Commonwealth v. Lang, SJC–10405.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation473 Mass. 1,38 N.E.3d 262
Docket NumberSJC–10405.
PartiesCOMMONWEALTH v. Francis LANG.
Decision Date01 October 2015

473 Mass. 1
38 N.E.3d 262

Francis LANG.


Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 7, 2014.
Decided Oct. 1, 2015.

38 N.E.3d 264

Ruth Greenberg for the defendant.

John P. Zanini, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with him) for the Commonwealth.

Leslie W. O'Brien, Boston, for Richard M. Boucher, Jr., amicus curiae, submitted a brief.




The defendant was convicted in 2006 of murder in the first degree on the theory of extreme atrocity or cruelty. While his direct appeal was pending here, he moved for a new trial on two grounds: first, he claimed that the court room

was improperly closed to the public during the jury selection phase of the case; second, he claimed that his trial counsel was ineffective in failing to investigate his mental history, thereby depriving him of, among other things, an opportunity to make an informed decision whether to pursue a defense of lack of criminal responsibility. We transferred the motion for a new trial to the Superior Court and stayed the direct appeal pending a ruling on the motion. After two separate evidentiary hearings, one on each of the issues raised in the motion, the motion for a new trial was denied.1

We now have before us the defendant's direct appeal and his appeal from the denial of his motion for a new trial. In addition to pressing the public trial and ineffective assistance of counsel claims raised in his motion, the defendant also challenges the judge's charge to the jury, claiming that it was error to instruct the jury that they could find malice for purposes of murder in the first degree on the theory of extreme atrocity or cruelty based on the so-called second or third prong of malice, and, further, that the third prong of malice is essentially indistinguishable from the mens rea needed for a conviction of involuntary manslaughter.

All five Justices on the quorum agree that the judgment of conviction and the orders denying the motion for a new trial are to be affirmed. With respect to the public trial and jury instruction issues, the Justices unanimously reject the defendant's claims for the reasons set forth in parts 2.a and 2.b of Justice Hines's concurring opinion, post at 4, 38 N.E.3d at 265 (Hines, J., concurring). With respect to the claim that counsel was ineffective in failing to investigate the defendant's mental history, the Justices unanimously agree that the defendant is not entitled to relief on that basis, but they reach this conclusion

38 N.E.3d 265

for differing reasons. Two Justices—Justice Hines and Justice Duffly—conclude that the failure to investigate did not create a substantial likelihood of a miscarriage of justice in the circumstances of this case because, “even assuming the availability of a viable lack of criminal responsibility defense, counsel's strategic choice to defend the case solely on a self-defense theory was not manifestly unreasonable.” Id. at 16, 38 N.E.3d at 274. The other three Justices on the quorum—

Justice Lenk, joined by Chief Justice Gants and Justice Cordy—conclude that the failure to investigate did not create a substantial likelihood of a miscarriage of justice because the defendant “offered no evidence indicating that he would have agreed to present a lack of criminal responsibility defense at the time of the original trial, and has clearly asserted that he would not present the defense at a new trial,” and because “the absence of any evidence indicating his willingness to present the defense prevents him from establishing prejudice as a result of counsel's failure to investigate such a defense.” Post at 21, 38 N.E.3d at 278 (Lenk, J., concurring). These Justices are also of the view that, “[e]ven if the defendant had agreed to present a lack of criminal responsibility defense ... [it is questionable] whether [it] would have been a substantial defense and ... [there is] no reasonable basis for thinking the outcome at trial likely would have been different.” Id. at 21, 38 N.E.3d at 278.

Finally, after review of the entire record pursuant to G.L. c.278, § 33E, the Justices agree unanimously that there is no other basis for granting the defendant relief.

Judgment affirmed.

Orders denying motion for a new trial affirmed.

HINES, J. (concurring, with whom Duffly, J., joins).

1. Background. The jury could have found the following facts. Shortly before midnight on March 18, 2005, the defendant, Francis Lang, with a can of beer in hand, entered a bar in the Charlestown section of Boston. Because of an incident several years prior, the defendant had been banned from the bar by the bartender who was on duty when the defendant arrived. The bartender and his sister, a waitress at the bar, were the only employees working that night.

The defendant approached the bartender and asked for a beer. The bartender reminded the defendant that he was not welcome at the establishment.1 The defendant protested, stating that a long time had passed and he was a “different person.” The bartender repeated that the defendant was not welcome. Growing upset, the

defendant told the bartender that he had better contact the police and “have them take me out because I am not leaving.” As the bartender headed over to a telephone behind the bar, the defendant started yelling obscenities.

The bartender's sister, her boy friend, and the victim, Richard T. Dever,2 went over to the defendant. The defendant apologized to the bartender's sister. Someone asked the defendant to leave and tried to usher him to the front door. Although he started to comply with their requests to leave, the defendant threw his beer can, smashing a glass object at the bar, and said, “Fuck you,” to the bartender.

Accounts by patrons inside the bar varied as to what next ensued, but there was evidence that a scuffle occurred in the small foyer at the entrance of the bar

38 N.E.3d 266

involving the defendant and the victim, and possibly others. One witness testified that the victim threw punches at the defendant. The scuffle moved outside onto the sidewalk in front of the bar. There, the defendant and the victim exchanged punches. The defendant took out a pocket knife and stabbed the victim several times, stating, “How do you like that, motherfucker?” and, “How's your motherfucking pretty face now?” The defendant “gave the finger” and left. Minutes later, he returned to the bar briefly, yelling and looking for his glasses. He then fled the scene. Several hours later, the police found the defendant hiding in a basement apartment at a home in the area and arrested him.

After the altercation, the victim, with the assistance of his friend, returned inside the bar. The victim had blood all over his face from a gash inflicted during the stabbing. His shirt was torn open revealing blood on his chest. After stopping briefly at the back of the bar to sit down, the victim was brought to a room out of sight behind the bar. Someone screamed, “Call an ambulance.” The bartender made the call, and police officers and paramedics arrived within minutes. They found the victim covered in blood and gasping for air. Paramedics transported the victim to a nearby hospital where he was pronounced dead in the early morning hours of the following day.

The victim died as a result of multiple stab wounds. He suffered three stab wounds to the left side of his chest, one of which perforated his heart, and one stab wound under his arm. Also, as a result of the attack, the victim had three incised wounds on his

face, one of which exposed bone.3

The defendant did not testify. He called one witness, a patron at the bar. The patron stated that before the stabbing, the defendant had been physically attacked by four people. Based on this witness's testimony, the defendant's trial counsel argued that the defendant had acted in self-defense. Alternatively, the defendant's trial counsel asserted that mitigating circumstances rendered the killing nothing more than voluntary manslaughter.

In addition to instructing the jury on murder in the first degree, the judge instructed on murder in the second degree and on voluntary manslaughter based on excessive force in self-defense, heat of passion on reasonable provocation, and heat of passion induced by sudden combat. He also instructed on self-defense and on the effect of a defendant's alcohol intoxication on intent.

2. Discussion. a. Public trial. In 2009, the defendant moved for a new trial,4 claiming a violation of his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution

38 N.E.3d 267

when court officers excluded the public and his family from the court room during jury empanelment. The trial judge conducted an evidentiary hearing on the motion and issued written findings of fact summarized as follows.

Jury empanelment in the case took place during the course of two days. At the time of the...

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    ...standard providing that, to be ineffective, the attorney's decision must have been manifestly unreasonable. See Commonwealth v. Lang, 473 Mass. 1, 14, 38 N.E.3d 262 (2015) ; Commonwealth v. Kolenovic, 471 Mass. 664, 674-675, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017). i......
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