Heard: November 10, 2016.
found and returned in the Superior Court Department on
November 18, 1998.
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.
S. Nixon for the defendant.
A. Cusick, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
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
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.
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
afternoon of the day of the murder, the defendant began
drinking one hundred proof peppermint schnapps and ingesting
Elavil, 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.
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. 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 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.
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.
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.
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.
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 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.
trial, the defendant testified and presented witnesses in
support of his mental impairment (diminished capacity)
defense. 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 drug use abated for
a period of time after meeting and marrying the victim.
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.
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.
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.
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
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
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.
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."
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 "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.
First motion ...