Com. v. Westmoreland

• Decision Date: 03 March 1983
• Citation: 388 Mass. 269,446 N.E.2d 663
• Parties: COMMONWEALTH v. Leonard WESTMORELAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 663

446 N.E.2d 663

388 Mass. 269

COMMONWEALTH v. Leonard WESTMORELAND.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 7, 1982.

Decided March 3, 1983.

Elizabeth A. Lunt, Arlington, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Paul J. McCallum, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The defendant appeals from a conviction of murder in the first degree and argues, inter alia, that he is entitled to a new trial because he was denied effective assistance of counsel. We agree.

The jury could have found the facts to be as follows. In July of 1978, the defendant and the victim, Millicent Davis, established a residence together in Chelsea. Sometime thereafter the victim's two children moved in with their mother and the defendant. In December these four individuals moved to a third floor apartment at 12 Lynn Street in Chelsea. The defendant and the victim argued frequently; at least one such argument left the victim with a black eye. In January, 1979, a judge of the Boston Juvenile Court ordered the two children transferred to foster care.

Throughout the greater part of 1979 the defendant and the victim lived together. In December of 1979, the victim left the defendant and moved in with her grandfather in Boston. In January of 1980, the victim gave birth to a baby whose father is the defendant. However, the Department of Social Services obtained custody of the child before the baby left the hospital. In February, the victim obtained a temporary restraining order under G.L. c. 209A enjoining the defendant from physically and mentally abusing the victim and ordering him to stay away from the victim. However, after the issuance of this court order, the victim and the defendant spent considerable time together.

On the night of March 4, 1980, the victim was seen running down the outside stairs at 12 Lynn Street onto the sidewalk. She was naked, bleeding from her mouth, and screaming for help. The defendant was seen following her down the stairs. The defendant attempted to drag the victim across the sidewalk. The defendant stabbed the victim with a knife seven or eight times as she lay on the sidewalk. The defendant walked back up the porch steps. At this point, the defendant passed Bernice Radzikowski, who lived in the same building, and said to her, "Go upstairs. She's going to be all right." Within minutes the defendant came back down the stairs, leaned over the victim, and stabbed her four or five more times with a different knife. He then stood up, wiped off two or three knives with a cloth, threw these knives into different sections of a neighbor's yard, and dropped the cloth on the sidewalk. Chelsea police apprehended the defendant as he crossed Central Avenue less than a block from the scene.

After an eight-day trial, the jury returned a verdict of guilty of murder in the first degree. The judge sentenced the defendant to life imprisonment at the Massachusetts Correctional Institution, Walpole.

1. Effective Assistance of Counsel.

The defendant contends that he was denied his constitutional right to effective assistance of counsel because trial counsel, in his closing argument to the jury, deprived him of an insanity defense based on Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967), and did not argue a mental impairment defense based on Commonwealth v. Gould, 380 Mass. 627, 405 N.E.2d 927 (1980). We agree and order a new trial.

In this case the defendant's trial counsel proceeded with three principal defenses: insanity, mental impairment, and provocation. Three witnesses testified that the defendant repeatedly stabbed the victim while she was lying helpless on the sidewalk. According to the testimony of the pathologist, the victim received approximately forty-five stab wounds in various parts of her body. A psychiatrist called by the defendant testified that, at the time of the attack on the victim, the defendant was suffering from a mental defect--specifically, an antisocial personality disorder. Moreover, this expert testified that because of this defect the defendant lacked substantial capacity to conform his conduct to the requirements of the law. ¹ There was also expert testimony from which the jury could infer that the defendant did not have the capacity deliberately to premeditate his acts.

The defendant took the stand and gave the following account of the events which culminated in the victim's death. During a conversation between the defendant and the victim, the victim stabbed herself with a knife. The defendant tried to grab the knife and pull it out of the victim's body but could not do so because she was gripping the knife in her hands. He slapped the victim and the knife came out. At this point the defendant attempted to stop the bleeding by placing the victim in a bathtub with cold water running. He subsequently took her out of the bathtub and placed the victim on a mattress in the living room. The defendant's memory becomes less clear at this point. He remembers that the victim threw a knife at him, missing him. She then ran out of the apartment to the sidewalk. As to the events which took place on the sidewalk, the defendant remembers only that the victim tried to stab him. He does not recall stabbing the victim. He does not recall bringing any weapons out of the apartment. The next thing he remembers is standing over the victim confused and unable to recognize the body as being that of the victim. His memory does not come into focus again until he is at the police station.

In closing argument, however, defense counsel said to the jury: "Now, Mr. Foreman, ladies and gentlemen of the jury, I'm not a smart guy. I'm a Chelsea street guy. I don't know about these psychiatric things. I just know I can conform my conduct and I know that Westmoreland didn't conform his. Temporary insanity? That's for you. Maybe not. Probably not. I don't think you're going to buy that ...." He did not mention the defense of mental impairment based on Gould. ² Rather, he argued for a verdict of guilty of voluntary manslaughter although there was no evidence of provocation.

In Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), we held that an appellate court must examine "whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Accord Commonwealth v. Street, 388 Mass. 281, 446 N.E.2d 670 (1983); Commonwealth v. Levia, 385 Mass. 345, 352, 431 N.E.2d 928 (1982); Commonwealth v. Key, 381 Mass. 19, ---, Mass.Adv.Sh. (1980) 1551, 1563, 407 N.E.2d 327; Commonwealth v. Daigle, 379 Mass. 541, 544, 399 N.E.2d 1063 (1980). We will not reverse a conviction on this ground unless the defendant demonstrates "that better work might have accomplished something material for the defense." Commonwealth v. Adams, 374 Mass. 722, 727, 375 N.E.2d 681 (1978), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). Accord Commonwealth v. Dalton, 385 Mass. 190, 195, 431 N.E.2d 203 (1982).

There was sufficient evidence which, if believed, would have warranted the jury in returning a verdict reflecting their belief that the defendant was not criminally responsible. Counsel's withdrawal from the jury of the consideration of the issue of criminal responsibility, standing alone, is sufficient to require a new trial. Further, counsel compounded the error by disavowing a Gould defense. In Commonwealth v. Gould, 380 Mass. 627, 405 N.E.2d 927 (1980), we held that a jury should consider a defendant's mental illness as it might bear on his capacity for deliberate premeditation. 380 Mass. at --- - ---, Mass.Adv.Sh. (1980) at 1262-1264, 405 N.E.2d 927. We also held in that case that on the factual issue whether a murder was committed with extreme atrocity or cruelty, the jury should be allowed to consider the defendant's mental illness and the effect of such an illness on his conduct. Id. at --- - ---, 1265-1267, 405 N.E.2d 927.

We view the evidence as raising a substantial question as to the defendant's ability deliberately to premeditate the killing. Moreover, the evidence raised the issue whether the defendant possessed the state of mind consonant with the crime of murder by extreme atrocity or cruelty. The judge instructed the jury on the Gould mental impairment doctrine. ³ However, defense counsel did not ask the jury to consider the defendant's mental state as it bore on the issue of deliberate premeditation and extreme atrocity or cruelty. Rather, he cryptically argued for a voluntary manslaughter verdict without referring to any evidence of provocation. He referred several times to the defendant as a man out of control, but never asked the jury to consider that characterization as it bore on the defendant's capacity deliberately to premeditate or to commit a homicide with extreme atrocity or cruelty. We are satisfied that, given the evidence tending to show lack of criminal responsibility under McHoul and the evidence tending to show a Gould defense, the lawyer's concessions at closing argument and surrender of the defendant to a somewhat opaque and poorly conceived manslaughter theory was behavior which falls "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We are likewise convinced that this abandonment of viable defenses at final argument, and the dearth of evidence showing provocation "likely deprived the defendant of an otherwise available, substantial ground of defence." Saferian, supra. The defendant has established that a better closing argument, discussing...