below, we
cannot conclude on this record that the admission of the
videorecorded interviews was likely to have affected the jury's
4
Given the overwhelming evidence of guilt separate and
distinct from the videorecorded interviews, it was reasonable to
allow the jury to see the defendant's behavior for themselves,
rather than having witnesses describe it in an antiseptic
fashion.
12
verdict of murder by deliberate premeditation. See Fulgiam, 477
Mass. at 29 (where defendant's ineffective claim is based on
failure to move to suppress, defendant must show motion would
have succeeded and that failure created substantial likelihood
of miscarriage of justice).
a. The Brockton police interview. In the interview at the
Brockton police station, the defendant made incriminating
statements, including that she intended to kill the victim
before she went to the victim's apartment and that she brought
the murder weapon with her to the victim's apartment. The
defendant contends that, without this evidence, the jury could
not have convicted the defendant of murder in the first degree
based on deliberate premeditation. We disagree.
The defendant's expert testified at the hearing on the
motion for a new trial that the defendant exhibited some strange
behaviors during the interview, such as slurred speech, requests
for questions to be repeated, and long pauses between words when
answering questions. The expert further testified that the
defendant may have been experiencing auditory hallucinations.
Based on these behaviors, the expert stated his opinion that the
defendant was not capable of voluntarily making these statements
or waiving her Miranda rights.
Even if we assume, however, that the Brockton interview was
involuntary and should have been suppressed, there was still
13
compelling evidence of premeditation. Most significantly, the
defendant had written a note in which she said the victim would
get what "she deserves" for interfering with the defendant's
relationship with her girl friend. Additionally, the defendant
telephoned the victim the night before the killing to arrange
the meeting -- the same night that the defendant wrote a
Facebook post that, although not directly alluding to the victim
or a plot for murder, allowed the jury to conclude that the
defendant was preparing to take some sort of drastic action the
following day. Finally, the defendant harbored ill feelings
toward the victim for at least several years before the killing,
and had arranged to meet the victim that morning.
b. The Bridgewater police interview. The defendant argues
that the second recorded interview formed the evidentiary basis
that allowed the jury to conclude that the defendant had acted
with extreme atrocity or cruelty. The defendant asserts that
the interview could have been suppressed based on either a lack
of voluntariness due to her mental state or the defendant's
assertion that she wanted to stop answering questions until she
received food and a cigarette. See Commonwealth v. Howard, 469
Mass. 721, 735 (2014) (when defendant decides to stop answering
questions, that decision must be "scrupulously honored"
[citation omitted]).
14
Many of the incriminating statements from the second
interview supported the Commonwealth's theory of extreme
atrocity or cruelty, providing evidence of conscious suffering
by the victim and the defendant's indifferent attitude towards
that suffering. See Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983). For example, the defendant told police that the victim
had repeatedly asked her "why?" during the attack, and that,
after the stabbing, she lay down on the floor with the victim,
looked into her eyes, and told her she was "feisty" and needed
to mind her own business. The defendant also stated that she
felt good about what she had done.
Even assuming, however, that the Bridgewater interview
formed the sole basis of the jury's finding as to extreme
atrocity or cruelty and that the interview should have been
excluded, the defendant's conviction of murder in the first
degree would still stand, based on the compelling evidence of
deliberate premeditation. Accordingly, even if the defendant
were to have prevailed on a motion to suppress, the evidence of
deliberate premeditation from other sources (such as her
confessional note, her social media post, and her arranging the
meeting with the victim) was so overwhelming that we cannot say
admission of the video recording was likely to have influenced
the jury's decision to convict her on the theory of
premeditation. Wright, 411 Mass. at 682.
15
3. Defendant's competency to stand trial. Finally, the
defendant argues that trial counsel was ineffective for failing
to consult an expert to ascertain her competency to stand trial.
Such an inquiry is appropriate where there is a "substantial
question of possible doubt" regarding the defendant's competency
(citation omitted). Commonwealth v. Companonio, 445 Mass. 39,
48-49 (2005), S.C., 472 Mass. 1004 (2015). Although the
Commonwealth bears a burden to demonstrate a defendant's
competency when the issue is raised before trial, Commonwealth
v. Crowley, 393 Mass. 393, 400 (1984), the defendant bears the
burden to demonstrate ineffectiveness when seeking a new trial.
See Kolenovic, 471 Mass. at 673. The defendant has not met that
burden.
The defendant has presented no evidence, beyond trial
counsel's statement that he was not sure that the defendant
understood the mental impairment defense, that the defendant was
incompetent to stand trial. As noted by the trial judge, there
was no testimony that the defendant lacked the ability to
consult with a reasonable degree of understanding. Although the
defendant argues on appeal that consulting with an expert may
have helped trial counsel realize that the defendant lacked that
ability, the defendant presented no evidence to support such a
conclusion. The defendant's expert did not testify at the
hearing on the motion for a new trial that the defendant was
16
incompetent to stand trial. Accordingly, we are unable to say,
on this record, that the defendant has raised a substantial
doubt as to her competency to stand trial. See Companonio, 445
Mass. at 48-49.
Conclusion. We have reviewed the entire pursuant to our
obligation under G. L. c. 278, § 33E. Although counsel
unreasonably failed to consult with a mental health expert for
trial, we conclude that the defendant has failed to establish
that such a consultation would have provided a basis to
challenge the Commonwealth's theory of premeditated murder.
Because we conclude that, even if the interviews should have
been excluded and even if the second interview formed the sole
basis for the jury's finding of extreme atrocity, there was
ample evidence of premeditation independent of the interviews,
the conviction of murder in the first degree stands.
Accordingly, neither trial counsel's shortcomings nor the
interests of justice require entry of a lesser degree of guilt
or a new trial. The defendant's conviction and the order
denying the defendant's motion for a new trial are affirmed.
So ordered.