Commonwealth v. Lang ( 2015 )

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SJC-10405
COMMONWEALTH vs. FRANCIS LANG.
Suffolk. November 7, 2014. - October 1, 2015.
Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.
Homicide. Constitutional Law, Public trial, Jury, Waiver of
constitutional rights, Assistance of counsel. Jury and
Jurors. Practice, Criminal, Capital case, Empanelment of
jury, Public trial, Waiver, Instructions to jury,
Assistance of counsel. Mental Impairment.
Indictment found and returned in the Superior Court
Department on May 11, 2005.
The case was tried before Stephen E. Neel, J., and one
issue raised in a motion for a new trial, filed on May 6, 2009,
was heard by him; the remaining issue raised in that motion for
a new trial was heard by Patrick F. Brady, J., and a motion for
reconsideration was considered by him.
Ruth Greenberg for the defendant.
John P. Zanini, Assistant District Attorney (Edmond J.
Zabin, Assistant District Attorney, with him) for the
Commonwealth.
Leslie W. O'Brien, for Richard M. Boucher, Jr., amicus
curiae, submitted a brief.

This opinion, which was originally released on August 4,
2015, was temporarily withdrawn by the court and has been
republished -- Reporter.
2
BY THE COURT. The defendant was convicted in 2006 of
murder in the first degree on the theory of extreme atrocity or
cruelty. While his direct appeal was pending here, he moved for
a new trial on two grounds: first, he claimed that the court
room was improperly closed to the public during the jury
selection phase of the case; second, he claimed that his trial
counsel was ineffective in failing to investigate his mental
history, thereby depriving him of, among other things, an
opportunity to make an informed decision whether to pursue a
defense of lack of criminal responsibility. We transferred the
motion for a new trial to the Superior Court and stayed the
direct appeal pending a ruling on the motion. After two
separate evidentiary hearings, one on each of the issues raised
in the motion, the motion for a new trial was denied.1
We now have before us the defendant's direct appeal and his
appeal from the denial of his motion for a new trial. In
addition to pressing the public trial and ineffective assistance
of counsel claims raised in his motion, the defendant also
challenges the judge's charge to the jury, claiming that it was
1
By agreement of the parties, the two issues raised in the
motion for a new trial were considered separately. The trial
judge heard and decided the portion of the motion raising the
public trial issue. Subsequently, and after the trial judge had
retired, another judge of the Superior Court heard and decided
the portion of the motion raising the ineffective assistance of
counsel claim.
3
error to instruct the jury that they could find malice for
purposes of murder in the first degree on the theory of extreme
atrocity or cruelty based on the so-called second or third prong
of malice, and, further, that the third prong of malice is
essentially indistinguishable from the mens rea needed for a
conviction of involuntary manslaughter.
All five Justices on the quorum agree that the judgment of
conviction and the orders denying the motion for a new trial are
to be affirmed. With respect to the public trial and jury
instruction issues, the Justices unanimously reject the
defendant's claims for the reasons set forth in parts 2.a and
2.b of Justice Hines's concurring opinion, post at -
(Hines, J., concurring). With respect to the claim that counsel
was ineffective in failing to investigate the defendant's mental
history, the Justices unanimously agree that the defendant is
not entitled to relief on that basis, but they reach this
conclusion for differing reasons. Two Justices -- Justice Hines
and Justice Duffly -- conclude that the failure to investigate
did not create a substantial likelihood of a miscarriage of
justice in the circumstances of this case because, "even
assuming the availability of a viable lack of criminal
responsibility defense, counsel's strategic choice to defend the
case solely on a self-defense theory was not manifestly
unreasonable." Id. at . The other three Justices on the
4
quorum -- Justice Lenk, joined by Chief Justice Gants and
Justice Cordy -- conclude that the failure to investigate did
not create a substantial likelihood of a miscarriage of justice
because the defendant "offered no evidence indicating that he
would have agreed to present a lack of criminal responsibility
defense at the time of the original trial, and has clearly
asserted that he would not present the defense at a new trial,"
and because "the absence of any evidence indicating his
willingness to present the defense prevents him from
establishing prejudice as a result of counsel's failure to
investigate such a defense." Post at (Lenk, J.,
concurring). These Justices are also of the view that, "[e]ven
if the defendant had agreed to present a lack of criminal
responsibility defense . . . [it is questionable] whether [it]
would have been a substantial defense and . . . [there is] no
reasonable basis for thinking the outcome at trial likely would
have been different." Id. at .
Finally, after review of the entire record pursuant to
G. L. c. 278, § 33E, the Justices agree unanimously that there
is no other basis for granting the defendant relief.
Judgment affirmed.
Orders denying motion for
a new trial affirmed.
HINES, J. (concurring, with whom Duffly, J., joins). 1.
Background. The jury could have found the following facts.
Shortly before midnight on March 18, 2005, the defendant,
Francis Lang, with a can of beer in hand, entered a bar in the
Charlestown section of Boston. Because of an incident several
years prior, the defendant had been banned from the bar by the
bartender who was on duty when the defendant arrived. The
bartender and his sister, a waitress at the bar, were the only
employees working that night.
The defendant approached the bartender and asked for a
beer. The bartender reminded the defendant that he was not
welcome at the establishment.1 The defendant protested, stating
that a long time had passed and he was a "different person."
The bartender repeated that the defendant was not welcome.
Growing upset, the defendant told the bartender that he had
better contact the police and "have them take me out because I
am not leaving." As the bartender headed over to a telephone
behind the bar, the defendant started yelling obscenities.
The bartender's sister, her boy friend, and the victim,
Richard T. Dever,2 went over to the defendant. The defendant
apologized to the bartender's sister. Someone asked the
1
The defendant had an odor of alcohol on his breath and was
slurring his words.
2
The victim was at the bar with the bartender's sister's
boy friend; they were friends.
2
defendant to leave and tried to usher him to the front door.
Although he started to comply with their requests to leave, the
defendant threw his beer can, smashing a glass object at the
bar, and said, "Fuck you," to the bartender.
Accounts by patrons inside the bar varied as to what next
ensued, but there was evidence that a scuffle occurred in the
small foyer at the entrance of the bar involving the defendant
and the victim, and possibly others. One witness testified that
the victim threw punches at the defendant. The scuffle moved
outside onto the sidewalk in front of the bar. There, the
defendant and the victim exchanged punches. The defendant took
out a pocket knife and stabbed the victim several times,
stating, "How do you like that, motherfucker?" and, "How's your
motherfucking pretty face now?" The defendant "gave the finger"
and left. Minutes later, he returned to the bar briefly,
yelling and looking for his glasses. He then fled the scene.
Several hours later, the police found the defendant hiding in a
basement apartment at a home in the area and arrested him.
After the altercation, the victim, with the assistance of
his friend, returned inside the bar. The victim had blood all
over his face from a gash inflicted during the stabbing. His
shirt was torn open revealing blood on his chest. After
stopping briefly at the back of the bar to sit down, the victim
was brought to a room out of sight behind the bar. Someone
3
screamed, "Call an ambulance." The bartender made the call, and
police officers and paramedics arrived within minutes. They
found the victim covered in blood and gasping for air.
Paramedics transported the victim to a nearby hospital where he
was pronounced dead in the early morning hours of the following
day.
The victim died as a result of multiple stab wounds. He
suffered three stab wounds to the left side of his chest, one of
which perforated his heart, and one stab wound under his arm.
Also, as a result of the attack, the victim had three incised
wounds on his face, one of which exposed bone.3
The defendant did not testify. He called one witness, a
patron at the bar. The patron stated that before the stabbing,
the defendant had been physically attacked by four people.
Based on this witness's testimony, the defendant's trial counsel
argued that the defendant had acted in self-defense.
3
We have noted the distinction between stab and incised
wounds in prior murder cases. See, e.g., Commonwealth v.
Vacher, 469 Mass. 425, 427 n.3 (2014); Commonwealth v. Chambers,
465 Mass. 520, 524 (2013); Commonwealth v. Vasquez, 462 Mass.
827, 832 (2012). As understood in the forensic pathology
community, "a stab wound is a wound from a cutting instrument
that is deeper than [its surface length], whereas an incised
wound . . . is a sharp force injury where the length on the
surface is longer than the depth." Commonwealth v. Phillips,
452 Mass. 617, 622 (2008). The medical examiner in this case
testified consistent with this understanding: "an incised
injury is more of a long cut on the skin; a stabbing injury is
usually smaller on the skin surface where the sharp instrument
is pushed in."
4
Alternatively, the defendant's trial counsel asserted that
mitigating circumstances rendered the killing nothing more than
voluntary manslaughter.
In addition to instructing the jury on murder in the first
degree, the judge instructed on murder in the second degree and
on voluntary manslaughter based on excessive force in self-
defense, heat of passion on reasonable provocation, and heat of
passion induced by sudden combat. He also instructed on self-
defense and on the effect of a defendant's alcohol intoxication
on intent.
2. Discussion. a. Public trial. In 2009, the defendant
moved for a new trial,4 claiming a violation of his right to a
public trial under the Sixth and Fourteenth Amendments to the
United States Constitution when court officers excluded the
public and his family from the court room during jury
empanelment. The trial judge conducted an evidentiary hearing
on the motion and issued written findings of fact summarized as
follows.
Jury empanelment in the case took place during the course
of two days. At the time of the defendant's trial in 2006, the
generally accepted practice at the Suffolk County Court House in
circumstances where the venire likely would require all
4
The defendant's counsel on appeal, who also represented
him on the motion for a new trial, was not his trial counsel.
5
available seats was for a court officer to instruct the public
to leave until seats became available. If a family member or an
interested citizen requested permission to remain in the court
room during jury empanelment, a court officer would bring the
request to the attention of the presiding judge, whose practice
was to hear the request and to attempt to accommodate the
individual. No such requests were brought to the judge's
attention in this case.
On the first day of jury empanelment, the court room,
initially, was filled to capacity with prospective jurors. As
the empanelment proceeded that day, seats became available for
persons other than prospective jurors. The day concluded at
4:30 P.M. On the second day, there may have been extra seats in
the court room from the outset, and certainly were at some point
that morning before jury empanelment was completed at 12:30 P.M.
Before commencing jury empanelment on the first day, the
court officer in charge of the prospective jurors instructed the
defendant's sister and her party5 to leave the court room because
5
The defendant's sister stated that her mother and boy
friend were with her that day. The defendant's mother submitted
an affidavit in conjunction with the motion for a new trial, but
did not testify at the evidentiary hearing in support of the
motion. The judge expressly discredited the entirety of the
defendant's mother's affidavit. The judge, however, found that
the defendant's sister and one other person, either the
defendant's sister's boy friend or mother, had been present at
the court room on the first morning of jury empanelment.
6
the seats were needed for prospective jurors.6 The defendant's
sister asked if they could remain because they "were a little
afraid of the other people waiting outside." The court officer
responded that they had to leave so there would be room for the
prospective jurors.
The defendant's sister and her party left the court room
and sat on a bench in a hallway. They remained there for the
rest of jury empanelment, and at no time did the defendant's
sister return to the court room to see whether seats had become
available or to ask any of the three attending court officers
whether seats had opened up.7
During jury empanelment, none of the three court officers
told anyone that the court room was "closed." They did not lock
the doors to the court room, and they did not post a sign or
officer at the doors to the court room to prevent anyone from
entering.
During trial, the defendant was represented by experienced
counsel. The defendant's trial counsel was aware of the
defendant's right to a public trial. Defense counsel, however,
did not object to what he believed to be the "acceptable common
6
There was no evidence that any other members of the public
also were inside the court room.
7
The judge found that the defendant's sister had discussed
with the defendant during trial the fact that she had been asked
to leave the court room before the prospective jurors were
escorted in.
7
practice" of excluding the public during jury empanelment when
the court room was filled with prospective jurors with no room
remaining for the public. Although he had no specific memory in
the defendant's case (except that there were more prospective
jurors in the court room than seats available), the defendant's
trial counsel often would tell members of a defendant's family
that empanelment may be boring.
The judge concluded that the defendant had not satisfied
his burden of showing that, during the jury selection process,
the court room was closed in any but a trivial or de minimis
way. He also determined that even if the court room were found
to have been partially closed, the record established that the
closure was not unconstitutional. There was no error.
The Sixth Amendment guarantees all criminal defendants "the
right to a speedy and public trial." See Waller v. Georgia, 467
U.S. 39, 46 (1984). In limited circumstances, a judge may bar
spectators from portions of a criminal trial. Commonwealth v.
Martin, 417 Mass. 187, 194 (1994). To do so, however, a judge
must make a case-specific determination that closure is
necessary, satisfying four requirements: "[1] the party seeking
to close the hearing must advance an overriding interest that is
likely to be prejudiced, [2] the closure must be no broader than
necessary to protect that interest, [3] the trial court must
consider reasonable alternatives to closing the proceeding, and
8
[4] it must make findings adequate to support the closure."
Id., quoting Waller, supra at 48.
"The right to a public trial extends to the jury selection
process." Commonwealth v. Morganti, 467 Mass. 96, 101, cert.
denied, 135 S. Ct. 356 (2014), and cases cited. "Conducting
jury selection in open court permits members of the public to
observe trial proceedings and promotes fairness in the judicial
system." Commonwealth v. Lavoie, 464 Mass. 83, 86, cert.
denied, 133 S. Ct. 2356 (2013). Where closure during jury
empanelment occurs over a defendant's objection, the
requirements set forth in Waller, supra, must be satisfied to
avoid violating a defendant's right to a public trial.
Commonwealth v. Cohen (No. 1), 456 Mass. 94, 95, 107 (2010).
"It is well settled that the violation of a defendant's
right to a public trial is structural error requiring reversal."
Commonwealth v. Wall, 469 Mass. 652, 672 (2014). "However, even
structural error 'is subject to the doctrine of waiver.'" Id.,
supra, quoting Commonwealth v. Cohen (No. 1), 456 Mass. at 106.
"A defendant need not consent personally to the waiver of his
right to a public trial; trial counsel may waive the right to a
public trial as a tactical decision without the defendant's
express consent." Commonwealth v. Wall, supra, citing
Commonwealth v. Lavoie, 464 Mass. at 88-89. "Further, the right
to a public trial may be procedurally waived whenever a litigant
9
fails to make a timely objection to an error." Commonwealth v.
Wall, supra, citing Commonwealth v. Morganti, 467 Mass. at 102.
"A procedural waiver may occur where the failure to object is
inadvertent." Commonwealth v. Wall, supra at 672-673, citing
Commonwealth v. Morganti, supra.
Our recent cases concerning waiver apply here. As in
Commonwealth v. Alebord, 467 Mass. 106, 108, 113, cert. denied,
134 S. Ct. 2830 (2014), the defendant here waived his right to a
public trial "where his experienced trial counsel was aware that
the court room was routinely closed to spectators during the
jury empanelment process and did not object" at trial to the
partial closure. The defendant did not need to consent to the
waiver itself; his counsel could effectuate the waiver and did.
See Commonwealth v. Morganti, 467 Mass. at 102. Nor was his
trial counsel, in the circumstances, ineffective for failing to
object to the closure. See Commonwealth v. Alebord, supra at
114; Commonwealth v. Morganti, supra at 104-105.
b. Jury instructions. The defendant argues error in the
judge's instructions on extreme atrocity or cruelty based on
second and third prong malice.8 To prove malice required for a
murder committed on a theory of extreme atrocity or cruelty,
8
The Commonwealth also proceeded against the defendant on
the theory of deliberate premeditation, but the jury did not
find him guilty on that theory.
10
"the Commonwealth must prove one of three prongs: (1) intent to
kill the victim; (2) intent to cause grievous bodily harm to the
victim; or (3) commission of an act that, in the circumstances
known to the defendant, a reasonable person would have known
created a plain and strong likelihood of death." Commonwealth
v. Riley, 467 Mass. 799, 821-822 (2014). See Commonwealth v.
Grey, 399 Mass. 469, 470 n.1 (1987). Specifically, the
defendant, relying on the concurring opinion in Commonwealth v.
Riley, supra, argues that we should alter our definition of
malice by abrogating second or third prong malice because those
prongs do not require an intent to kill.9,10 We decline the
invitation to do so here. The judge's instructions to the jury
in this case were in accord with our common law of murder and
followed our Model Jury Instructions on Homicide 12 (1999),
which applied at the time of trial.
9
The defendant objected to the charge below on these
grounds, so the issue is preserved.
10
The concurrence suggested that, "before a conviction of
murder may be elevated to murder in the first degree based on
extreme atrocity or cruelty," Commonwealth v. Riley, 467 Mass.
799, 829 (2014) (Duffly, J., concurring), a jury should be
required to find that "the defendant either intended to cause an
extremely atrocious or cruel death or was indifferent to such a
result." Id. The facts in Riley, however, took into account
that "the jury apparently did not conclude that [the defendant]
either intended to kill his daughter or to cause her grievous
bodily harm." Id. at 828. The same cannot be said here.
11
We also reject the defendant's argument that third prong
malice has "the same state of mind required for conviction of
involuntary manslaughter," and that consequently his life
sentence is a "disproportionate punishment." We have explained:
"The difference between the elements of the third
prong of malice and wanton and reckless conduct amounting
to involuntary manslaughter lies in the degree of risk of
physical harm that a reasonable person would recognize was
created by particular conduct, based on what the defendant
knew. The risk for the purposes of third prong malice is
that there was a plain and strong likelihood of death.
. . . The risk that will satisfy the standard for wilful
and wanton conduct amounting to involuntary manslaughter
'involves a high degree of likelihood that substantial harm
will result to another.'"
Commonwealth v. Vizcarrondo, 427 Mass. 392, 396 (1998), quoting
Commonwealth v. Sires, 413 Mass. 292, 303-304 n.14 (1992). The
standards are not synonymous.
c. Ineffective assistance of counsel. The defendant
argues that the motion judge11 erroneously denied his motion for
a new trial based on his trial counsel's failure to investigate
and pursue a defense of lack of criminal responsibility under
the standards set forth in Commonwealth v. McHoul, 352 Mass.
544, 546-547 (1967). There was no error in the judge's ruling
on the motion, although, as explained below, I would affirm on
grounds different from those stated by the judge.
11
Because the trial judge had retired, a different judge
heard and decided the ineffective assistance of counsel issue.
See ante at note 1.
12
In a written memorandum of decision and order, issued after
an evidentiary hearing, the judge made the following findings of
fact.12 Twenty-two days before the victim was killed, the
defendant had been released from Federal prison, where he had
been serving time for a conviction of being a felon in
possession of ammunition. Before the killing, the defendant had
spent much of his adult life in prison.
The defendant's trial counsel is a very able, experienced,
and highly regarded defense attorney. He has practiced criminal
law since he was admitted to the bar in 1975 and has represented
defendants in approximately fifty to one hundred murder cases.
He was appointed by the court to represent the defendant in this
case.
When the defendant's trial counsel met with the defendant
about his case, the defendant informed him that he had a
psychiatric history. Predecessor counsel had filed a motion for
a motion for funds to screen the defendant for mental illness,
but had not pursued it. Although the defendant mentioned his
psychiatric history to his trial counsel, the defendant did not
express any particular interest in pursuing a mental health
12
The judge based his findings on the testimony of the
defendant's trial counsel; the defendant's retained
psychologist, Dr. Paul Spiers; and a psychologist retained by
the Commonwealth, Dr. Tali K. Walters.
13
defense at trial.13 The defendant's explanation to his trial
counsel concerning his conduct at the time of the killing was
that he was attacked by several patrons of the bar and was
defending himself. His trial counsel believed that this defense
was viable in that it was supported by at least one independent
witness. At trial, the defendant's claim of self-defense was
supported by the testimony of one patron from the bar.
The defendant's trial counsel did not review the
defendant's psychiatric history, consult with a mental health
expert, or discuss the possibility of a defense of lack of
criminal responsibility with the defendant, although defense
counsel was familiar with this defense and had utilized it
previously on behalf of other clients. The defendant's trial
counsel held a firm belief that this defense was rarely
successful and should be raised only as a last resort and where
no other viable defenses exist. In his view, the inherent
difficulty of a lack of criminal responsibility defense, coupled
with the availability of a viable defense of self-defense,
obviated the necessity of any action on the issue of the
defendant's criminal responsibility.
13
The judge found that the defendant, in his posttrial
interview with the Commonwealth's expert, stated his opposition
to any suggestion of pursuing a lack of criminal responsibility
defense.
14
To support the defendant's motion for a new trial, Dr. Paul
A. Spiers, a neuropsychologist, examined the defendant and
prepared an affidavit. Dr. Spiers met with the defendant,
performed tests, and reviewed the defendant's psychiatric
history. In Dr. Spiers's opinion, the defendant was not
criminally responsible for killing the victim because, at the
time of the stabbing, the defendant did not appreciate the
wrongfulness of his conduct and could not conform his conduct to
the requirements of the law. In reaching his opinion, Dr.
Spiers explained that the defendant suffered from a variety of
mental disorders, including attention deficit hyperactivity
disorder, learning disabilities, anxiety, seizure disorder,
opposition-defiant disorder, bipolar disorder, and frontal
network dysfunction.14 In 2001, while being evaluated in Federal
prison for competency to stand trial, the defendant was
diagnosed with bipolar disorder, and since then has been
prescribed numerous medications for that condition, and for his
anxiety and seizure disorder. On a number of occasions, mental
health professionals who examined him in prison described the
defendant's behavior as impulsive and noted that he was not able
14
Testing revealed that the defendant had an intelligence
quotient (IQ) in an extremely low and defective range. The
expert testimony was that the defendant's IQ was the equivalent
of a person whom experts in the field previously labeled as
"mentally retarded."
15
to control his behavior. When Dr. Spiers interviewed him, the
defendant insisted, as he had to his trial counsel and to the
Commonwealth's expert, that he had acted in self-defense. There
is no evidence that the defendant ever suffered from visual or
auditory hallucinations or thought disorder.
The Commonwealth's expert, Dr. Tali K. Walters, a forensic
psychologist, conducted a three-hour interview of the defendant
on September 16, 2011, and reviewed all of his psychiatric
records and relevant portions of the case investigation file.
Based on her examination and review of the records mentioned
above, she opined that the defendant was criminally responsible
for his actions at the time of the killing. She based her
opinion on a number of factors, including that there appeared to
be no evidence in the twenty-two days before the crime, after
the defendant's release from Federal prison, of him suffering
from any symptoms of mental illness. The defendant had not
taken his medications with him from the prison, and had been
without them for the duration preceding the crime, but Dr.
Walters explained that the return of symptoms "takes weeks to
months, sometimes years." Dr. Walters added that, in the
defendant's case, it did not appear that his symptoms had
returned prior to the murder. Nor, according to Dr. Walters,
did the defendant experience symptoms of bipolar disorder or any
16
other mental illness during the first seven months following his
arrest and incarceration for the victim's murder.
Applying the standard set forth in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), the judge denied the
defendant's motion. In doing so, he rejected the defendant's
contention that defense counsel is obligated to investigate a
defense of lack of criminal responsibility "in all cases in
which a defendant may have a psychiatric background." The judge
concluded that defense counsel's opinion that such a defense is
one of last resort to be used where no other viable defense
exists was not unreasonable, as it is a view "shared by other
criminal defense attorneys." The judge concluded as well that
counsel ably represented the defendant in presenting a viable
defense, self-defense. The judge drew on his experience as a
trial judge in murder cases, noting in his decision that
"insanity verdicts are rare, even when . . . there is strong
evidence of mental illness or bizarre human conduct,"
Commonwealth v. Walker, 443 Mass. 213, 226 n.2 (2005). Last,
the judge determined that presenting a defense of lack of
criminal responsibility would have undermined or been
inconsistent with self-defense and would not have accomplished
anything material for the defendant, who had made it clear in
postconviction interviews that he did not want to use such a
defense in the event he was granted a new trial.
17
In reviewing claims of ineffective assistance of counsel in
a defendant's appeal of a conviction of murder in the first
degree, we "determine whether there exists a substantial
likelihood of a miscarriage of justice, as required under G. L.
c. 278, § 33E, which is more favorable to the defendant than is
the general constitutional standard for determining ineffective
assistance of counsel." Commonwealth v. Frank, 433 Mass. 185,
187 (2001). See Commonwealth v. Wright, 411 Mass. 678, 682
(1992). The inquiry is "whether there was an error in the
course of trial (by defense counsel, the prosecutor, or the
judge), and, if there was, whether that error was likely to have
influenced the jury's conclusion." Id. "Under this more
favorable standard of review, we consider a defendant's claim
even if the action by trial counsel does not 'constitute conduct
falling "measurably below" that of an "ordinary fallible
lawyer."'" Commonwealth v. Williams, 453 Mass. 203, 205 (2009),
quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).
In this case, defense counsel made a strategic decision,
without investigation or discussion with the defendant, not to
pursue or to investigate a defense of lack of criminal
responsibility (or other psychiatric defense). This decision
was based on his knowledge of the extreme rarity of verdicts of
not guilty by reason of insanity, and on his significant
experience in the trial of murder cases that pursuing and
18
focusing on any other viable defense is the better course of
action.15 Where, as here, the defendant's ineffective assistance
claim is based on a tactical or strategic decision, the test is
whether the decision was "manifestly unreasonable" when made.
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting
Commonwealth v. Adams, 374 Mass. 722, 728 (1978). "[S]trategic
choices made after less than complete investigation are
reasonable [only] to the extent that reasonable professional
judgments support the limitation on investigation."
Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting
15
At the evidentiary hearing on the motion, the defendant's
trial counsel explained:
"I think it's difficult to defend on a series of
fallback position[s], you know, my [client] didn't do it.
If he did, it was self-defense. If you don't buy that, he
was crazy. I think you dilute your chances of winning if
you throw up a series of defenses. . . . It depends on the
specifics of [each] case and what my goal is in the case,
what I think is realistic. I think you try cases -- there
are two different kinds of cases to be tried. One where
you actually think you have a chance of winning, and one
where you don't believe you actually have a chance of
winning. And I think your strategic behavior is different
in those two situations, and I would be much more likely to
throw in the kitchen sink, so to speak, if I thought there
was no chance of winning period. . . . [I]f you think that
you really do have a chance of winning, then you want to
maximize that chance by not throwing in the kitchen sink,
by focusing on what is . . . really at issue and not having
a strategy that goes in two different directions."
The defendant's trial counsel testified that he believed that in
this case, the defense of self-defense was a potentially winning
argument.
19
Strickland v. Washington, 466 U.S. 668, 690-691 (1984). I
conclude that the standard for constitutionally effective
assistance of counsel is not met where defense counsel, as a
matter of practice, declines to investigate or otherwise
consider the defendant's mental condition in circumstances where
an alternative viable defense is available. Regardless of the
strategic choice of a defense, counsel must engage in a rational
calculation of the need for and scope of an evaluation of the
defendant's mental condition.
We previously have held that the "[f]ailure to investigate
an insanity defense falls below the level of competence"
demanded of an attorney "if facts known to, or accessible to,
trial counsel raised a reasonable doubt as to the defendant's
mental condition." Commonwealth v. Roberio, 428 Mass. 278, 279-
280 (1998), quoting Commonwealth v. Doucette, 391 Mass. 443,
458-459 (1984). Here, it is undisputed that the defendant had a
psychiatric history and that defense counsel was aware of that
history. The defendant revealed to defense counsel some aspects
of his psychiatric history, which counsel described as
"significant." In addition, defense counsel was aware that
predecessor counsel had sought funds for a social worker to
develop a "social history [of the defendant] and screen for
mental illness." This information was sufficient to trigger an
obligation to at least consider an investigation of the
20
defendant's mental condition. Here, however, counsel
acknowledged a failure even to consider an investigation,
explaining that he categorically rejects a lack of criminal
responsibility defense, regardless of its merits, if any other
defense is available.16 The failure to do so, given the
available information suggesting that the defendant had a
substantial psychiatric history, did not meet this standard.
I do not believe that counsel is obligated to pursue a full
scale mental evaluation in every case where the facts or the
defendant's background suggest only a hint of a mental issue. I
conclude, however, that where counsel is aware of information
that may call into question the defendant's criminal
responsibility, he must first make a reasoned choice whether
further investigation is warranted. In this regard, I emphasize
the distinction between the facts of this case and Commonwealth
v. Kolenovic, 471 Mass. 664 (2015), where we declined to impose
on counsel a duty to investigate further the defendant's mental
condition. In Kolenovic, supra at 669-670, 678, counsel
arranged a preliminary psychiatric evaluation, but made an
informed strategic decision not to pursue the matter further.
16
At the hearing on the motion for new trial, counsel
testified as follows: "I remember [that the defendant]
mentioned [that] he had a significant psychiatric history [but]
I was not that interested in a psychiatric defense. And so, I
wasn't pressing him and asking for details and engaging him in
that conversation."
21
Counsel's failure in this case to take any steps to inform
himself of the defendant's mental condition rendered this aspect
of his representation ineffective.
As the defendant implicitly recognizes, a claim of
ineffective assistance of counsel that focuses on counsel's
asserted failure to investigate a lack of criminal
responsibility defense is generally, and perhaps necessarily,
linked to a claim that counsel was ineffective for not
presenting a lack of criminal responsibility defense at trial.
Thus, here, the defendant's ineffective assistance claim joins
the two: although he emphasizes counsel's failure to
investigate his mental condition, he also claims that counsel's
failure to present a "mental impairment" defense was deficient.
A defense attorney's duty in this respect is to exercise a
reasonable judgment in making the ultimate choice of the defense
to be presented at the trial, taking into account the array of
potentially viable defenses.
In my analysis of this issue, I assume, as the defendant
argues, that Dr. Paul Spiers's expert opinion would have been
available to counsel, if he had appropriately undertaken some
investigation of the defendant's mental health history before
trial. The question then posed is whether, after failing to
investigate a lack of criminal responsibility or mental
impairment defense, counsel's decision not to present an
22
available defense on that basis also was ineffective. Based on
this record, I am persuaded that, even assuming the availability
of a viable lack of criminal responsibility defense, counsel's
strategic choice to defend the case solely on a self-defense
theory was not manifestly unreasonable.17
This was not a case where defense counsel's strategic
decision left the defendant without any defense at all,
Commonwealth v. Haggerty, 400 Mass. 437, 441-442 (1987), and
there is no suggestion in the record or by appellate counsel in
argument that the alternative self-defense theory was not
supported by the facts or that it was not presented competently
by counsel. In the absence of any record support for a
conclusion that counsel irrationally pursued a defense that
lacked viability, I would not disturb an otherwise reasonable
strategic choice. It was eminently reasonable to consider,
regardless of the possibility of a favorable expert opinion that
the defendant lacked criminal responsibility, the inherent
difficulty in persuading a jury of the merits of that defense as
17
As we have said, the more favorable standard of review
articulated in Commonwealth v. Wright, 411 Mass. at 682, applies
where the defendant has been convicted of murder in the first
degree and asserts a claim of ineffective assistance of counsel.
Notwithstanding the more limited deference to counsel when the
defendant stands convicted of murder in the first degree, we may
still rely on the manifestly unreasonable test in Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974), to evaluate the claimed
inadequacy in counsel's performance.
23
a factor in the choice of a defense, and to reject this option
in favor of a defense deemed to be more acceptable to a jury.
See Commonwealth v. Spray, 467 Mass. 456, 473 (2014) ("a
decision not to pursue an insanity defense for tactical reasons,
for instance because in the circumstances the defense would be
factually weak, is not tantamount to ineffective assistance of
counsel"); Commonwealth v. Walker, 443 Mass. at 228 (affirming
denial of motion for new trial in part based on fact that
defense counsel's trial strategy of pursuing one defense, as
opposed to multiple defenses, was not manifestly unreasonable,
"especially where the mental health defense would have 'severely
weakened' the defense of self-defense"). In addition, as the
judge found, presenting both defenses would have been
pragmatically (although not legally) inconsistent. See
Commonwealth v. Walker, 443 Mass. at 226 (although mental health
defense and self-defense would not necessarily have been
incompatible, mental impairment defense "likely would have an
adverse impact on the claim of self-defense").
Applying the manifestly unreasonable test to counsel's
decision to forgo a lack of criminal responsibility defense in
the circumstances of this case, I cannot say that "lawyers of
ordinary training and skill" would not consider his strategic
choice to be competent. Thus, I conclude that counsel's
24
decision to forgo a lack of criminal responsibility defense on
this basis was not manifestly unreasonable.
Also, consistent with the view expressed in Commonwealth v.
Kolenovic, 471 Mass. at 678, I add that counsel was not
obligated to present a defense based on Dr. Spiers's expert
opinion that the defendant suffered from a mental impairment at
the time of the offense. Because we have recognized that "a
defendant's legal counsel is uniquely qualified to assess the
nuances that attend the development of the trial strategy,"
counsel reasonably may decline to accept the advice of a
retained expert. Id.
Last, the defendant's reliance on Commonwealth v. Federici,
427 Mass. 740 (1998), to advance the argument that he was
entitled to make the choice whether to present a mental
impairment defense and that counsel's strategic decision not to
do so constituted ineffective assistance of counsel, is
misplaced.18 In Federici, supra at 743-744, we determined only
that a defendant's choice to forgo an insanity defense is a
18
In Commonwealth v. Federici, 427 Mass. 740, 743-744
(1998), the defendant, at trial, personally opposed the judge's
proposal to instruct the jury on lack of criminal
responsibility, then argued on appeal that the judge erred in
failing to give that instruction despite the defendant's
objection. We concluded that, "[i]n the circumstances, the
judge had no obligation to do more and was entitled to rely on
the defendant's refusal to present a defense of insanity." Id.
at 746.
 25
constitutionally protected right. Our holding did not reach the
issue whether the defendant has an affirmative right to decide,
independently of counsel, to present that defense. Even if I
were to accept that view, the defendant would gain nothing by it
given the particular circumstances of this case. Contrary to
the defendant in Federici, the defendant expressed no wish or
choice on the subject of presenting or forgoing a lack of
criminal responsibility defense, and did not attempt to make any
decision on the matter. Also, as the record reflects, the
defendant steadfastly maintains that he will not present a
mental impairment defense even he is granted a new trial.19
The confluence of these factors persuades me that counsel's
strategic decision to forgo a defense of lack of criminal
responsibility was not manifestly unreasonable. Although I do
not reach the issue of prejudice in my analysis, I discern no
basis for concluding that counsel's strategic choices, even if
erroneous, created a substantial likelihood of a miscarriage of
justice where the evidence against the defendant was strong and
19
The defendant forcefully expressed his resolve not to
present a mental impairment defense at a new trial. In the
interview with the Commonwealth's expert, the defendant stated:
"No, I'm not going to do that, you mean insanity? . . . I'm not
a retard. I just have mental health history. I don't want to
go to Bridgewater. . . I know what it is to be NGI -- go to
Bridgewater and be forced to take medication and all that
stuff."
26
counsel ably defended the indictment. Commonwealth v. Wright,
411 Mass. at 682.
LENK, J. (concurring, with whom Gants, C.J., and Cordy, J.,
join). I agree with Justice Hines's conclusion that the
defendant is not entitled to relief on his motion for a new
trial based on ineffective assistance of counsel. I disagree
however, on the reasons for that conclusion. Justice Hines
rejects the defendant's motion because she determines that a
hypothetical strategic decision, which defense counsel never
actually made, was "not manifestly unreasonable." Ante at .
I believe that the "manifestly unreasonable" standard should
apply only when we are assessing the strategic decisions that
defense counsel actually made, and not imagined decisions that
counsel could have made.
The familiar test for a defendant's entitlement to relief
under G. L. c. 278, § 33E, set forth by this court in
Commonwealth v. Wright, 411 Mass 678, 682 (1992), has two parts.
The court asks "[1] whether there was an error in the course of
trial (by defense counsel, the prosecutor, or the judge), and,
[2] if there was, whether that error was likely to have
influenced the jury's conclusion." Id.
Justice Hines concludes that defense counsel's "failure
even to consider an investigation" into a potential lack of
criminal responsibility defense, "given the available
information suggesting that the defendant had a substantial
psychiatric history, did not meet th[e] standard" for effective
2
assistance of counsel. Ante at . I agree with that
determination. Then, however, instead of proceeding to the
second part of the analysis and asking whether counsel's error
was likely to have influenced the jury's conclusion, Justice
Hines reconstructs a hypothetical choice that counsel might have
made, had counsel completed an adequate investigation. She
"assume[s] . . . that Dr. Paul Spiers's expert opinion [that the
defendant lacked criminal responsibility for the killing] would
have been available to counsel, if he had appropriately
undertaken some investigation of the defendant's mental health
history before trial." Ante at . Concluding that, "even
assuming the availability of a viable lack of criminal
responsibility defense, counsel's strategic choice to defend the
case solely on a self-defense theory was not manifestly
unreasonable," she concludes that the defendant's convictions
should be affirmed. Ante at .
Our case law does not support this assessment of counsel's
strategic decisions in isolation from his constitutionally
inadequate investigation. On the contrary, we have held that
"strategic choices made after less than complete investigation
are reasonable [only] to the extent that reasonable professional
judgments support the limitation on investigation."
Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting
Strickland v. Washington, 466 U.S. 668, 690-691 (1984). In
3
making a judgment about whether the scope of an attorney's
investigation met the constitutional standard of effectiveness,
therefore, we are also invariably making a judgment about the
reasonableness of the attorney's strategic choices: counsel's
strategic choice here was unreasonable because it involved
deciding against a defense that counsel had done nothing to
investigate.
Furthermore, assessing defense counsel's strategic decision
in isolation from the inadequate investigation violates the rule
that we "evaluate the conduct from counsel's perspective at the
time." Strickland v. Washington, 466 U.S. at 689. See
Commonwealth v. Adams, 374 Mass. 722, 729 (1978) ("The test is
not to be made with the advantage of hindsight"). Normally this
rule operates to protect attorneys against the "distorting
effects of hindsight," and to combat the temptation "to second-
guess counsel's assistance after conviction or adverse
sentence." Strickland v. Washington, supra. Yet I see no
reason why it should not operate with the same force in cases
like this one, where the defense attorney's strategic choice is
unreasonable in light of the limited investigation on which it
was based. Id.
Finally, because we are not assessing the strategic choice
that counsel actually made, the "manifestly unreasonable"
standard is inappropriate. Justice Hines states that, despite
4
the "more favorable standard of review" for convictions of
murder in the first degree under G. L. c. 278, § 33E, "we may
still rely on the manifestly unreasonable test in Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974), to evaluate the claimed
inadequacy in counsel's performance." Ante at note 17. While I
agree that the "manifestly unreasonable" standard remains
applicable under § 33E review, that standard does not constitute
the general standard against which to measure any "claimed
inadequacy in counsel's performance." On the contrary, the
"manifestly unreasonable" standard is a special standard that
applies where the attorney's purportedly constitutionally
ineffective conduct involved a strategic decision, rather than
some other claimed inadequacy such as a lack of appropriate
investigation or preparation by defense counsel. Commonwealth
v. Martin, 427 Mass. 816, 822 (1998). We have emphasized that
the "manifestly unreasonable" standard is highly deferential.
Commonwealth v. Glover, 459 Mass. 836, 843 (2011). That
deference reflects the recognition that the "distorting effects
of hindsight," while always present in ineffective assistance of
counsel claims, are especially severe where the court is
assessing a trial strategy after it proved unsuccessful. See
Strickland v. Washington, 466 U.S. at 689. See also
Commonwealth v. Glover, supra.
5
The deference involved in the "manifestly unreasonable"
standard only makes sense if we are assessing the strategic
choice actually made by "fully informed [defense] counsel."
Commonwealth v. Adams, 374 Mass. at 728. Had defense counsel
here adequately investigated the defendant's psychiatric history
and then decided to forgo a lack of criminal responsibility
defense in favor of a self-defense theory, we would be hard
pressed to find that strategic decision manifestly unreasonable.
But that is not what happened. Instead, the choice that defense
counsel actually made was to elect a defense without even
investigating a lack of criminal responsibility defense. That
strategic decision was manifestly unreasonable, and I see no
reason why our assessment of its reasonableness should be any
different simply because we can imagine a different lawyer who,
after completing an adequate investigation into a lack of
criminal responsibility defense, might have opted against it.
To say that the court should assess only the strategic
decision that counsel actually made does not mean that we must
close our eyes to the weakness of the lack of criminal
responsibility defense that defense counsel failed to
investigate. The second part of the § 33E analysis requires the
court to ask "whether [the] error was likely to have influenced
the jury's conclusion." Commonwealth v. Wright, 411 Mass. at
682. And whereas, in determining whether there was an error by
6
defense counsel, we "evaluate the conduct from counsel's
perspective at the time," Strickland v. Washington, 466 U.S. at
689, the inquiry into whether the error was prejudicial, both
under § 33E review and otherwise, is expressly hypothetical.
Where the case comes to this court on § 33E review, we ask
whether "we are substantially confident that, if the error had
not been made, the jury verdict would have been the same."
Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting
Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass.
822 (2004).
In this case, I conclude that the defendant cannot make
that showing. The defendant has offered no evidence indicating
that he would have agreed to present a lack of criminal
responsibility defense at the time of the original trial, and
has clearly asserted that he would not present the defense at a
new trial. See Commonwealth v. Comita, 441 Mass. 86, 90 (2004).
Because, under Commonwealth v. Federici, 427 Mass. 740, 744-745
(1998), the decision to present a lack of criminal
responsibility defense lies solely with him, the absence of any
evidence indicating his willingness to present the defense
prevents him from establishing prejudice as a result of
counsel's failure to investigate such a defense.1
1
Even if the defendant had agreed to present a lack of
criminal responsibility defense, I would still question whether
7
My disagreement with Justice Hines's analysis of this issue
is not merely a technical quibble. On the contrary, I believe
that her expansion of the highly deferential "manifestly
unreasonable" standard beyond our evaluation of strategic
decisions that counsel actually made could have a significant
impact upon other cases, where the defendant is able to show an
error by counsel. Under that approach, a defendant's
ineffective assistance of counsel claim would fail whenever the
court can imagine a hypothetical lawyer who could have made a
considered strategic judgment to present the case in a certain
the failure to do so created a substantial likelihood of a
miscarriage of justice. Where a defendant moves for a new trial
based on ineffective assistance of counsel in failing adequately
to investigate a potential lack of criminal responsibility
defense, the judge may not deny the motion based on the judge's
own assessment of a potential expert's credibility or based on
the general observation that juries routinely reject lack of
criminal responsibility defenses. See Commonwealth v. Roberio,
428 Mass. 278, 281 n.5 (1998). Nevertheless, to prevail on such
a motion, the defendant must establish that "counsel's failure
to raise" a lack of criminal responsibility defense "was likely
to have influenced the jury's conclusion," thus requiring some
judicial assessment of the strength of the defense. Id. at 281.
Here I question whether a lack of criminal responsibility
defense would have been a substantial defense and see no
reasonable basis for thinking the outcome at trial likely would
have been different had the defense been offered. I come to
that view given the considerably less than compelling quality of
the proposed lack of criminal responsibility defense as
ultimately outlined by the defense expert and the diluting
effect of such a defense on the viable self-defense claim
actually presented at trial. These considerations are, of
course, the same factors that lead Justice Hines to determine
that the hypothetical strategic choice to forgo an ineffective
assistance of counsel defense was not manifestly unreasonable.
8
way, even if the court has already found that defense counsel's
actual decision did not reflect such a considered strategic
judgment. That approach significantly diminishes the force of
claims of ineffective assistance of counsel as protection
against wrongful or unfair convictions.