Com. v. Gould
| Decision Date | 19 November 1992 |
| Citation | 413 Mass. 707,603 N.E.2d 201 |
| Parties | COMMONWEALTH v. Walter GOULD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David P. Hoose, Springfield, for defendant.
Rosemary D. Mellor, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.
A jury in the Superior Court found the defendant guilty of murder in the first degree on the basis of premeditation and extreme atrocity or cruelty. 1 A subsequent motion for a new trial (see Mass.R.Crim.P. 30[b], 378 Mass. 900 [1979] ) was denied by the trial judge without a hearing. Represented by new counsel on appeal, the defendant argues that his trial counsel provided him with constitutionally inadequate representation, and that the judge erred in denying his motion for a new trial. We examine the ineffective assistance claim under the standard set forth in G.L. c. 278, § 33E, whether there is a substantial likelihood that a miscarriage of justice has occurred. We, therefore, ask as to this claim whether "there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992). We conclude that no error appears on any issue argued. We also conclude that, although the defendant has not argued for relief under G.L. c. 278, § 33E, there is no reason to question the fairness of the verdict. Accordingly, we affirm the defendant's conviction of first degree murder.
The Commonwealth's case contained the following evidence. 2 On June 4, 1987, the body of the victim, the defendant's seventy-one year old grandmother, was found in her apartment in Hudson by two of her friends. Officer James Murphy of the Hudson police indicated that the victim had been discovered near a smashed coffee table lying on her side, half-in and half-out of a tipped-over chair, face down in a pool of blood. Next to her head the officer noticed a decanter wrapped in a blood-stained magazine. Near the body were several knitting needles, one of which was smeared with blood. Additionally, the police found in the kitchen an opened pocketbook and a trash can containing blood-stained tissue. Strewn on the victim's bed were several jars, opened and empty.
The chief medical examiner for the Commonwealth, an expert in anatomic and forensic pathology, testified that the victim's death was caused by blunt force injuries to her head and neck and that these injuries were consistent with the victim's having been struck multiple times by a glass decanter wrapped in a magazine. The medical examiner indicated that the victim's left eyeball was torn open and the orbit bone fractured, and that there were additional injuries to the victim's head, ribs, and forearms. The medical examiner also described four small puncture wounds of the left chest area which he felt were consistent with being caused by the knitting needles. These wounds, however, were not a factor in the victim's death.
On June 3, 1987, the nineteen year old defendant, driving his girl friend's automobile, picked up a male friend and drove to a beach in Hudson where they drank vodka mixed with fruit punch. Then, after spotting the victim leaving a store, the defendant drove his friend and himself to the victim's apartment so the defendant could borrow money from her. The friend remained outside in the automobile while the defendant went inside to see the victim. Other witnesses testified that prior to June 3, the defendant had repeatedly asked the victim for money, but that she had refused to loan him anything until he repaid previous loans. When the defendant returned to the vehicle from the victim's apartment after about a half-hour, the friend noticed blood on the defendant's hands. The defendant told his friend that he had cut his hand and admitted that he had hit the victim. He also showed the friend a wallet containing credit cards and other cards which he admitted were taken from the victim. The defendant eventually threw the wallet out of the automobile's window; at the defendant's request, his friend disposed of the credit cards and other cards in a similar fashion.
At about 6:30 P.M. that same day, a neighbor, who had heard loud talking in the victim's apartment earlier in the day, saw the defendant drive off in the victim's automobile. The next day the defendant again drove to his friend's home, this time in the victim's automobile. The defendant told his friend that the victim had left him the automobile while she went on a trip, and that she had also left him a purse full of coins for gas money. The defendant later sold antique coins at a coin shop, indicating to the proprietor that the coins had been given him by the victim as a wedding present. Later that day, the defendant drove to visit his girl friend with whom he had argued earlier. He offered the girl friend a necklace and two diamond rings. He said the victim had given him the rings to use as engagement rings.
The defendant was arrested on June 5. When told by the police that the victim had been murdered, he replied that he "didn't know anything about that." Shortly thereafter, however, he told the police that the victim was upset at seeing him with his friend, that he and the victim had argued, and that he "went off the stack and pushed her." The defendant went on to surmise that the victim had tripped, hit her head, or possibly had a heart attack because she was having trouble after heart surgery. The defendant denied that he used anything to hit the victim. The defendant's forearms and palms tested positive for the presence of blood at the time of his arrest. After his arrest, the defendant first told his girl friend that he had pushed the victim, and that a vase had fallen off a table and struck her on the head. About a week before his trial commenced, the defendant told his girl friend that his friend had held the victim's hands and pushed her, while he (the defendant) had taken her money.
1. The defendant alleges that his trial counsel provided him with ineffective assistance in three respects: (a) by failing adequately to investigate defenses based on the defendant's mental state at the time of the offense; (b) by conceding malice in his closing argument and indicating that the defendant was guilty of second degree murder; and (c) by failing to request that the jury be instructed on involuntary manslaughter.
(a) The defendant acknowledges that his trial counsel moved before trial for his examination pursuant to G.L. c. 123, § 15(a ) (1990 ed.), to determine competency to stand trial and criminal responsibility, and that he initially refused a § 15(a ) evaluation. 3 The defendant's trial counsel also filed a motion for funds to retain a private psychiatrist, but this motion was not pressed. It is here that ineffective assistance is claimed. In the defendant's view, an examination by a private psychiatrist might have provided information which his trial counsel could have used to assert claims about his mental state, namely, that he did not possess the ability to premeditate, to harbor malice aforethought, or to commit murder with extreme atrocity or cruelty.
As a general proposition, a failure by trial counsel to investigate a mental state claim can constitute ineffective assistance, if facts known, or reasonably accessible, to counsel could raise a reasonable doubt about a defendant's mental condition. See Commonwealth v. Doucette, 391 Mass. 443, 458-459, 462 N.E.2d 1084 (1984); Osborne v. Commonwealth, 378 Mass. 104, 111, 389 N.E.2d 981 (1979). The difficulty, however, with the defendant's position on this issue is that there are no facts to support the claim he now maintains should have been investigated.
The record of the trial demonstrates that the defendant was lucid and discriminating in his words and conduct before and after the murder. 4 That record, therefore, is devoid of any evidence that the defendant lacked criminal responsibility. There was also no evidence of prior mental illness or hospitalization. See generally Commonwealth v. Cole, 380 Mass. 30, 36, 402 N.E.2d 55 (1980). The defendant's statement that he "went off the stack and pushed [the victim]" described his version of the events and is not indicative of any mental problem.
The defendant refers to three paragraphs of the affidavit he filed to support his motion for a new trial set forth below. 5 He appears to suggest that there should have been investigation of the matters mentioned in paragraph 5 of the affidavit. Nothing has been submitted to amplify on what the defendant's previous emotional or substance abuse problems might have been or what his past evaluation as a juvenile disclosed. More particularly, there is no indication that any of these matters might have had a shred of relevance to his mental condition at the time of the victim's killing. 6 In short, nothing in the record remotely suggests that a more thorough investigation would have disclosed evidence tending to support a contention that the defendant lacked the capacity to premeditate, harbor malice, or commit murder with extreme atrocity or cruelty. 7 See Commonwealth v. Stevens, 379 Mass. 772, 773-774, 400 N.E.2d 261 (1980); Osborne v. Commonwealth, supra.
(b) The defendant's next claim of ineffective assistance pertains to his trial counsel's closing argument. He asserts that, although none of his statements to the Commonwealth's witnesses constituted an admission to second degree murder, his trial counsel abandoned his role as an advocate when he effectively pleaded his client guilty to that offense by conceding malice in his closing argument. This occurred, he says, when counsel admitted that the defendant had hit the victim with a decanter (thereby permitting a finding of malice from the intentional use of a dangerous weapon), and when...
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