Commonwealth v. Velez

• Decision Date: 25 May 2021
• Docket Number: SJC-11503
• Citation: 168 N.E.3d 800,487 Mass. 533
• Parties: COMMONWEALTH v. Idelfonso VELEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 533

168 N.E.3d 800

COMMONWEALTH

v.Idelfonso VELEZ.

SJC-11503

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 2, 2020.

Decided May 25, 2021.

Theodore F. Riordan, Quincy, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: Gaziano, Lowy, Cypher, & Kafker, JJ.

GAZIANO, J.

A Superior Court jury convicted the defendant on two indictments charging murder in the first degree in the stabbing deaths of Trisha Bennett and Angel Ortiz. In these appeals from his convictions and from the denial of his motion for a new trial, following a remand for an evidentiary hearing in the Superior Court, see Commonwealth v. Velez, 479 Mass. 506, 515, 96 N.E.3d 683 (2018), the defendant contends that he is entitled to a new trial because he was deprived of his constitutional right to the effective assistance of counsel. The defendant argues, among other things, that it was manifestly unreasonable for trial counsel to forgo possible mental health defenses in favor of a third-party culprit defense.

We conclude that the defendant was not deprived of his right to the effective assistance of counsel, and, having conducted a plenary review of the record pursuant to G. L. c. 278, § 33E, we discern no basis upon which to disturb the verdicts. Accordingly, we affirm the convictions and the order denying his motion for a new trial.

1. Background a. Prior proceedings. In September of 2010, the defendant was indicted on two counts of murder in the first degree for the deaths of Bennett and Ortiz. The defendant filed a motion to suppress statements he made to police on the ground that his waiver of his Miranda¹ rights, and subsequent statements, had not been voluntarily made due to his intoxication, sleep deprivation, and mental illness. The motion was denied after an evidentiary hearing.

During a February 2012 pretrial hearing, trial counsel informed the judge that the defense would "not be using the insanity defense in this case." One and one-half months later, at a subsequent pretrial hearing, trial counsel assured the judge that he would not be raising mental health defenses, including "any other issues relating to [the defendant's] mental health status as it may bear on the issue of intent."

The defendant's trial began on September 21, 2012, before a different judge. His defense was that a third party, Jonathan Gonzales, committed the crimes. On October 17, 2012, the jury returned verdicts of guilty on two counts of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On August 6, 2014, represented by new appellate counsel, the defendant filed a motion for a new trial on the ground that his trial counsel had been ineffective for not having pursued a defense of intoxication (based on the ingestion of drugs and alcohol) or a "mental impairment

defense relative to the defendant's mental health." The defendant later filed a supplemental pleading arguing, in part, that trial counsel did not properly investigate the mental impairment defense, and that the third-party culprit defense essentially was doomed to fail. Another Superior Court judge (the trial judge having retired) denied the defendant's request for postconviction relief without a hearing. In reviewing that decision, this court concluded that "it [was] necessary to understand [trial] counsel's reasoning at the time he informed the judge that he would not pursue lack of criminal responsibility or mental impairment

defenses." Velez, 479 Mass. at 513, 96 N.E.3d 683. We remanded the matter to the Superior Court for an evidentiary hearing to determine whether trial counsel's strategy to forgo a mental impairment defense in favor of the third-party culprit defense was manifestly unreasonable. Id. at 515, 96 N.E.3d 683.

A different Superior Court judge (motion judge) then held a two-day evidentiary hearing at which trial counsel and the defendant testified. The defendant also introduced in evidence certain of his medical records that had been available to trial counsel but that counsel had not obtained from the defendant's mental health providers. Finding trial counsel's strategy to forgo defenses of mental impairment

and intoxication not manifestly unreasonable, the motion judge denied the defendant's motion for a new trial.

b. Facts. The facts in the underlying case were discussed at length in our prior decision. See Velez, 479 Mass. at 507-511, 96 N.E.3d 683. We focus here on the evidence presented at the hearing on the defendant's motion for a new trial. The following are summarized from the motion judge's findings, supplemented with undisputed facts in the record. See Commonwealth v. Torres, 433 Mass. 669, 670, 745 N.E.2d 945 (2001).

The defendant was represented by an experienced criminal defense attorney, who had been on the so-called "murder list," enabling him to represent defendants charged with murder in the first degree, for twenty-five years. Trial counsel entered an appearance at the defendant's arraignment, and continued to represent him throughout the trial proceedings.

Trial counsel investigated the possibility of asserting defenses based on either a lack of criminal responsibility or impaired capacity due to mental illness or intoxication. To do so, counsel obtained the defendant's mental health records from three hospitals, a community health center, and an addiction treatment center. The records documented that the defendant had been diagnosed with psychiatric illnesses, including bipolar disorder

, schizoaffective disorder, and posttraumatic stress disorder, and had been treated with antidepressants, mood stabilizers, and antipsychotic medications. The medical records also indicated that the defendant had reported experiencing auditory and visual hallucinations.² Notably, on January 1, 2010 (four months before the stabbings), the defendant presented at a major medical center's emergency room with depression and suicidal thoughts, and was psychiatrically hospitalized.³ After approximately two weeks of stabilization and adjustment of his medications, he was released to a drug treatment center, where he relapsed within a few days and attempted to commit suicide through ingesting pills, cocaine, and alcohol. Thereafter, the defendant again was hospitalized for psychiatric observation

and treatment from January 15 to 19, 2010.

In addition to obtaining the defendant's medical records, trial counsel consulted with two mental health professionals. One of these experts, psychiatrist Dr. David Rosmarin, interviewed the defendant on multiple occasions and also reviewed the defendant's mental health records. On January 24, 2012, Rosmarin and trial counsel met for three hours to discuss potential mental health defenses. The meeting included a review of the defendant's "detailed" forensic interview. It was Rosmarin's opinion that he could not offer expert testimony to support mental health defenses based on a lack of criminal responsibility or on mental impairment

.

The other expert witness that trial counsel retained, Dr. Eric Brown, is a clinical and forensic psychologist. Counsel engaged Brown to examine the defendant's mental health as it related to an ability to waive his Miranda rights or to provide a voluntary statement to police. Brown did not interview the defendant; he based his opinion on police reports, as well as the defendant's mental health records, both prior to and following the stabbings. At the hearing on the motion to suppress hearing, Brown testified that the defendant was suffering from schizoaffective disorder

, a serious mental illness, as well as posttraumatic stress disorder. As a result of these mental illnesses, Brown opined, the defendant was unable knowingly and intelligently to waive his constitutional rights and to "interact in an intellectually rational way for any series of interviews."

The judge who decided the defendant's motion to suppress⁴ credited Brown's testimony that the defendant was suffering from a serious mental illness and was not taking prescribed medications. She rejected Brown's opinion that the defendant was unable knowingly, intelligently, and voluntarily to waive his Miranda rights and to interact rationally with police officers. The judge noted that Brown's opinion was contradicted "by the objective evidence of the manner in which the defendant interacted with medical personnel and with the police." The judge concluded, "[N]otwithstanding that the defendant was off his medications at the time of the incident, Dr. Brown could not point to any significant record information about the defendant's behavior on the night in question that supported his hypothesis that the defendant was unable to interact in a rational way following the incident."

Before trial, counsel and the defendant repeatedly discussed the relative benefits of raising defenses based on the defendant's mental condition. On September 6, 2012, trial counsel wrote to the defendant to document counsel's efforts to obtain an expert witness to support a defense of lack of criminal responsibility, and the viability of asserting such a defense without an expert witness. In the letter, counsel stated that he "did substantial research and investigation into [the insanity defense] but determined that it would ultimately be a weak defense." The primary reason noted was that trial counsel had consulted with two expert witnesses and the defendant did not "have a formal diagnosis of mental disease at the time of the commission of the crime." Furthermore, the note continued, the defendant had "fabricated statement[s] to 911, the [emergency medical technicians] and the police immediately after the homicide which indicates appreciation of wrongfulness."⁵ Finally, the letter stated, there was evidence that the defendant was able to conform his conduct to the requirements of the law. Trial counsel also explained that the defendant's "intentional use of alcohol and illicit drugs would...