Com. v. Robbins

Decision Date19 March 1996
Citation422 Mass. 305,662 N.E.2d 213
PartiesCOMMONWEALTH v. David M. ROBBINS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James F. McNiff, II, Georgetown, for defendant.

Catherine E. Sullivan, Assistant District Attorney, for Commonwealth.

FRIED, Justice.

The defendant, David M. Robbins, was convicted of murder in the first degree and armed burglary in the nighttime. While his appeal was pending, he filed a motion and an amended motion for a new trial in this court. These motions were denied by a single justice of this court to whom they were referred. We consider the matter of those motions together with this appeal and affirm the denial of those motions as well as the defendant's conviction for first degree murder by reason of deliberate premeditation. We reverse the defendant's conviction for armed burglary.

I

Robbins entered his estranged wife's apartment at about 4 A.M. on April 18, 1990, by slashing the screen door at the back of the apartment and using a key he had borrowed earlier from his wife's daughter (by a previous marriage) to open the inner door. He found his wife in the shower, and stabbed her sixteen times, inflicting a number of mortal wounds, and slit her throat. The victim screamed and struggled, staggered out of the bathroom and collapsed on the kitchen floor. The screams brought her daughter from her room. She shouted at the defendant, "What did you do to my mother." The defendant pushed her out of the way and walked out of the apartment. When the daughter went back to her mother, she was not yet dead. Neighbors were alerted, the police were called, and shortly thereafter Robbins was located in the beam of a police spotlight still holding the bloody knife and covered in blood. Robbins had almost certainly taken the knife from the kitchen of a friend with whom he had been staying that night before he made his way back to his wife's apartment. Once apprehended, Robbins insisted that his wife was still alive and would shortly come to bail him out.

At his eight-day trial, Robbins emphasized issues relating to criminal responsibility, since there could be little dispute that he had actually killed his wife. The evidence showed that Robbins had a long history of serious drug and alcohol abuse, for which he had received in-patient treatment in 1990, 1988, and twice in 1984. In 1990, just days before the killing he had made a suicide threat sufficiently credible that the police had taken him to an in-patient psychiatric facility. His alcoholism had been a principal source of difficulty in his brief marriage to the victim, which had been characterized by arguments and verbal abuse by Robbins. On one occasion the victim had obtained a temporary restraining order requiring Robbins to remain away from her and the apartment in which she lived. She had allowed him to return thereafter. It was his heavy drinking that had precipitated her decision on the day before the killing to break with Robbins definitively. On that day he had been drinking heavily, beginning in the morning and continuing throughout the night, before he went to sleep for a time at the home of a friend.

At the end of the Commonwealth's evidence the trial judge allowed the defendant's motion for a required finding of not guilty on the indictment charging a violation of a restraining order. The jury returned verdicts finding Robbins guilty of murder in the first degree by deliberate premeditation, extreme atrocity or cruelty, and felony-murder premised on armed burglary, and guilty also of armed burglary. The judge had given a specific unanimity instruction. Defense counsel made detailed requests for instructions on all major issues. The judge's instructions differed in some respect from the requested instructions, and trial counsel objected to several of these deviations. His motions at the close of the Commonwealth's evidence, at the close of all the evidence, and after the return of the verdicts sought required findings of not guilty on the armed burglary and the felony-murder charges, claiming that the evidence was insufficient as matter of law to sustain those charges. Robbins also seeks reversal on the grounds that he received ineffective assistance of counsel in presenting his defense relating to his mental state and lack of criminal responsibility and invokes our authority under G.L. c. 278, § 33E (1994 ed.), to order a new trial.

II
A

We consider the issue of Robbins's criminal responsibility the most substantial issue in this case. There is no doubt that he was a man in the grips of alcohol. There was testimony about the vast quantities of alcohol he drank, his use of cocaine, and his inability to stay clear of these for any prolonged period of time, even as it became clear that his drinking and the anger and abusive conduct that went along with it were destroying his life. His wife, the victim, whom he had married only ten months earlier, had turned him out of their home on several occasions, relenting each time either in the face of his promise to reform, or because his condition was so pitiable that he had nowhere else to go. There is support in the record for Robbins's contention that he suffered from delirium tremens, blackouts, and hallucinations because of his heavy drinking. He had been admitted for in-patient medical care for his substance abuse on several occasions. On the day before the killing, he testified that he had drunk as much as a quart of vodka. All this was put before the jury. Defense counsel sought and received an allowance of up to $1,500 from the court to procure expert evaluations and testimony. An evaluation was performed by Dr. Bernard S. Yudowitz, but the results were not introduced in evidence, perhaps because Dr. Yudowitz wrote in his report that he had no evidence that Robbins was intoxicated at the time of the killing or "that his conduct was seriously compromised by his drinking." He concluded that Robbins "does not meet the standards which would show that he was suffering from a mental disease or defect which would have rendered him unable to conform his conduct to the requirements of the law or which would have rendered him unable to appreciate the criminality of his behavior." Dr. Yudowitz did not specifically advert to Robbins's statements after the killing asserting that his wife was still alive and that she would be along soon to bail him out. It is this failure to emphasize what might be described as his hallucinatory thinking as well as evidence of earlier episodes of hallucinations that Robbins's attorney on appeal insists shows that Robbins received ineffective assistance of counsel at trial.

We do not think that trial counsel's conduct allows Robbins to meet that rather stringent test as a ground of relief. See Commonwealth v. Parker, 420 Mass. 242, 245-246, 649 N.E.2d 727 (1995) (more favorable standard of review for "capital" cases); Commonwealth v. Wright, 411 Mass. 678, 681 -682, 584 N.E.2d 621 (1992); Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Trial counsel emphasized Robbins's experience of blackouts as the main support for a conclusion that Robbins was not responsible for his actions. Trial counsel produced Dr. Kenneth Lorenz as a witness. Dr. Lorenz had treated Robbins for alcohol and cocaine dependency on an in-patient basis some fifteen months earlier. He both identified the records relating to that hospitalization and gave expert testimony on alcohol-induced hallucinations, the effects of alcohol withdrawal and the nature of alcohol-induced blackouts, which he defined as "a peculiar state that's reported by those who have experienced it as not having recollection--complete or partial recollection, of events that occurred during a period of time while they were under the influence of alcohol acutely." It was clearly trial counsel's strategy, as his closing argument showed, to rely on the theory that "[the defendant] was in a substance induced blackout state [at the time of the killing.]" Counsel on appeal urges that this emphasis, rather than a different emphasis on Robbins's reports of hallucinations and on his insistence that his wife was still alive, amounted to ineffective assistance of counsel. Trial counsel's strategy was not successful, but it was reasonable: the evidence of hallucinations was sparse and Robbins's insistence that his wife was still alive might have been feigned. We believe that this additional evidence, if pressed at trial, "would not likely have influenced the jury's conclusion that, at the time of the killing, the defendant had the mens rea necessary for a conviction of deliberately premeditated murder in the first degree." Commonwealth v. Parker, supra at 247, 649 N.E.2d 727. 1 Accordingly, we reject this claim as well as the related claim that Robbins should be allowed the opportunity to conduct further discovery and be granted an evidentiary hearing to consider further the effectiveness of trial counsel.

B

Robbins complains about the instruction on extreme atrocity or cruelty. The bases for his claim of error here are somewhat contradictory: first, that the charge as given allowed the jury to find extreme atrocity or cruelty even in the absence of any of the several factors gleaned from our cases and that the judge set out in her charge; but also that by beginning her list with what the defendant calls the objective factors (the nature of the wounds and the like), the judge improperly minimized consideration of the last two subjective factors relating to the perpetrator's awareness of the victim's suffering and his indifference to or pleasure in that suffering.

In Commonwealth v. Hunter, 416 Mass. 831, 837, 626 N.E.2d 873 (1994), we ruled that a jury instruction on extreme atrocity or cruelty was "inconsistent with our case law," in that it "improperly permitted the jury to find extreme atrocity or cruelty without finding that any of the factors ...

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