Commonwealth v. Holland

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-08737
COMMONWEALTH vs. DANIEL L. HOLLAND.
Norfolk. November 10, 2016. - April 19, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
Homicide. Armed Home Invasion. Constitutional Law, Assistance
of counsel, Fair trial. Practice, Criminal, Capital case,
Postconviction relief, Assistance of counsel, Fair trial,
Comment by judge. Mental Impairment. Insanity.
Indictments found and returned in the Superior Court
Department on November 18, 1998.
The cases were tried before Thomas E. Connolly, J., and
motions for a new trial, filed on April 3, 2006, and December
18, 2008, were heard by him.
Kevin S. Nixon for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
HINES, J. On October 13, 1998, the victim was shot to
death in her home. A jury convicted the defendant, the victim's
estranged husband, of murder in the first degree on the theories
of deliberate premeditation and extreme atrocity or cruelty, and
2
armed home invasion. The defendant appealed from his
convictions and from the denial of his two motions for a new
trial. In his brief on appeal, the defendant argues that the
trial judge erred in denying his first motion for a new trial on
the ground that his trial counsel was constitutionally
ineffective in failing to investigate and present a defense of
lack of criminal responsibility. We affirm his convictions as
well as the orders denying the motions for a new trial.
Background. 1. The trial. Based on the evidence adduced
at trial, the jury could have found the following facts. The
defendant and the victim were married in 1989, and their son was
born later that year. A few years later, the couple moved into
their family home, located in Quincy. As time progressed, the
marriage became turbulent and tension grew between the couple.
In February, 1998, the victim sought and was granted a
restraining order against the defendant, the terms of which
required him to vacate the marital home. For a number of
months, the defendant stayed with family or friends and later
moved into an apartment in the Dorchester section of Boston. In
September, 1998, the defendant and his then girl friend moved to
Richmond, New Hampshire, to live with the defendant's uncle.
On the afternoon of the day of the murder, the defendant
began drinking one hundred proof peppermint schnapps and
3
ingesting Elavil1, a prescription medication that the defendant
had found. Later that evening, the defendant purchased two
twelve packs of beer, and drove to a nearby bridge where he
drank the beers, smoked "crack" cocaine, and took more Elavil.
Next, the defendant drove to a bar just over the Massachusetts
border where he consumed more alcohol until the bartender
refused to serve him. After leaving the bar, he ingested more
Elavil and smoked crack cocaine and marijuana, before driving to
Quincy.
The defendant arrived the victim's home between
approximately 11:30 P.M. and midnight. He retrieved his golf
bag, containing golf clubs and a .22 caliber rifle, from the
trunk of his vehicle. The defendant had purchased the rifle and
.22 caliber ammunition a month or so before that night.2 Once on
the porch, the defendant dropped a can of beer and a straw, and
used the golf bag to break the front porch window of the home.
He entered and went up the stairs to the master bedroom where he
shot the victim with the rifle and beat her with the stock of
1
Elavil is an antidepressant prescription medication, which
has sedative effects.
2
When purchasing the rifle from a department store, the
defendant provided several false responses on the Bureau of
Alcohol, Tobacco, Firearms, and Explosives form that is required
to secure a firearm. He falsely indicated that he was neither
subject to a restraining order nor "under indictment or
information in any court" for which he could be imprisoned for
more than one year.
4
the rifle until it broke into pieces. At around 8:30 A.M. the
next day, the victim's eight year old son discovered his
mother's body in the bedroom.
The victim suffered gunshot wounds to her chest and
abdomen, multiple lacerations on her head caused by blunt force
trauma, and abrasions on her back. The cause of death was
multiple gunshot wounds.
Following the murder, the defendant drove back to his
uncle's home. The defendant spoke with his uncle briefly and
then got into bed with his girl friend. She noticed that his
hands were swollen and had cuts on them. The defendant
explained that he had been in a bar fight.
When the defendant and his girl friend awoke on the morning
of October 14, they packed an overnight bag for a trip to
Massachusetts, where they planned to go to a bank to get money,
possibly to leave town. The girl friend drove while the
defendant slept in the passenger seat. The two arrived in
Braintree at around 5 P.M., after the bank had closed.
After speaking to a longtime friend of the defendant who
did not want the pair to come to her house, the girl friend
attempted to hide the vehicle, and ultimately discovered that
the defendant's golf bag was missing from the trunk. When she
asked the defendant if he had killed the victim, he said he was
not sure, but that he remembered being on the porch of the
5
victim's home. After this conversation, the defendant and the
girl friend planned to go to Florida, where she had family. The
defendant ended up driving to Lawrence, where his cousin lived.
Shortly thereafter, the police arrived and arrested the
defendant. During a search of the defendant's vehicle, the
police found one live round of ammunition; a box of .22 caliber
ammunition; live rounds of .22 caliber ammunition in the pouch
of a sweatshirt; and full and empty beer cans that matched the
brand of beer the defendant had dropped on the porch.
At trial, the defendant testified and presented witnesses
in support of his mental impairment (diminished capacity)
defense.3 The defendant and his uncle testified extensively on
the defendant's drug and alcohol use, beginning when he was
thirteen years of age. In his later teen years, the defendant
was committed to the Department of Youth Services (DYS) because
of his increasing drug and alcohol use. Even after his release
from DYS custody, the defendant consistently used drugs and
alcohol until he was twenty-four or twenty-five years old. His
3
Although the mental impairment is often colloquially
referred to as "diminished capacity," it is well established
that "there is no 'diminished capacity' defense in this
Commonwealth." Commonwealth v. Companonio, 445 Mass. 39, 45 n.7
(2005), quoting Commonwealth v. Hardy, 426 Mass. 725, 729 n.5
(1998). However, "[i]n accordance with Commonwealth v. Gould,
380 Mass. 672, 673 (2005), a defendant 'may produce expert
testimony on the issue whether or not the impairment of his
mental processes precluded him from being able to deliberately
premeditate.'" Companonio, supra.
6
drug use abated for a period of time after meeting and marrying
the victim.
The defendant acknowledged that, in February, 1998, he had
to vacate the marital home because, following an argument, the
victim obtained a restraining order against him. After staying
with his parents for a few weeks, the defendant left their home
and moved in with friend who lived in New Hampshire. During
this time, the defendant used alcohol and drugs, including
cocaine, prescription pills, sleeping pills, mushrooms, and
marijuana. In March, 1998, after the defendant met and began
dating his girl friend, his drug use "got out of control." The
defendant's longtime friend testified that because of the
restraining order and issues concerning the custody of the
defendant's son, the defendant was "upset," "confused," and
"stressing out," and began drinking more heavily, partying, and
using crack cocaine and other drugs.
A few months after meeting his girl friend, the defendant
moved with her into an apartment in Dorchester. While living
there, the defendant's job performance began to suffer, and he
was referred to the Employee Assistance Program. According to
the program counsellor, the defendant appeared depressed, upset,
and emotional. Although the defendant admitted that he drank
some alcohol during the week, the defendant did not mention his
drug use.
7
The program counsellor referred the defendant to a
therapist, Dr. John D. Eckelman, who assisted the defendant in
obtaining paid stress leave from work. While on leave, the
defendant's drug use increased to the point where he was
drinking alcohol and using drugs all day. Although the
defendant was receiving his salary while on paid leave, he took
out a $20,000 loan against his retirement savings plan, using
the money to pay legal bills and rent for the Dorchester
apartment, and to purchase drugs.
In August, 1998, the defendant lost visitation rights with
his son and sunk deeper into drug and alcohol use. On August
31, 1998, the defendant went to a hospital emergency room, and
checked himself in to a detoxification facility known as NORCAP,
where he remained for approximately ten days. Shortly after
leaving the detoxification facility, however, the defendant
returned to his Dorchester apartment and resumed using drugs and
alcohol. He missed two appointments with his employee
assistance therapist. Although the defendant was supposed to
return to work in August, 1998, he failed to do so.
Throughout September, 1998, the defendant continued to use
drugs and alcohol in increasing amounts and contemplated
suicide. After exhausting his retirement loan funds, the
defendant was unable to pay rent and was evicted from his
apartment. The defendant and his girl friend moved in with the
8
defendant's uncle in Richmond, New Hampshire. There, the
defendant continued to use drugs: crack cocaine, Klonopin,
Valium, painkillers, and alcohol. According to the defendant's
uncle, the defendant was "pretty well burned out" and "loaded"
in the days leading up to the murder.
Dr. Robert H. Joss, the defendant's retained expert and a
forensic psychologist, opined that the defendant's drug and
alcohol use on the day of the murder impaired his "ability . . .
to carry out planful action" at that time. Joss added that the
level of drugs and alcohol ingested by the defendant that day
would have impaired his executive functioning, and would be
"consistent with [the defendant] suffering blackouts."
In rebuttal, the Commonwealth called Dr. John D. Eckelman,
the therapist to whom the defendant was referred by his employee
assistance counsellor. Eckelman testified that during their
sessions, the defendant discussed his marital issues and
admitted to feeling "very stressed and pressured" in his
relationship with the victim. Although the defendant admitted
to Dr. Eckelman that he drank during the week, the defendant
apparently did not mention drug use. The Commonwealth also
called Dr. Malcolm P. Rogers, a forensic psychiatrist with
expertise in the effects of drug and alcohol consumption on the
central nervous system. After interviewing the defendant and
reviewing relevant records, Dr. Rogers opined that the defendant
9
"did not have any significant cognitive deficits" on October 13,
1998, and that the defendant had the capacity to form the
specific intent kill the victim.
2. First motion for a new trial. In April, 2006, after
filing a timely notice of appeal in this court, the defendant
filed a motion for a new trial, claiming ineffective assistance
of counsel based on trial counsel's failure to "investigate or
develop a defense of lack of criminal responsibility stemming
from defendant's history of mental illness and from defendant's
drug and alcohol intoxication."4 We remanded the motion to the
Superior Court. Following a nonevidentiary hearing, the trial
judge denied the defendant's motion without specifically
addressing the merits of the ineffective assistance of counsel
claim.
Discussion. 1. Standard of review. Where a defendant has
been convicted of murder in the first degree, we review his
ineffective assistance of counsel claim under G. L. c. 278,
§ 33E, to determine whether counsel's action, or the failure to
act, 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.
4
The defendant filed a second motion for a new trial
claiming a violation of his Sixth Amendment right to a public
trial. He does not press the denial of this second motion for a
new trial in this appeal. Nonetheless, we have reviewed the
issue pursuant to our duty under G. L. c. 278, § 33E.
10
Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Wright, 411
Mass. 678, 681-682 (1992), S.C., 469 Mass. 447 (2014). We focus
more broadly on whether there was error, rather than on the
"adequacy of counsel's performance." Id. at 682. If there was
error, the defendant will meet his burden to establish a
"substantial likelihood of a miscarriage" of justice only if the
error "was likely to have influenced the jury's conclusion."
Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting
Commonwealth v. Wright, supra. "Where a new trial is sought
based on a claim of ineffective assistance of counsel, the
burden of proving ineffectiveness rests with the defendant."
Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting
Commonwealth v. Montez, 450 Mass. 736, 755 (2008).
2. Trial counsel's failure to investigate and develop a
lack of criminal responsibility defense. a. Failure to
investigate. The defendant recounts a litany of claimed lapses
in making the case that counsel failed to investigate the
possibility that at the time of the murder, the defendant
suffered from a mental illness that would support and compel a
lack of criminal responsibility defense. In particular, he
claims that counsel erred in failing to investigate (1) the
defendant's self-reporting of a diagnosis, made some seventeen
years earlier, of mental illness (schizophrenia) and "organic
brain abnormality"; (2) facts contained in the homicide
11
investigation reports suggesting that the defendant was mentally
ill;5 (3) a statement from his girl friend that the defendant, on
the day after the murder, told her "it had seemed like a bad
dream"; (4) the defendant's report to his investigator that he
was in a "dreamlike" state; (5) the defendant's statement to the
Commonwealth's examining psychiatrist that he remembered being
on the porch but he could not recall if it was a dream or
reality; (6) the defendant's statement during the competency
evaluation that he "hears screaming"; (7) a statement to the on-
call employee assistance therapist on August 31, 1998, that he
was having "crazy thoughts"; and (8) progress notes from the
Norfolk County jail where the defendant was being held pending
trial. These lapses, he argues, are of such moment that the
judge erred in denying his motion for a new trial. We disagree.
"Failure to investigate an insanity defense [falls] below
the level of competence demanded of attorneys, 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), S.C., 440 Mass. 245 (2003),
quoting Commonwealth v. Doucette, 391 Mass. 443, 458-459 (1984).
Thus, a duty to investigate an insanity defense arises when
counsel is aware of information suggesting at least the
5
The defendant does not specify, in his brief, the facts
upon which this contention is based.
12
viability of a lack of criminal responsibility defense.
Roberio, supra at 280. We consider next the information
available to trial counsel and whether counsel acted reasonably
in response to that information.
The defendant's assertion that he had a history of mental
illness that warranted further investigation is not borne out by
the record. What counsel knew from the defendant and others he
consulted during his preparation for trial was not of sufficient
clarity or certainty to create a "reasonable doubt as to the
defendant's mental condition." Roberio, 428 Mass. at 280. At
best, counsel was aware that the defendant believed that he
suffered from a mental illness. The only evidence of this
condition was the defendant's self-reporting and his uncle's
claim that he suffered from mental illness and an "organic brain
abnormality," both discovered when he was committed to DYS and
hospitalized seventeen years earlier. Even if the evidence had
established that the defendant suffered from psychotic episodes
or some other mental illness when he was an adolescent,
seventeen years prior to the murder, counsel had no basis to
assume a connection between his mental condition as a teenager
and his mental condition at the time of the murder. See
Commonwealth v. Walker, 443 Mass. 213, 225-226 (2005) (suicide
attempt and military discharge occurring thirteen years before
13
victim's killing insufficient to suggest potential insanity
defense).
In the motion for a new trial, the defendant claimed that
certain facts discovered during the homicide investigation
should have alerted counsel to the need to investigate a lack of
criminal responsibility defense. Because the defendant has not
informed us of those facts, we cannot determine whether, with
knowledge of those facts, counsel would be compelled to consider
the defense.
The statements from those persons in close contact with the
defendant, both before and after the murder, are scant evidence
that the defendant may have lacked criminal responsibility when
he killed the victim. These statements do not necessarily
signify mental illness. Instead, they may just as easily
manifest profound regret that a life has been taken in so brutal
a fashion.
Last, the defendant's reliance on progress notes from the
health services for the Norfolk County sheriff's office also
fails to advance his argument. The progress notes report that
the defendant was "quite anxious," had "excessive dwelling on
. . . problems," "low energy," "variable sleep," and "racing
thoughts on other problems."6 Similarly, a September, 1998,
6
Intake forms from the defendant's detoxification facility,
NORCAP, list a litany of symptoms as an option for "[c]hief
14
discharge summary from NORCAP noted that the facility's
psychiatrists thought the defendant had "dysthymia"7 and "some
mood swings," and prescribed an antidepressant medication. The
report also noted, "[m]ini mental normal," "[n]eurological
negative." Notably, the discharge summary discharge disposition
reflected only follow up with a primary care physician. As we
have stated previously, "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." Spray, 467
Mass. at 473.
Given the dearth of information suggesting even the
possibility of a viable lack of criminal responsibility defense,
we discern no basis to conclude that trial counsel was obliged
to embark on a futile journey into the realm of an insanity
defense. See Commonwealth v. Lang, 473 Mass. 1, 15 (2015)
(Hines, J., concurring) (rejecting proposition that defense
counsel must "pursue a full scale mental evaluation in every
[c]omplaint," including but not limited to hallucinations,
delusions, severe agitation, manic behavior, and bizarre
behavior, but only "depression," "ETOH dependence," and "drug
dependence" were marked for the defendant.
7
Dysthymia is mild depression or a chronic, more persistent
depression that is not of the same severity as a major
depression.
15
case where the facts or the defendant's background suggests only
a hint of a mental issue").
Even if counsel was obligated to investigate the
defendant's mental history, trial counsel was not culpably
derelict in handling the issue of the defendant's mental
condition at the time of the murder. Leading up to the trial,
the defendant was represented by three different attorneys.
Although these attorneys, both retained and appointed, did not
do all that the defendant demanded, they took appropriate and
necessary steps to investigate the defendant's mental history
and the possibility of a lack of criminal responsibility
defense. See Commonwealth v. Candelario, 446 Mass. 847, 857-858
(2006). Trial counsel had the benefit of these efforts in
preparing the defense offered at trial.
The defendant's first attorney retained Dr. Harold R.
Rosenblatt, a specialist in internal medicine and addiction
medication at the Spaulding Rehabilitation Hospital, to assess
the impact that drugs and alcohol may have had on the
defendant's mental state at the time of the murder. Although
privately retained, this attorney also filed a motion for funds
for electroencephalogram (EEG) and computerized tomography (CT)
testing of the defendant's brain functioning. Dr. Rosenblatt
did not testify at trial, but the first attorney's pretrial
disclosure indicated that Dr. Rosenblatt was prepared to opine
16
on the effect of drugs and alcohol on the defendant's ability to
form a specific intent to kill.
The defendant's second attorney requested and received
authorization from the trial court judge to retain a
psychiatrist to examine the defendant.8 Prior to his withdrawal
from the case,9 this attorney, at the defendant's insistence,
also filed a motion for funds to hire a neurologist to evaluate
the defendant for his claimed "brain abnormality." In
advocating for the testing, defense counsel explained that
although no medical professional recommended the testing, he
sought funds because "[the defendant] feels and strongly
suspects that he suffers from a brain abnormality, which if
[sic] could be explored and shown to be true would then allow a
him a full-blown insanity defense." Noting that the defendant
8
Although the judge allowed the defendant's motion in the
amount of $5,000 in October, 2000, defense counsel represented
to the judge that the funds allotted were insufficient to hire a
psychiatrist. This attorney, who was personally selected by the
defendant for appointment by the court, withdrew from the case
after the defendant represented to the judge that the
relationship had broken down over the defense of the case.
9
The defendant filed an oral motion to "discharge" his
attorney due to a "breakdown of [the attorney-client
relationship] with regard [the defendant's] defense." The
attorney assisting the defendant's second defense attorney
stated that he was in communication with forensic psychologist
Dr. Robert Joss and a neuropsychologist to explore the impact
that prolonged substance abuse may have had on the defendant's
brain, but did not move forward with the process because he was
not primary counsel on the case. After several disruptions by
the defendant, the judge granted defense counsel's motion to
withdraw.
17
presented no evidence (medical or otherwise), beyond his own
belief, that he suffered from an brain abnormality, the judge
denied the motion.
In December, 2000, the judge appointed the third attorney,
who eventually tried the case. At counsel's urging, the judge
ordered the defendant to undergo EEG testing and a CT scan.
Neither test yielded abnormal results. Beyond these tests,
trial counsel also took steps to have the defendant evaluated to
determine whether he was competent to stand trial. A few days
before the defendant's scheduled trial date, trial counsel filed
a motion for a competency evaluation pursuant to G. L. c. 123,
§ 15, and, in "an exercise of extreme caution," the judge
granted the motion.
After evaluating the defendant, the director of forensic
services at Bridgewater State Hospital determined that the
defendant was not suffering from a major mental illness and that
he was competent to stand trial. Other tests suggested that the
defendant was possibly "exaggerat[ing] or malingering."10 This
doctor noted:
"In my opinion, [the defendant's] behavioral
outbursts, bouts of uncooperativeness with attorneys,
insistency that his wife is not dead, and rigidity and
10
Indeed, while awaiting trial in pretrial detention, the
defendant told his girl friend during telephone conversations
that if he went to Bridgewater State Hospital, it would be
"easier," the food would be better, and he would be able to give
her a hug.
18
stubbornness about these issue[s] make him [a] problematic
defendant, but not an incompetent one. His difficulties
are not born of a mental illness or mental defect, but
rather reflect a man who is desperately trying to avoid
reality, of which he is well aware."
Following a hearing on competency, the judge found the defendant
competent to stand trial.
Considering the totality of the information available to
counsel, the record is devoid of evidence that even remotely
suggests a more comprehensive investigation would have revealed
evidence supporting an insanity defense. See Walker, 443 Mass.
at 225-226. Accordingly, trial counsel's decision to forgo
further investigation of a lack of criminal responsibility
defense based on mental illness was not error.
In his motion for a new trial, the defendant argued that he
was prejudiced by counsel's failure to investigate the
information that counsel would have discovered if the claimed
lapses had not occurred. Rather than showing prejudice,
however, this information shows that it would not have made a
difference in the viability of a lack of criminal responsibility
defense. A July, 1981, DYS psychiatric evaluation noted that
the defendant described "recurrent experience of
depersonalization" and "paranoid delusions," but also noted that
the defendant's "[r]eality testing was intact and there were no
indications of thought disorder." Although the evaluation
concludes that the defendant was "bordering on psychotic
19
decompensation" and recommended that he undergo further
psychiatric treatment, nothing in the evaluation suggests that
the defendant was ever diagnosed with a mental illness.
Similarly, absent from the September, 1981, follow up DYS report
detailing the defendant's treatment plan is the suggestion that
the defendant suffered from a mental illness.
The defendant also points to certain DYS records indicating
that he was an inpatient at a hospital in August, 1981.11 In his
affidavit, the defendant asserts that the EEG test administered
at the hospital he was sent to by DYS "indicated possible
schizophrenia." However, as is clear from Dr. Joss's affidavit,
EEG testing will not show schizophrenia. Therefore, the records
would have provided little if any insight into whether the
defendant suffered from such a mental illness, evidence that
could have triggered an obligation to further investigate the
issue. See Roberio, 428 Mass. at 279-280.
The defendant's reliance on seventeen year old DYS and
related hospital records is not persuasive. At most, the
records reflect only a suggestion that the defendant may have
suffered from a mental illness as an adolescent. The defendant
was thirty-four at the time of the murder. Moreover, the
defendant's EEG and CT scans showed no abnormalities. Beyond
11
Although this hospital confirmed that the defendant was
an inpatient, the facility was unable to locate his charts.
20
indicating that the defendant appeared to exhibit signs of
depression and to be upset, tired, and emotional, neither the
employee assistance counsellor nor Dr. Eckelman's testimony
suggested that the defendant was suffering from a mental
illness.
3. Reasonableness of trial counsel's strategic decision.
Where the claimed ineffectiveness is the result of a tactical
decision of counsel, the defendant will prevail only if he
demonstrates that counsel's tactical choice was "manifestly
unreasonable" (citation omitted). Kolenovic, 471 Mass. at 674.
As a threshold matter, we do not doubt that trial counsel's
decision to forgo a lack of criminal responsibility defense in
favor of a mental impairment defense was a tactical choice. In
January, 2001, trial counsel filed a notice of intent to present
an insanity defense. However, at trial, counsel noted, "I
deliberately stayed as far away from the issue of insanity as I
could" because "I do not know if I have it," and eventually
chose to withdraw that defense.
Based on what we have said about the lack of evidentiary
support for a lack of criminal responsibility defense, we are
persuaded that counsel's strategic decision was not manifestly
unreasonable. "[A] decision not to pursue an insanity defense
for tactical reasons . . . is not tantamount to ineffective
assistance of counsel." Spray, 467 Mass. at 473.
21
Two principles guide the "manifestly unreasonable" test.
First, "we evaluate the [strategic or tactical] decision at the
time it was made, and make 'every effort . . . to eliminate the
distorting effects of hindsight.'" Commonwealth v. Glover, 459
Mass. 836, 843 (2011), quoting Commonwealth v. Fenton F., 442
Mass. 31, 38 (2004). Second, "[s]ubstantively, [o]nly strategy
and tactics which lawyers of ordinary training and skill in
criminal law would not consider competent are manifestly
unreasonable" (quotations omitted). Kolenovic, 471 Mass. at
674, quoting Commonwealth v. Pillai, 445 Mass. 175, 186-187
(2005).
Although there was little evidence that the defendant
suffered from a mental illness at the time of the murder, there
was substantial evidence of the defendant's alcohol and drug
use. Defense counsel had information from the defendant, a
close relative, and close friends regarding his history of drug
and alcohol use. Trial counsel also had access to records from
the defendant's stay at NORCAP and from the counselling sessions
with Dr. Eckelman. Indeed, other than a mental impairment
defense based on the defendant's drug and alcohol use, counsel
had no other option.
As we have stated, "reasonableness does not demand
perfection." Kolenovic, 471 Mass. at 674. Rather, "the
manifestly unreasonable test . . . is essentially a search for
22
rationality in counsel's strategic decisions, taking into
account all the circumstances known or that should have been
known to counsel in the exercise of his duty to provide
effective representation." Id. at 674-675. "The deference we
give to defense counsel's strategic judgment in determining
whether it was manifestly unreasonable reflects the strong
presumption that counsel knows best how to defend a client."
Glover, 459 Mass. at 843. Although trial counsel's strategic
choice failed to yield a favorable disposition for the
defendant, nevertheless, we cannot conclude that it was
manifestly unreasonable or inconsistent with what "'lawyers of
ordinary training and skill in criminal law' would deem to be
competent." Kolenovic, 471 Mass. at 675, quoting Pillai, 445
Mass. at 186-187.
4. Relief pursuant to G. L. c. 278, § 33E. In his appeal,
the defendant raises only the ineffective assistance of counsel
claim discussed above. Nevertheless, pursuant to our
obligations under G. L. c. 278, § 33E, we examine the "whole
case for its consideration of the law and the evidence." G. L.
c. 278, § 33E. See Commonwealth v. Brown, 376 Mass. 156, 166-
167 (1978).
a. Ineffective assistance of counsel in the presentation
of the mental impairment defense. Although the defendant did
not argue in his motion for a new trial that counsel's
23
presentation of the mental impairment defense based on drug and
alcohol use was inadequate, he asserts the point indirectly in
this appeal from the denial of the first motion for new trial.
Nonetheless, we consider the issue in our G. L. c. 278, § 33E,
review in which the inquiry is whether counsel's performance in
presenting the mental impairment defense resulted in a
substantial likelihood of a miscarriage of justice.
We conclude that the defendant has failed to demonstrate
that better preparation of the mental impairment defense would
have produced more persuasive testimony from Dr. Joss or more
convincing evidence of mental impairment. In analyzing defense
counsel's presentation of the defense of mental impairment, we
"evaluate the conduct from counsel's perspective at the time."
Lang, 473 Mass. at 21 (Lenk, J., concurring), quoting Strickland
v. Washington, 466 U.S. 668, 689 (1984).
At trial, defense counsel presented the testimony of the
defendant's uncle, with whom the defendant lived prior to the
murder, and the defendant's longtime friend, both of whom
testified to the defendant's extensive and consistent history of
drug and alcohol use. Trial counsel also vigorously cross-
examined the defendant's girl friend regarding the defendant's
history of drug and alcohol use. Additionally, the defendant
testified at length to his drug and alcohol use both
historically and on the day of the victim's killing.
24
Beyond the defendant's testimony and the testimony of the
lay witnesses, trial counsel introduced expert testimony from
Dr. Joss, a forensic psychologist experienced in evaluating
individuals in the area of criminal responsibility and
competency to stand trial. In support of his claim of
ineffective assistance of counsel, the defendant points out that
defense counsel waited until after trial had begun to contact
Dr. Joss and failed to provide him pertinent written records.
Further, the defendant notes that Dr. Joss interviewed him a
mere four days before Dr. Joss testified. Although we are
troubled by trial counsel's unorthodox approach of preparing Dr.
Joss for trial at what can unarguably be described as the
eleventh hour, ultimately the issue is not what it took to
accomplish the task but whether it was accomplished.
Notwithstanding trial counsel's ill-advised timing with respect
to contacting Dr. Joss, the testimony as to the defendant's
mental impairment on the day of the murder was adequate for its
purpose.
Dr. Joss opined that, based on the various substances that
the defendant ingested, including large quantities of alcohol,
prescription medications, crack cocaine, and marijuana, the
defendant was "impaired in his ability to plan [and] to carry
out planful action" on October 13, 1998. Moreover, Dr. Joss
opined that the amount of drugs and alcohol the defendant
25
ingested on the night of the victim's killing was "consistent
with suffering blackouts." Importantly, Joss explained to the
jury the difference between the effect of drugs and alcohol on
cognitive function versus motor function, a topic on which the
Commonwealth focused in its cross-examination. Specifically, he
explained that a person may be able to maintain motor
coordination "reasonably well," yet be deficient in other
aspects of cognitive function. Thus, Dr. Joss opined that
although a person's mental state may be impaired, he may still
retain the physical coordination to move or travel.
To arrive at his opinion Dr. Joss interviewed the defendant
for ninety minutes and examined myriad written materials,
including the defendant's thirty-one page narrative of his drug
and alcohol abuse throughout his life, Dr. Rogers's two
evaluations, records from a "private, live-in school" where the
defendant resided for a period of time as an adolescent, and
medical records from the defendant's visit to a hospital
emergency room visit in August, 1998. Moreover, the record
suggests that even though trial counsel did not ultimately
secure Dr. Joss as an expert until midtrial, trial counsel had
been in contact with Joss well before the trial commenced.12
12
In fact, Dr. Joss was among the specialists with whom the
defendant's second set of trial counsel communicated in order to
explore the issue whether the defendant suffered from an organic
26
Given Dr. Joss's testimony as to the defendant's mental
state at the time of the victim's killing, along with the
extensive lay witness testimony as to the defendant's use of
drugs and alcohol, we conclude that trial counsel's preparation
and presentation of the mental impairment defense was not
inadequate such that it was likely to have influenced the jury's
verdict.
b. Closed court room. We have considered the issue raised
in the defendant's second motion for a new trial and "conclude
that the motion judge properly determined that the defendant had
not borne his burden of demonstrating that the court room was
closed during any portion of the jury selection, because the
defendant offered no evidence indicating that the court room was
closed by any specific order or that court officers ever told
anyone to leave." Commonwealth v. Drayton, 473 Mass. 23, 31
(2015). Moreover, the defendant failed to object to the alleged
court room closure during trial and declined to raise the issue
on direct appeal, therefore it is deemed procedurally waived.
See Commonwealth v. Penn, 472 Mass. 610, 622 (2015), cert.
denied, 136 S. Ct. 1656 (2016), quoting Commonwealth v.
LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct.
317 (2015).
brain syndrome due to a period of prolonged substance abuse.
See note 9, supra.
27
c. The trial judge's comments to defense counsel. We also
briefly address the trial judge's interactions with defense
counsel in the presence of the jury. On two occasions the judge
made comments during trial that, according to defense counsel,
suggested to the jury that the judge had an opinion in the case
or negatively characterized defense counsel's behavior. As we
have stated, "a judge need take no vow of silence. He is there
to see that justice is done, or at least to see that the jury
have a fair chance to do justice. . . . The judge ought not let
the jury be diverted from the real issue" (citation omitted).
Commonwealth v. Haley, 363 Mass. 513, 519 (1973). Based on our
review of the transcript, we conclude that the trial judge
adequately "[trod] the narrow path that lies between
meddlesomeness . . . and ineffectiveness" (citation omitted).
Id. at 519. Throughout the trial, the judge was generally
respectful and patient with both parties, reserving most
colloquies between the parties and the court for sidebar.
Although the judge may have gently rebuked defense counsel on
occasion, we conclude that the comments did not create a
substantial likelihood of a miscarriage of justice. See id. at
521 ("A judge may warn or rebuke counsel in a proper case").
Moreover, in an abundance of caution, the judge twice gave
28
curative instructions reminding the jury that he was neutral on
the issue and had no opinion regarding the facts of the case.13
Conclusion. Having reviewed the entire record and the
briefs on appeal, we see no reason to reduce the verdict or
grant a new trial. Accordingly, we affirm the defendant's
convictions and the orders denying his motions for a new trial.
So ordered.
13
The trial judge instructed, "If I have said or done
anything to cause you to believe that I have any opinion
concerning the facts in this case, you are mistaken because I am
totally neutral on this issue. It is your decision, not mine,
to determine whether the Commonwealth has met its burden of
proof."