Opinion
12-P-246
02-06-2015
COMMONWEALTH v. PHILIP M. POPE EVANS (and five companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the time of the crimes in this case, the defendant, Phillip M. Pope Evans, was just over seventeen years old. His codefendant, Oderto Mejia, was nineteen years old. They were charged in parallel five-count indictments which included first degree murder, but were each convicted of the lesser included offense of manslaughter, carrying a firearm without a license, and one count of the lesser included offense of assault with intent to kill. The jury were instructed on all the possible bases for finding a killing to be manslaughter rather than murder, that is provocation, sudden combat, or excessive force used in self-defense or defense of another. Nonetheless, based on the evidence and the arguments before the jury, the manslaughter convictions may be read to indicate the jury either believed that the defendants were entitled to use force in self-defense, but concluded that they used excessive force, or concluded that they were provoked, but, again, failed to respond reasonably. We may assume without deciding that this is the correct way of viewing the convictions for purposes of examining the question raised in this case.
The defendants argue that counsel provided ineffective assistance in failing to present evidence of science regarding the development of the adolescent brain. The crux of this evidence is that adolescents' ability to think and act rationally in the heat of the moment is diminished (as compared to adults') because the frontal lobes of their brains are not yet completely developed, and the frontal lobe is the deliberate integrator-of-information of the brain that can provide a check on initial impulses. An underdeveloped frontal lobe means that adolescents' decision making will instead be governed by the amygdala, which primarily makes flight-or-fight decisions and results in impulsive or aggressive behavior. Such evidence, the defendants argue, should have been included in "all the circumstances" used to judge the reasonableness of their actions.
They further argue that counsel should, on the basis of this evidence, have sought an instruction that the reasonableness of the force used in self-defense should be assessed under a "reasonable adolescent" standard. Finally, Pope Evans also argues this same brain science ought to have been presented to the judge at sentencing, and that counsel's failure to present it rendered his assistance ineffective.
Mejia offers no explicit explanation of why a nineteen year old would qualify for such a standard, although the science cited in his brief asserts that frontal lobe development continues to occur until the early to mid-twenties.
The defendants cite a number of cases, including from the Supreme Court of the United States, that have concluded that young people are less culpable than adults. See Roper v. Simmons, 543 U.S. 551, 568-571 (2005) (sentencing a juvenile to death violated prohibition of Eighth Amendment to United States Constitution against cruel and unusual punishment); Graham v. Florida, 560 U.S. 48, 74 (2010) (sentencing a juvenile to life imprisonment without parole for a nonhomicide crime violated the Eighth Amendment). Defendants are correct that the Court has found science of the type proffered by their expert relevant to legal analysis in some contexts: in Graham it noted that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence." Id. at 68, citing Brief for American Medical Association et al. and Brief for American Psychological Association et al. Mejia also cites Miller v. Alabama, 132 S.Ct. 2455 (2012), although it post dates the convictions by a year. See Commonwealth v. Walker, 443 Mass. 867, 873, 875, cert. denied, 546 U.S. 1021 (2005) (only cases existing at time of counsel's representation of defendant are relevant to ineffective assistance claim unless "extreme circumstances" present).
The defendants' argument for the use of brain science in the way they describe comes by way of analogy from the so-called battered woman's syndrome doctrine, which allows admission of "the psychological consequences of a history of abuse . . . to the consideration of whether the defendant was in fear of serious injury or death." Commonwealth v. Anestal, 463 Mass. 655, 676 (2012). Juveniles are different than adults, they argue, like those who have suffered abuse are different than those who have not; thus, like those who have suffered abuse, juveniles should be entitled to expert testimony and jury instructions on what those differences are. Further, the Legislature's recent activity indicates it is considering the issue of the criminal justice system's treatment of adolescents. See Watts v. Commonwealth, 468 Mass. 49, 49-50 (2014) (stating that, in 2013, the Legislature extended the Juvenile Court's jurisdiction to persons who are seventeen years of age at the time of an alleged offense).
Although this statement comes from a 2012 case, it is merely the clearest statement of the proposition; it is not the first, see, e.g., Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 643 (1997).
The defendants put forth an interesting and potentially important argument. However, the claim in this case founders on its procedural posture. Under the well-known Saferian standard, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), an attorney's representation of a criminal defendant will be found constitutionally ineffective only if it falls below what might reasonably be expected of an ordinary fallible lawyer. At the time of trial, only two of the Supreme Court cases cited by the defendants had been decided, and only one mentioned adolescent brain science. More to the point, we have not been pointed to any self-defense or reasonable provocation case decided before then in any State in which such science was put before the jury. See Commonwealth v. Walker, 443 Mass. at 873-874 (rejecting ineffective assistance of counsel claim; noting that "neither Appeals Court decision reversing suppression motions [cited by defendant Mejia] presented facts similar to this case"). We cannot conclude that defense counsels' failure to argue for the novel rule the defendants propound fell below what might have been expected of an ordinary lawyer on the date of trial.
Judgments affirmed.
Order denying motions for new trial affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 6, 2015.