454 Mass. 721 | Mass. | 2009
On the afternoon of January 31, 2002, Nancy Hensley was found dead in the basement of her home in the East Boston section of Boston. She had been strangled to death with a necktie. Her husband, Kevin Hensley, was indicted for the murder, and, after a five-day jury trial, was found guilty of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, Hensley filed a motion for a new trial, alleging ineffective assistance of counsel. The motion was denied. The appeal from the denial was consolidated with his direct appeal.
Hensley argues that he was denied the right to a fair and impartial tribunal with respect to his motion to suppress; that it was error to admit in evidence the testimony of a medical examiner who neither performed nor attended the victim’s autopsy; and that the evidence at trial was insufficient to support his conviction under the theory of extreme atrocity or cruelty. He also contends that his trial counsel was ineffective in failing to present expert testimony and medical records at the suppression hearing and at trial, and in failing to raise the issue of police deception when Hensley was interrogated shortly after his suicide attempt. Finally, Hensley claims that the denial of full funding for an • expert witness to assist in his motion for a new trial was erroneous. We affirm the conviction, affirm the order denying his motion for a new trial, and decline to grant relief under G. L. c. 278, 33E.
1. Trial. The jury could have found the following facts. Kevin and the victim were married in 1979, and had four children. By January, 2002, the Hensleys were experiencing marital problems. They argued about whether the victim was spending enough time at home and whether she was spending too much time at a local gym, possibly in the company of another man. Convinced that the victim was spending time with other men, Hensley on one occasion disguised himself in a fake beard and watched the
Thereafter, on January 9,2002, the victim obtained a temporary abuse prevention order against Hensley and filed a complaint for divorce. The abuse prevention order required Hensley to leave immediately and stay away from the family’s home at 198 Byron Street. The order also gave the victim custody of the couple’s four children and prohibited Hensley from contacting the children pending a further hearing. The temporary restraining order expired at 4 p.m. on January 16, 2002, and a hearing was set for that date.
On the day of the hearing, Hensley and the victim entered into an agreement that was entered as a temporary order in the divorce proceeding. Hensley agreed that except for visitation exchanges he would remain away from the marital home. Hensley and the victim agreed that she would have the use of the family’s 2000 Buick LeSabre automobile until the next court hearing. They also agreed that Hensley could enter the marital home that day, January 16, to retrieve his personal belongings, in the presence of a police officer. Finally, they agreed that their children would remain in the victim’s care until the next court hearing, but that Hensley could have reasonable visitation if arranged twenty-four hours in advance.
After Hensley was served with the initial abuse prevention order, he began living at the Winthrop home of his sister. During the weeks that followed, Hensley’s family members, friends, and his supervisor at work noticed that he appeared to be depressed and distraught about the breakup of his marriage, especially the loss of custody of his children. He became despondent, and separately confided to two close friends that if he lost custody of his children he would kill the victim and kill himself.
On January 22, 2002, the victim filed a complaint for contempt in the Probate and Family Court alleging that Hensley was not upholding their January 16 agreement.
On January 31, Hensley reported to work with the Boston transportation department’s “tow and hold” unit at 6:30 a.m. At approximately 8 a.m., after having towed one vehicle, Hensley told his supervisor that he was not “feeling right” and asked if he could use some vacation time and go home. Hensley drove to his sister’s home, where he stayed for a brief period of time, and then continued on to 198 Byron Street.
When he arrived at Byron Street, Hensley parked his automobile around the comer, out of view from the house. Hensley was next seen leaving the house at about 11:45 a.m. He left in the family’s Buick LeSabre automobile.
Later that afternoon, Hensley’s eldest daughter arrived home from school. As she entered the kitchen, she noticed that a blanket that was kept in front of the back door to keep the draft out had been moved away. Everything that had been in front of that door was moved away “like someone had used it.” The dead bolt, which was usually locked, was unlocked. She also noticed that the comforter was not on the bed in her mother’s' room. After doing some homework, she went to the basement to get something to drink. Noticing the door to the bathroom in the basement was closed, she opened the door and discovered her mother lying on the floor under the comforter from the bedroom. She telephoned 911.
Sergeant Detective Daniel J. Coleman of the Boston police department’s homicide unit supervised the investigation of the victim’s death.
As the investigation into the death was proceeding, Hensley drove the Buick LeSabre automobile to New Hampshire, parked in a lot at the Waterville Valley ski area, and tried to asphyxiate himself by running a dryer vent hose into the vehicle from the exhaust pipe. His attempt proved unsuccessful, however, when at approximately 9 p.m., New Hampshire police officers and emergency personnel pulled him out of the vehicle and brought him to Speare Memorial Hospital (hospital) in Plymouth, New Hampshire.
At approximately 11:30 p.m., Sergeant Bret J. Beausoleil of the New Hampshire State police was informed that Hensley was the subject of an attempted suicide and a suspect in a homicide in Boston, and that the authorities in Massachusetts wanted the New Hampshire State police to interview Hensley if possible. Sergeant Beausoleil drove to the hospital, where he met with New Hampshire State Trooper Scot Bryan, Grafton County Attorney Kenneth Anderson, and emergency room physician Dr. John Eppolito. A decision was made to hold Hensley on an “involuntary emergency hospitalization” (EEH) due to his suicide attempt.
At 1:11 a.m. on February 1, 2002, after a telephone conversation with Sergeant Detective Coleman, Sergeant Beausoleil and Trooper Bryan met with Hensley in a hospital waiting room. Sergeant Beausoleil read Hensley the Miranda warnings while he followed along on a printed waiver form. Hensley initialed and signed the waiver form, indicating that he understood his rights and was willing to answer questions. When asked whether he was under the influence of alcohol, illegal drugs, or medication, Hensley said that he had been on Klonopin and Celexa for the previous couple of months, but he had stopped taking those medications about one month earlier. Hensley also explained that he had been seeing a doctor in East Boston for depression. Hensley explained that he had not used any alcohol or illegal drugs, but that he had taken a bottle of sleeping pills.
Sergeant Beausoleil then questioned Hensley about his activities on January 31, 2002, up to the point at which he was found
At 2:09 a.m., Sergeant Beausoleil stopped the interview and contacted Sergeant Detective Coleman. Sergeant Beausoleil then informed Hensley that his daughter had found the victim dead. Hensley said, “My wife. What are my kids going to do? I can’t live no more. What are they going to do without a mother and father?” Shortly thereafter, Hensley asked for aspirin and as a nurse gave it to him, Hensley moved from a laying position on the couch to a kneeling position on the floor in front of the couch. Sergeant Beausoleil noticed that Hensley’s hand was shaking as he took the aspirin. When Hensley was asked whether he had ever threatened to harm his wife to any of his friends, Hensley said, “I couldn’t have said that, I don’t believe I said that.” The interview ended at about 2:51 a.m. About thirty minutes later, Sergeant Beausoleil learned from Sergeant Detective Coleman that a warrant was in effect for Hensley’s arrest. As a result, Hensley was transported to the Grafton County jail, and Sergeant Beausoleil took possession of the clothing Hensley was wearing on admission to the hospital.
Dr. William Zane from the Massachusetts medical examiner’s office performed an autopsy on the victim’s body on February 1, 2002. Dr. Zane was scheduled to testify at Hensley’s trial, but he was unavailable on the date of his expected testimony. In his place, the Commonwealth called Dr. Mark Flomenbaum, the chief medical examiner of the office of the chief medical examiner at the time of trial. As further described below, he testified regarding the cause and manner of the victim’s death
Hensley’s defense was one of mental impairment, focused primarily on persuading the jury that he was incapable of forming the mental states required for murder in the first degree under the theories of deliberate premeditation or extreme atrocity or cruelty. Although Hensley did not testify at trial, trial counsel elicited substantial evidence in support of that defense.
Hensley’s sister, Denise Hagemeister, testified about Hensley’s character and his demeanor both before and after the initial abuse prevention order. She testified that Hensley was a “wonderful man, he’s a wonderful father, brother and son to my parents. Very, very close to his children. His children were his life, basically.” When Hensley was served with the initial abuse prevention order, he went to Hagemeister’s house and was “basically hysterical, crying and . . . upset.” Between that time and the victim’s death, Hagemeister saw Hensley for several hours daily, during which time he cried, was “depressed,” “[hjysterical,” and “despondent.” Hagemeister described her brother as “a different person,” explaining that “[i]t was like night and day.” Hensley stopped showering, he was not eating or sleeping, and he lost weight. Hagemeister testified that Hensley “basically fell apart.” Hagemeister also testified that she was concerned about Hensley’s health because he was “very unstable,” “depressed,” and “didn’t want to live any more.” Finally, Hagemeister stated that Hensley “cried constantly” and was “[cjonstantly wringing his hands and pacing and [was] incoherent. He would . . . just talk incoherently and didn’t make any sense 99
Through cross-examination of the Commonwealth’s witnesses, including Hensley’s family, friends, and work supervisor, trial counsel elicited further testimony about Hensley’s mental health issues, highlighting the change in Hensley’s demeanor and behavior after the initial abuse prevention order. For example, Hensley’s daughter described her father as having a “nervous breakdown” the first time she saw him after he moved out of the house. She testified that he “kept crying” and she did not think he was eating because he had lost weight. She also testified that her father could not talk much because he was crying a lot and shaking; that he had stopped taking prescription Celexa
During his closing argument, trial counsel described the stark difference between Hensley’s mental and physical condition before and after the abuse prevention order, as “the focal point of the case”: a case “about the downfall of a man who feared that he was losing his kids.” He reminded the jury that Hensley suffered from depression even before the abuse prevention order and argued that it had gotten worse; that Hensley was suicidal; and that the jury had heard “compelling evidence of mental impairment,” affecting his “state of mind, the intent.” Counsel urged the jury to conclude that Hensley was not capable of deliberate premeditation; that he only planned to kill himself on January 31, 2002, but “snapped” when he encountered his wife at 198 Byron Street; and that he should be found guilty only of murder in the second degree.
Counsel argued further that the Commonwealth failed to prove that the murder was extremely atrocious or cruel because that theory of murder relied on Dr. Flomenbaum’s testimony regarding the length of time it took the victim to die and the nature of the struggle that led to her death. He characterized that testimony as “wholly lacking, wholly insufficient, and not worthy of crediting,” and reminded the jury that Dr. Flomenbaum did not perform the autopsy or write the report, did not go the scene or view the interior of the house in another way, and that his sole preparation to testify occurred the morning of his testimony.
2. Discussion, a. Motion to suppress. Before trial, Hensley moved to suppress the statements he made to the New Hampshire State police and any evidence seized at the time of the interrogation and his arrest.
On the basis of his findings, all of which are supported in the testimony, the motion judge concluded that “[ajlthough [Hensley] was tired and upset about what had happened in his life and what he had done, I am convinced beyond a reasonable doubt that he fully understood his Miranda warnings and made a knowing, intelligent and voluntary waiver of those rights.” The judge also found that Hensley understood that he was in custody under the IEH protocol, and concluded that this custody was lawful. The judge inferred that Hensley “wanted to speak with the officers and tell them his feelings and his version of the events. He did feel some genuine remorse about what had happened and he wanted to talk with the officers about this, even though he did not make a full confession.” The judge noted that at no time did Hensley express a wish to stop talking with the officers, even though he was advised orally and in writing that he could do so at any time. The judge found that Hensley was an intelligent man who had no difficulty understanding the Miranda warnings and that the officers were calm and professional and exhibited no threatening or coercive conduct toward him. In sum, the judge found that Hensley’s weariness and his mental and emotional distress did not deprive him of the ability to make a knowing, intelligent, and voluntary waiver of his Miranda rights, or a voluntary statement. Therefore, the judge concluded that Hensley’s waiver and his statements were validly obtained and denied his motion to suppress the statements.
Hensley argues on appeal that the decision denying his motion to suppress violated his constitutional right to a fair and impartial tribunal and was based on subsidiary facts unsupported in the record.
“In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The Commonwealth bears the burden of proving beyond a reasonable doubt that a Miranda waiver was made voluntarily, knowingly, and intelligently. Commonwealth v. Jones, 439 Mass. 249, 256 (2003). The Commonwealth also bears the burden to prove beyond a reasonable doubt that the statements were made voluntarily. Id. “Although the validity of a defendant’s Miranda waiver and the voluntariness of his statements are separate inquiries, we use a totality of the circumstances test for both.” Id. at 257. Both the Federal and Massachusetts Constitutions guarantee a criminal defendant’s right to a fair hearing before an impartial tribunal. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases”); art. 29 of the Massachusetts Declaration of Rights (“It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit”).
There is no merit to Hensley’s claim that he did not receive a hearing before a fair and impartial tribunal. Nothing in the record supports Hensley’s claim that the judge improperly prejudged Hensley’s guilt. Rather, the judge found facts and drew reasonable inferences based on Sergeant Beausoleil’s testimony. The judge’s reference to “what [Hensley] had done” may have simply been a reference to the suicide attempt, and not to his wife’s murder. Even if the reference was to his wife’s murder, the
b. Dr. Flomenbaum’s testimony. Dr. Flomenbaum testified that he was the chief medical examiner in Massachusetts, and that he had previously spent fourteen years working in the New York City medical examiner’s office, where he became deputy chief medical examiner. Dr. Flomenbaum explained the function of the medical examiner’s office and testified to his education, experience, and qualifications in the field of forensic pathology. He then explained the autopsy process, including the external and internal examination of the body and its organs, the documentation of that process, and the ultimate objective of the pathologist to render an opinion as to the cause of death.
Dr. Flombenbaum testified that Dr. William Zane performed the autopsy on February 1, 2002, and prepared an autopsy report. Dr. Flomenbaum indicated that he had Dr. Zane’s autopsy report with him on the witness stand to refer to if necessary, and that before testifying, he reviewed Dr. Zane’s autopsy report and supporting materials, including Dr. Zane’s notes and photographs of the victim’s body.
Based on his review of these materials, Dr. Flomenbaum opined that the cause of death was “ligature strangulation,” the “mechanism” being not so much “loss of air” as “blood starvation to the brain.” Dr. Flomenbaum’s opinion as to the cause of the victim’s death was not contested at the trial.
Dr. Flomenbaum also testified on direct examination to many
Hensley argues that the admission of Dr. Flomenbaum’s testimony regarding the cause of the victim’s death and the findings of Dr. Zane was both constitutional error, see Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (confrontation clause prohibits admission of testimonial out-of-court statements unless declarant unavailable and defendant had prior opportunity to cross-examine declarant about statements), and violative of the Massachusetts law of evidence, see Commonwealth v. Markvart, 437 Mass. 331, 338 (2002) (“expert’s direct examination may not be used to put before the jury facts that are not [and will not be] properly in evidence”). We conclude that while there may have been error in the admission of some of Dr. Flomenbaum’s testimony, reversal of the conviction is not warranted.
First, there was no error in admitting the testimony of Dr. Flomenbaum regarding his opinion as to the cause of death. Dr. Flomenbaum appeared as a witness at the trial, opined as an expert on the basis of information on which experts ordinarily and may properly rely, and was subject to cross-examination. In this respect, the case is governed by Commonwealth v. Nardi, 452 Mass. 379, 387-391 (2008) (right of confrontation not violated where medical examiner who did not perform autopsy permitted to testify to his own opinion as to cause of death).
To the extent that Dr. Flomenbaum’s testimony was contested at trial, it was testimony that bore solely on whether the Commonwealth had met its burden of proving murder in the first degree under the theory of extreme atrocity or cruelty. Both defense counsel and the prosecutor specifically argued in their closings that that theory of murder relied on Dr. Flomenbaum’s testimony regarding the length and nature of the struggle between the victim and Hensley. We need not parse the testimony on those points to determine how much of it was Dr. Flomenbaum’s opinion (which would have been admissible), and how much was simply a reporting by Dr. Flomenbaum of Dr. Zane’s findings and opinions,
c. Motion for a new trial. Represented by new counsel, Hensley filed a motion for new trial in August, 2006, arguing that his counsel had been ineffective at both the suppression hearing and the trial. In support of his motion, Hensley submitted medical records from the responding emergency medical personnel and the hospital relating to the night of his attempted suicide; medical records regarding care he received from 1999 to 2002 at the East Boston Neighborhood Health Center; and the New Hampshire State police investigation report. Hensley also submitted an affidavit from Dr. David Rosmarin, an expert psychiatrist who had been retained and consulted by Hensley’s trial counsel, in which Dr. Rosmarin concluded that Hensley’s ability voluntarily, knowingly, and intelligently to waive his Miranda rights the night of the attempted suicide was “severely impaired,” and that Hensley’s statements to the police that night were not voluntary because “his will was overborne” and his ability to avoid divulging information once the interrogation began was “severely weakened.”
Because Hensley was convicted of murder in the first degree, we consider his claims of ineffective assistance of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice, pursuant to G. L. c. 278, § 33E, which is more favorable to the defendant than the constitutional standard for ineffective assistance. “Thus, we consider whether there was error during the course of the trial, and, if so, whether the error was ‘likely to have influenced the jury’s conclusion.’ ” Commonwealth v. Williams, 453 Mass. 203, 205 (2009), quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992). “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, supra, quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992). “A strategic decision by an attorney, however, amounts to ineffective assistance ‘only if it was manifestly unreasonable when made.’ ” Commonwealth v. Williams, supra, quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999).
(i) Ineffective assistance at suppression hearing. Hensley argues that trial counsel’s failure to present evidence of Hensley’s mental illness as it related to his ability voluntarily, knowingly, and intelligently to waive his Miranda rights and voluntarily make a statement to the New Hampshire State Police constituted ineffective assistance of counsel. Specifically, Hensley points to counsel’s failure to introduce evidence that while Hensley was incarcerated in New Hampshire after his arrest, he was diagnosed with major depressive disorder, and counsel’s failure to intro
There is no requirement that trial counsel always present expert or documentary evidence to support an argument, especially where other evidence is presented to support it. See Commonwealth v. Medeiros, 395 Mass. 336, 347 (1985) (“Although the evidence before the motion judge on the issue of the defendant’s intelligence was insubstantial [and did not include expert testimony], we assume it entered into his evaluation of the totality of the circumstances”). The judge at the suppression hearing heard evidence that Hensley tried to till himself by carbon monoxide poisoning on January 31, 2002; that he had allegedly ingested an entire bottle of sleeping pills that day; that he was the subject of an DEH at the time he spoke to the police; that he had said that he would till himself if he were released from the hospital; that he repeatedly stated that he was depressed and had been depressed for some time; and that he said that his life was not worth living, as he had been living in turmoil. Trial counsel grounded his argument that Hensley’s Miranda waiver was invalid and his statements were involuntary on this evidence at the hearing on the motion to suppress, and the motion judge fully considered Hensley’s mental state in his decision. Trial counsel’s decision not to present expert testimony at the hearing on this subject was plainly strategic. For example, if Dr. Rosmarin had testified, the prosecutor would have had a preview of his testimony, thus giving the prosecutor months to prepare for a careful cross-examination of Dr. Rosmarin at trial. Defense counsel’s decision to proceed in this manner was not manifestly unreasonable.
Hensley argues further that counsel was ineffective because such evidence would have shown that his statements were involuntary in that his mental and physical condition rendered him unable to “protect himself” during the interview with the New Hampshire State' police, citing Pea v. United States, 397 F.2d 627, 634 (D.C. Cir. 1968) (defendant’s “statement does not reflect his own free will or intellect if his statement is attributable in critical measure to the fact that his self-protective mechanism is negated or overridden by external force or fraud, a condition of insanity, [or] the compulsion of drugs”). We disagree. Most significantly, Hensley was cognizant enough to
Finally, Hensley argues that his Miranda waiver was not voluntary, knowing, and intelligent because the New Hampshire State Police took advantage of Hensley’s mental and physical condition by purposely deceiving him as to the nature of the interview. More specifically, Hensley contends that the police led him to believe that the interview related only to his detention under New Hampshire’s IEH procedure for attempting suicide, but that the police in fact intended to (and did) question Hensley about the victim’s murder, and that counsel was ineffective in failing to raise this issue.
We agree with the motion judge that counsel’s failure to raise the issue of deception and misrepresentation by the New Hampshire State police at the suppression hearing did not amount to ineffective assistance. Hensley cites Commonwealth v. Hosey, 368 Mass. 571, 577 (1975), for the proposition that “[k] no wing what they did [about Hensley’s mental and physical condition], the police should have been sensitive to whether the defendant was genuinely in a position to understand the significance of a waiver of his rights, in particular the importance of having a lawyer with him during the interrogation.” However, the evidence at the suppression hearing demonstrated that the police were meticulous in ensuring that Hensley had the ability and capacity knowingly, voluntarily, and intelligently to waive his Miranda rights. The officers did not use trickery, deception, or any other unfair tactic to force or cajole Hensley into signing the waiver form or making a statement. The officers behaved in a calm, professional manner and demonstrated no threatening or coercive conduct.
Moreover, the fact that the police did not explain to Hensley at the outset that he was being questioned about the victim’s
(ii) Ineffective assistance at trial. Hensley argues that trial counsel’s failure to present expert and documentary evidence of Hensley’s mental impairment and the effect of that impairment on his capacity to form the states of mind required for murder in the first degree was constitutionally ineffective. More specifically, Hensley contends that his counsel was ineffective for failing to call Dr. Rosmarin, who would have testified (1) that Hensley suffered from a mental impairment that precluded his forming the mental states required for murder in the first degree by deliberate premeditation or extreme atrocity or cruelty, and (2) to Hensley’s version of the events of January 31, 2002.
The decision of trial counsel not to call Dr. Rosmarin was strategic, and we decline to characterize that decision as manifestly unreasonable for several reasons. First, this is not a case in which trial counsel failed to investigate the possibility of a mental impairment defense. Contrast Commonwealth v. Roberio, 428 Mass. 278, 278-279 (1998) (trial counsel’s failure to investigate defense of lack of criminal responsibility amounted to ineffective assistance). Trial counsel thoroughly investigated and proceeded with a defense of mental impairment to the charge of murder in the first degree. At his request, Dr. Rosmarin evaluated Hensley three times prior to trial for the purpose of forming an opinion as to his mental state at the time of the killing, and Dr. Rosmarin was prepared to testify at trial on Hensley’s behalf. If Dr. Rosmarin were to have testified, however, the Commonwealth could have presented its own evidence to
Further, had Dr. Rosmarin testified, his conclusion that Hensley “did not lack criminal responsibility for the killing” would likely have been admitted in evidence, as would Hensley’s description of what happened in the house at 198 Byron Street on January 31, 2002. It is not apparent that that description would have helped his cause: it included statements that would have bolstered the Commonwealth’s theory that Hensley acted out of anger and with deliberate premeditation. For instance, Hensley related to Dr. Rosmarin that “I was going to tell [the victim] how angry I was that I had to kill myself. ... I was afraid I might beat her up. . . .1 grabbed her. ... I started choking her. Saying, ‘You destroyed me and my family.’ I just choked her. ... I was going to take my life and I blamed her for it.” Trial counsel’s decision not to call Dr. Rosmarin to avoid the risk that the jury would hear these statements is not manifestly unreasonable.
Additional unsympathetic facts also may have come to light had trial counsel presented Hensley’s medical records. Although Hensley’s medical records from the East Boston Neighborhood Health Center would have shown some history of anxiety and depression, they also would have shown that Hensley was greatly concerned that his depression medication was impairing his sexual performance. Those records also indicate that Hensley refused further counselling on occasion and that, although he had a generalized anxiety disorder, he showed no symptoms of depression during two separate visits. Moreover, the mental health evaluation that was performed while Hensley was incarcerated in New Hampshire found that although Hensley was suffering from major depressive disorder, there was “no evidence of thought disorder, delusions or hallucinations.”
In light of the fact that Hensley’s family and friends testified
Ultimately, trial counsel correctly concluded that given all of the other evidence of Hensley’s severe depression, he would receive a mental impairment instruction even without Dr. Ros-marin’s testimony or Hensley’s medical records. Trial counsel argued forcefully in summation that the jury should return a verdict of murder in the second degree because Hensley’s mental impairment prevented him from forming the mental states required for murder in the first degree. Counsel reminded the jury that they had heard “compelling evidence of mental impairment [which] affects the state of mind, the intent.” In these circumstances, trial counsel’s decision not to call Dr. Rosmarin or present Hensley’s medical records to avoid the risk that the jury would be exposed to potentially damaging evidence was not manifestly unreasonable. See Commonwealth v. Frank, 433 Mass. 185, 191-192 (2001) (trial counsel not ineffective for not presenting expert testimony regarding mental impairment caused by intoxication
Finally, citing Commonwealth v. Roberio, 428 Mass. 278, 281 (1998), Hensley argues error in the denial of his new trial motion because the judge failed to “evaluate the defendant’s evidence in the light most favorable to him to determine whether it might have influenced a jury’s conclusion.” We disagree. The motion judge in the Roberio case ruled that defense counsel was ineffective for failing to investigate a defense of lack of criminal responsibility, but went on to deny the defendant’s new trial motion because the judge concluded that the defendant’s expert was not credible, and thus the defense of lack of criminal responsibility was not likely to have influenced the jury’s conclusion. Id. at 281. On appeal, this court held that “[i]t was error for the judge to deny the motion for a new trial based on his assessment of the expert’s credibility.” Id. at 281-282. “It was not proper for the trial judge, having found ineffective assistance for failure to raise that defense, to then remove the issue of credibility of that defense from the jury.” Id. at 281. The situation here was different. Unlike in the Roberio case, the judge who heard the motion for a new trial did not decide that trial counsel was ineffective and then deny Hensley’s motion based on a credibility determination. Rather, the judge determined that trial counsel was not ineffective because his tactical decision not to present expert and documentary evidence was not manifestly unreasonable. In analyzing the reasonableness of trial counsel’s decision, the motion judge necessarily considered the negative consequences of presenting this evidence. This was entirely proper, and we have done the same on appeal. See Commonwealth v. Anderson, 398 Mass. 838, 843 (1986) (“The risk of the disclosure of negative information in [expert] reports was substantial if the experts had testified. Defense counsel had a tactical choice to make: whether to present an expert opinion that might raise a reasonable doubt on premeditation and extreme atrocity and cruelty at the risk of the disclosure of unfavorable information that would reflect adversely on the defendant and make less likely a sympathetic manslaughter verdict”).
3. Conclusion. We have examined the record pursuant to G. L. c. 278, § 33E, to determine whether there is any basis to set aside or reduce the murder verdict, regardless of whether such grounds were raised on appeal. We conclude that the evidence supported Hensley’s conviction of murder in the first degree, by reason of deliberate premeditation, and that there is no basis on which to reduce that verdict or order a new trial.
Judgment affirmed.
Order denying motion for a new trial affirmed.
The complaint was not introduced as an exhibit and the jury heard no evidence of the specific allegations in the victim’s contempt complaint.
At the time of trial, Sergeant Detective Coleman’s position was deputy superintendent commander of the Boston police department’s homicide unit.
The physical evidence seized at the time was Hensley’s clothing that he had been wearing before being admitted to Speare Memorial Hospital (hospital). There was evidence at trial that Hensley’s blood was found on the sweatshirt he was wearing. See note 4, infra.
The judge also denied Hensley’s motion to suppress the clothing that was seized when he was arrested. See note 3, supra. Hensley does not challenge the judge’s ruling in this respect, and we perceive no error.
As noted above, the judge’s findings were fully supported by the testimony at the suppression hearing, which he credited.
The Commonwealth did not offer the autopsy report in evidence. Defense counsel objected to all of Dr. Flomenbaum’s testimony on the ground that he was not the medical examiner who had performed the autopsy.
Hensley further claims that in light of Crawford v. Washington, 541 U.S. 36 (2004), in a criminal trial, an expert cannot base his or her opinion on the work of other experts who will not be called as witnesses. More specifically, Hensley contends that our ordinary rule regarding the proper basis for expert testimony, as set out in Commonwealth v. Markvart, 437 Mass. 331, 337 (2002), which includes “facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion” (emphasis added) should now be interpreted to
Dr. Flomenbaum’s testimony is unclear in this regard. With the laying of a proper foundation, it would have been permissible for Dr. Flomenbaum to testify as to his opinion with regard to the nature of the struggle that led to the victim’s injuries, and the length of time it would likely have taken her to die as a result of those injuries. See Commonwealth v. Avila, post 744, 764-765 (2009).
“The Commonwealth need prove only one theory of murder in the first degree. If a jury return a guilty verdict based on two theories, the verdict will remain undisturbed even if only one theory is sustained on appeal.” Commonwealth v. Nolin, 448 Mass. 207, 220 (2007). See Commonwealth v. Ellis, 432 Mass. 746, 763 (2000) (“We need not consider the propriety of the judge’s extreme atrocity or cruelty instruction where, as here, the jury rationally concluded that the defendant was guilty of felony-murder”); Commonwealth v. Donahue, 430 Mass. 710, 716 n.3 (2000) (“Because the jury were warranted in finding the defendant guilty of murder in the first degree on a theory of deliberate premeditation, we need not address the sufficiency of the evidence on which the defendant also was convicted on the alternate theory of extreme atrocity or cruelty”).
Dr. David Rosmarin cited the combined effects of Hensley’s carbon monoxide poisoning, ingestion of sleeping pills, and “the cognitive impairments of [Hensley’s] depression and the stress of the interrogation itself.”
Dr. Rosmarin also concluded that Hensley had the substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law. “That is, in [Dr. Rosmarin’s] opinion, he did not lack criminal responsibility for the killing.”
Dr. Rosmarin’s expert report included Hensley’s version of the killing. The report indicates that Hensley’s only plan when he went to 198 Byron
Contrary to Hensley’s contention, this case is not akin to Commonwealth v. Daniels, 366 Mass. 601 (1975), where this court exercised its powers under G. L. c. 278, § 33E, and reversed a conviction of murder in the second degree “because no evidence was presented at the voir dire or at the trial to aid the trier of fact in evaluating the impact of custodial interrogation on [the defendant] in these circumstances.” Id. at 608. The defendant in the Daniels case suffered from mental retardation, which bore significantly on his ability to waive Miranda rights and make a voluntary statement, and his confession provided the only evidence that he committed the crime. Id. The court concluded that “a substantial injustice may have been done to him because of the absence of expert testimony on the crucial issues of voluntariness and waiver” as well as the unexplained failure to present other, nonexpert evidence of the defendant’s mental capacity at trial. Id. at 608, 609. Unlike the situation in Daniels, Hensley’s trial counsel did present evidence of mental impairment, albeit through lay witness testimony. As explained above, trial counsel had good reasons for declining to call an expert or introduce Hensley’s medical records. Thus, Daniels does not counsel for reversal in this case.