Commonwealth v. LaCava

• Decision Date: 21 February 2003
• Citation: 783 NE 2d 812,438 Mass. 708
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. THOMAS N. LACAVA.

438 Mass. 708

783 NE 2d 812

COMMONWEALTH v. THOMAS N. LACAVA.

Supreme Judicial Court of Massachusetts, Worcester.

November 8, 2002.

February 21, 2003.

Present: MARSHALL, C.J., GREANEY, SOSMAN, & CORDY, JJ.

Benjamin H. Keehn, Committee for Public Counsel Services, for the defendant. Christopher P. Hodgens, Assistant District Attorney, for the Commonwealth.

CORDY, J.

Following a jury trial, Thomas N. LaCava was convicted of the deliberate, premeditated murder of his estranged wife. LaCava was also indicted for violating a protective order during the commission of the murder, but pleaded guilty to that charge before the close of trial. LaCava appeals from his conviction of murder in the first degree and from the denial of his motions for a new trial.

LaCava's strategy at trial was to challenge the elements of premeditation and malice based on diminished mental capacity. He admitted shooting and killing his wife, but attempted to show that, due to his deteriorating mental state, he was unable to premeditate or form the requisite malice necessary for murder in the first degree at the time he pulled the trigger. He was therefore, he argues, guilty only of voluntary manslaughter, or, at most, murder in the second degree. On appeal LaCava claims that his trial counsel was ineffective by (1) failing to pursue a defense of lack of criminal responsibility, (2) ineffectively presenting the defense theory of diminished capacity, (3) waiving a "humane practice" instruction regarding statements LaCava made to the police and others, (4) advising him to plead guilty to violating the protective order, and (5) failing to present an adequate voluntary manslaughter argument based on provocation. He also claims that his right to a fair trial was abridged because he was dressed in State-issued institutional clothing during the course of his trial. Finally, LaCava asks us to invoke our power under G. L. c. 278, § 33E, to reduce the verdict to manslaughter, or to order a new trial. For the reasons set forth below, we affirm the conviction and decline to exercise our powers under G. L. c. 278, § 33E, to order a new trial or reduce the murder conviction to a lesser degree of guilt. We also affirm the orders denying his motions for a new trial.

1. Background. We summarize the evidence in its light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised.

The facts as to the death of the victim are largely undisputed. In the early evening of January 3, 1994, LaCava shot and killed his wife while she was sitting in her automobile outside an apartment she shared with one of her daughters. The steady deterioration of their marriage of thirty years preceded the shooting.

In 1991, the victim told LaCava that she wanted a divorce and later that year or in 1992 she filed a complaint for divorce. Between 1991 and 1993, the couple attempted a reconciliation but the relationship remained strained. They mostly lived apart and sporadically attended marital counselling sessions.¹ They were never able to reconcile. LaCava, however, remained obsessed with his wife, constantly longing for their relationship to rekindle. In the spring of 1993, LaCava learned that his wife was seeing someone else. On April 15, 1993, the victim obtained a protective order,² but LaCava continued to follow his wife, using rental vehicles so that she would not recognize him. LaCava also spoke to friends about his intention to kill himself, and, in the months preceding the murder, about his intention to kill his wife as well. These conversations included scenarios formulated by LaCava as to how he might kill his wife at her apartment or when she was leaving work, and discussions about how to purchase a handgun without obtaining a firearm identification card. Eventually, LaCava purchased a "black powdered" handgun from a dealer in Vermont and left it in the cellar of the marital home. Subsequently he purchased ammunition in Kittery, Maine.

A trial date in the divorce action was set for January 10, 1994. On December 18, 1993, LaCava loaded his automobile and drove to Florida, in what he termed an attempt to start a new life for himself. However, on New Year's Eve, LaCava unexpectedly returned from Florida and made an attempt to contact his wife to try and reconcile, or at least retain possession of the marital home that his wife was seeking to sell in connection with the divorce action.³ On January 3, after being told by his daughter to stop trying to contact the victim, he went to the marital home to pick up his gun. He then ate lunch at a local diner, calmly spoke to an acquaintance there, checked into an area motel, wrote checks to pay bills, rented an automobile at the Worcester Airport, and drove to the victim's apartment complex to lie in wait for her arrival. In addition to the handgun, he brought along knives, handcuffs, duct tape, rope, a plastic bag, and a filter-type mask that LaCava admitted he had with him should his wife try to spray him with mace.

When the victim arrived home, she backed her vehicle into a parking space. LaCava blocked her in with his automobile and approached with his handgun, now loaded, at his side. According to LaCava, the victim looked at him through the automobile windshield with an expression of "disdain" or "anger," and "made a move with her whole body like she was going to drive the car." He began firing his weapon, methodically walking alongside the automobile discharging all five of its bullets into the driver's compartment, killing the victim.⁴ LaCava testified that he then turned the gun on himself, but was out of ammunition. He entered his vehicle and sped out of the parking lot with his lights off. He disposed of the gun in a park, and spent the next twelve hours in a destructive pattern of behavior, stabbing himself numerous times about the neck and abdomen.

At approximately 8:30 A.M. the next day, a bleeding LaCava walked into the Connecticut State police barracks in Danielson. He made "fragmented statements" regarding hurting his wife and was transported to a hospital for medical care for his selfinflicted wounds. While LaCava was at the hospital, it became known to the Connecticut State police that he was a suspect in the killing of his wife in Worcester. Consequently, he was advised of his Miranda rights and briefly questioned by a Connecticut State police detective. During this questioning, LaCava told the detective that he shot his wife with a gun and that he had thrown the gun away in a State park.⁵

In preparing a defense, LaCava's trial counsel retained a forensic psychologist, Dr. Frederic Krell, to determine whether LaCava's psychological state might provide the basis for a lack of criminal responsibility (insanity) defense as set forth in Commonwealth v. McHoul, 352 Mass. 544 (1967). After conducting his evaluation, Dr. Krell informed counsel that in his opinion LaCava did not satisfy the requirements for an insanity defense, in that he did not suffer from a mental disease or defect. He did opine, however, that LaCava suffered from both a personality disorder reflected in his self-centeredness and controlling behavior, and reactive depression caused by a combination of events in his life including the breakdown of his marriage, the recent loss of his job, and the prospect of losing everything for which he had worked, including his home. He further concluded that, as a result of these conditions, LaCava had been unable to process information, manage his feelings, or control his behavior at the time of the shooting.

In light of Dr. Krell's assessment and on the basis of his own investigation and review of the evidence in the case, trial counsel opted to forgo an insanity defense and pursue a diminished capacity theory, as outlined in Commonwealth v. Gould, 380 Mass. 672, 680-682 (1980), in an effort to secure a verdict of less than murder in the first degree. This strategy proved unsuccessful.

LaCava subsequently filed a timely notice of appeal and a motion for a new trial based on ineffective assistance of counsel. After an evidentiary hearing, the motion for a new trial was denied. Thereafter, LaCava filed a second motion for a new trial raising another ground for his claim of ineffective assistance of counsel, and a claim that he had been deprived of his right to a fair trial because he had been dressed in institutional clothing throughout the trial. After a further evidentiary hearing, the motion judge denied this motion as well, concluding that LaCava had waived the latter claims by failing to include them in his first motion for a new trial. The judge further concluded that his refusal to consider the merits of the new claims would not result in a miscarriage of justice.

2. Discussion. "In evaluating a claim of ineffective assistance of counsel in a case of murder in the first degree, we begin by determining whether there was a serious failure by trial counsel.

If so, then we determine whether the failure resulted in a substantial likelihood of a miscarriage of justice." Commonwealth v. Harbin, 435 Mass. 654, 656 (2002). Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992). In determining whether there has been a serious failure, we give trial counsel's tactical decisions due deference, and "do not `second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.'" Commonwealth v. Street, 388 Mass. 281, 285 (1983), quoting Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). Unless a tactical decision of trial counsel was "manifestly unreasonable when made," we will not find ineffectiveness. Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Because all but one of the claims raised by LaCava involve tactical decisions made by his trial attorney, we review them to see if they were manifestly unreasonable, and, if so, whether a substantial likelihood of a miscarriage of justice...