COMMONWEALTH vs. FRANCIS LANG.
SUPREME JUDICIAL COURT OF MASSACHUSETTS
October 1, 2015
473 Mass. 1 (2015)
Suffolk. November 7, 2014. - October 1, 2015.
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.
This court, in affirming a judgment of conviction of murder in the first degree and orders denying a motion for a new trial, concluded that the defendant had waived his right to a public trial, where the defendant‘s 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
HINES, J., concurring, with whom DUFFLY, J., joined, was of the view that where the defendant‘s trial counsel acknowledged a failure even to consider an investigation of the defendant‘s mental condition (despite being aware that the defendant had a psychiatric history and that predecessor counsel had sought funds to develop a social history of the defendant and to screen for mental illness), because counsel categorically rejected a defense of lack of criminal responsibility, regardless of its merits, if any other defense was available, the failure to investigate an insanity defense fell below the level of competence demanded of an attorney, but that, even assuming the availability of a viable defense of lack of criminal responsibility, counsel‘s strategic choice to defend the case solely on a theory of self-defense was not manifestly unreasonable. [10-18]
LENK, J., concurring, with whom GANTS, C.J., and CORDY, J., joined, agreed that defense counsel‘s failure even to consider an investigation into a potential lack of criminal responsibility defense did not meet the standard for effective assistance of counsel, given the available information suggesting that the defendant had a substantial psychiatric history, but was of the view that the defendant could not make a showing of prejudice as a result of counsel‘s failure to investigate such a defense, where the defendant offered no evidence indicating that he would have agreed to present a defense of lack of criminal responsibility at the time of the original trial and had asserted clearly that he would not present such a defense at a new trial. [18-22]
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.
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
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 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 6-10 (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 16. The other three Justices on the quorum —
Finally, after review of the entire record pursuant to
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
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 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 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
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. 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 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
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 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 prac-
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 [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 (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 (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., quoting Commonwealth v. Cohen (No. 1), 456 Mass. at 106. “A defendant
Our recent cases concerning waiver apply here. As in Commonwealth v. Alebord, 467 Mass. 106, 108, 113 (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, “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.
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.
In a written memorandum of decision and order, issued after an evidentiary hearing, the judge made the following findings of
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 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 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.
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
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.
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
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 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 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.
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 suggests 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. 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
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 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
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 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 defend-
ant‘s choice to forgo an insanity defense is a 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 if 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 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 17. 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.
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 assistance of counsel. Ante at 15. 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 16. 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. Id.
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 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
Finally, because we are not assessing the strategic choice that counsel actually made, the “manifestly unreasonable” standard is inappropriate. Justice Hines states that, despite the “more favorable standard of review” for convictions of murder in the first degree under
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
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 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
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 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.
Notes
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.
“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.