Opinion
No. 9673CR290A-B
April 4, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL
INTRODUCTION
On December 4, 1997, a jury found the defendant Brian Gaboriault guilty on two counts of first degree murder for the deaths of his girlfriend, Jennifer Pike, and their eight week old son, Brian Gaboriault, Jr. Gaboriault now moves for a new trial pursuant to Mass.R.Crim.P. 30(b) on the ground that he was denied effective assistance of counsel due to counsel's failure to present expert testimony concerning the effects of sleep deprivation on his mental state, counsel's failure to elicit testimony from neuropsychological expert Chet Lesniak opining that the defendant was not criminally responsible for his actions, counsel's withdrawal of a criminal responsibility defense, counsel's failure to present the defendant in an unmedicated state during the trial, and counsel's failure to impeach prosecution witness Shawn Moniz. For the reasons discussed below, the defendant's motion is DENIED.
BACKGROUND
On August 22, 1996, a Bristol County Jury indicted the defendant Brian Gaboriault on two counts of murder in the first degree in violation of G.L.c. 265, § 1. Attorney Gerald FitzGerald (FitzGerald) was appointed to represent Gaboriault. FitzGerald immediately filed a notice of intent to rely upon a lack of criminal responsibility pursuant to Mass.R.Crim.P. 14(b)(2) and applied for and received funds for psychological testing and expert witnesses.
Prior to trial, Attorney FitzGerald filed a motion to suppress statements made by the defendant in a videotaped interview with police conducted on July 9, 1996, approximately eight hours after the killings. This Court held hearings on the motion to suppress on November 3 and 4, 1997. Fairhaven Police Detective Glenn Souza (Souza) and State Police Trooper Ronald Blais (Blais) testified that after arresting Gaboriault and arriving at the police station, Souza asked him if he was tired, to which Gaboriault responded that he had lain down on the grass and fallen asleep in the cemetery until he awoke to see a police officer approaching him. Souza read Gaboriault his rights and Gaboriault signed a Miranda waiver form, after which Souza and Blais interviewed him for one hour. Gaboriault told Souza that he was "screwed up in the head," "was losing it" and needed help, and that for four days he had "been in another world." Gaboriault further told Souza that the day before the killings, at Jennifer Pike's request, he went to a crisis center, where they said they could not help him, and then went to a psychologist, Dr. Smoula, and was given an appointment for the following morning. Gaboriault stated that after the killings, he had climbed to the roof of a building to throw himself off of the radio tower but could not do it. When Souza asked Gaboriault if he had done any drugs, Gaboriault stated that although he had done all kinds of drugs in the past, he had been clean for a year and was not under the influence of any drugs at that time.
Yvonne Gaboriault, the defendant's mother, testified that in the days leading up to the killings on July 8, Gaboriault was "acting really crazy", "flipping out," like "Dr. Jekyll and Mr. Hyde." She testified that for several weeks before the killings, Gaboriault had uncontrollable crying episodes during which he would bang his head against the tiles in the bathroom, that he and Pike were constantly fighting, crying and screaming, and that he was under intense financial pressure due to mounting bills and the family's imminent eviction.
Dr. Chet Lesniak, a clinical neuropsychologist, testified that on February 15 and March 15, 1997, over the course of over approximately ten hours, he administered a series of tests to Gaboriault to evaluate his neuropsychological functioning. Dr. Lesniak opined that Gaboriault suffered from an organic brain syndrome causing major impairments in his intellectual functioning, reasoning, judgment and control. Dr. Lesniak testified that Gaboriault's IQ was 78, on the border between low average and mentally retarded, and that he had the expressive language skills of an eleven year old. In addition, Dr. Lesniak testified that Gaboriault showed suicidal tendencies and opined that he suffered from dysthymic disorder, meaning long term depression. Dr. Lesniak testified that Gaboriault had a personality disorder in which when under situational stress, his thinking and emotions are disorganized. Dr. Lesniak further testified that Gaboriault suffered from post-traumatic stress disorder as the result of severe physical abuse by his father. Dr. Lesniak testified that at the time of the killings, Gaboriault was under severe stress due to his family relationships, his financial problems and his working repeated overtime shifts at work without breaks, and that this stress exacerbated the disorganization and difficulty coping caused by his organic brain disorder, depressive disorder and post-traumatic stress disorder.
Fairhaven Police Detective Omer Blanchette (Blanchette) testified that following the interview, he booked Gaboriault, asking him a series of questions listed on a suicide evaluation form. In response to the question, "Are you sad?" Gaboriault responded, "Like you would not believe." In response to the question, "Are you tired?" Gaboriault responded, "I have not slept in four days." In response to the question, "Are you confused?" Gaboriault responded, "Big time." In response to the question, "Do you hear voices?" Gaboriault responded, "I hear voices all the time. I talk to myself." In response to the question, "Have you tried to commit suicide?" Gaboriault responded, "I have tried to kill myself plenty of times." Blanchette testified that according to the results of the evaluation, Gaboriault was at risk for suicide. Following all of this testimony, this Court denied the motion to suppress, concluding that the defendant's waiver of his Miranda rights and statements to police were voluntary, knowing and intelligent.
Gaboriault was tried before a jury from November 13, 1997 to December 4, 1997. In his opening statement, on November 18, 1997, defense counsel Attorney FitzGerald stated:
this case . . . is no way about whether or not Brian Gaboriault killed the two persons he most loved in the world. He most certainly did . . . This case is about whether or not the Commonwealth proves to you beyond any reasonable doubt that within the meaning of the law as the judge will give it to you at the close of this case, that those acts were the acts of a criminally responsible, euphemistically a sane man. You have to decide whether or not someone, as Mr. Moses has just told you, who stabbed an eight week old child, his son, to death in this manner because he didn't like the clothes that his girlfriend wore, whether that person is sane or not within the meaning of the law, or whether he has the capacity, the ability to fully premeditate the acts. That's what this trial's about. Later in the opening statement, Attorney FitzGerald stated: the question of criminal responsibility, that is whether someone as a result of a mental disease or defect is unable to appreciate the wrongfulness of his act, or being able to appreciate right from wrong, is unable to conform his conduct to the requirements of the law. Or if you find that not to be the case, another issue is whether or not the defendant is fully capable, if he has the full substantial capacity to premeditate within the meaning of that term as his Honor will describe it and instruct it to you.
The first witness was State Police Trooper Joseph Condon (Condon) from Crime Scene Services, who testified that at 10:30 p.m. on July 8, 1996, he was called to the Gaboriault residence at 26 Middle Street in Fairhaven. Condon then walked the jury through a videotape of the crime scene which he filmed that evening. The next witness was Dale Linden, a signal processing analyst with the FBI, who testified as to audio enhancements made to a videotape received on August 5, 1996 from State Police Trooper Ronald Blais.
The next witness was Fairhaven Police Sergeant David Sobral (Sobral), who testified that at approximately 10:00 p.m. on July 8, 1996, he responded to a dispatch call of a disturbance at 26 Middle Street. When he arrived, he saw Yvonne Gaboriault laying on the ground in front of 24 Middle Street, crying and screaming that someone had been stabbed in the house. When Sobral asked what had happened, Mrs. Gaboriault stated, "Brian did it! Brian did it!" Sobral then described entering 26 Middle Street and discovering eight week old Brian Gaboriault, Jr. in his crib, still alive, with a large steak knife protruding from his chest, and discovering Jennifer Pike dead from multiple stab and slash wounds. Fairhaven Police Detective Michael Botelho (Botelho) then testified that after arriving at the scene shortly after Sergeant Sobral, he asked Yvonne Gaboriault who had done this and she responded, "My son, Brian Gaboriault." Botelho also testified as to the efforts the police officers made to save the life of Brian Gaboriault, Jr.
The next witness was Police Officer and Emergency Medical Technician Phillip Lacerda, who testified that he assisted the other officers on the scene in attempting to save the baby's life. The jury further heard testimony from Police Officer David Wordell, who testified to the numerous stab and slash wounds he observed on Jennifer Pike, and his observation of a pair of green gym shorts and a bloody footprint on the floor near her body, and a pair of bloody socks on the floor in the baby's room.
State Police Detective Christopher Dolan (Dolan) then testified that he participated in a search of the scene at 26 Middle Street in the early morning hours of July 9, 1996. Dolan testified that he found a wallet in the front room of the apartment containing Gaboriault's identification and an appointment card to see Dr. Solomon on Tuesday, July 9 at 1:00 p.m. He then described and authenticated various items of clothing taken from the victims during the autopsy, and described the knife removed from the baby's chest as a knife with a seven inch black handle and five inch long, serrated blade which was three-quarters of an inch wide.
The next witness was Sally Oliveira (Oliveira), who testified that in July of 1996, she lived in Fairhaven, was Jennifer Pike's best friend, and had known Gaboriault for five or six years. Oliveira testified to various incidents demonstrating that Gaboriault was controlling and obsessive with Jennifer Pike, would not let her see her friends, and controlled the clothing she wore. Oliveria further testified that about two weeks before the killings, while she was talking to Jennifer Pike on the phone, Gaboriault took the phone from Jennifer Pike and asked Oliveria, "Sally, does Jen tell you sometimes I feel like killing her?" During another phone conversation around the same time, Jennifer Pike asked Oliveria to come get her, whereupon Gaboriault took the phone from her and told Oliveria, "If you come and get her, I'm going to fuck you up and I'm going to fuck your car up." Oliveria testified that on July 5, while Jennifer Pike was holding her stomach and complaining that she felt sick, she observed Gaboriault forcefully pinch Jennifer several times and order her to clean up the apartment. Oliveria further testified that the following day, July 6, Gaboriault called her, crying and upset, looking for Jennifer Pike and the baby, who had moved out of the apartment. Oliveria told Gaboriault he did not deserve to get Jennifer Pike back because he had hit her, and Gaboriault responded, "Every time I look at her and I see her happy, I want to make her upset like me." On cross-examination, Oliveria admitted that she had never seen Gaboriault hit Jennifer Pike until the pinching episode on July 5. She further admitted that Gaboriault's behavior was more strange than usual in the days before the killings.
The next witness was Heather Goulet (Goulet) who testified that she was a close friend of Jennifer Pike and that Gaboriault controlled her friendships and clothing. Goulet testified that while she was at 26 Middle Street in November of 1995, Gaboriault and Jennifer Pike had an argument during which Gaboriault picked up and threw a coffee table and then smacked Jennifer Pike across the face. Goulet further testified that in June of 1996, Gaboriault told her that if Jennifer Pike ever left him, he would kill her. On cross-examination, Goulet admitted that she had not come forward with the information about Gaboriault striking Jennifer Pike until a few weeks before trial.
The trial resumed on November 20, 1997, at which time the defense called one of its witnesses, Dr. Chet Lesniak (Lesniak), out of turn. Dr. Lesniak testified that he was a licensed clinical psychologist and had met with Gaboriault at Bridgewater State Hospital for five hours on February 15, 1997 and five hours on March 15, 1997 to perform a neuropsychological evaluation at the request of psychiatrist Marc Whaley. Dr. Lesniak testified that before conducting the tests, he reviewed Gaboriault's school and medical records, records of prior psychological evaluations, and the police reports and interviews in the case. Through review of the records, Dr. Lesniak learned that Gaboriault had a history of bruises throughout his school years and that when he was eight years old, DSS was called after his father kicked him with a steel tipped boot. The records showed a history of Gaboriault being beaten by his father with steel rods, belts, fists and other implements. In addition, Gaboriault had a history of self-mutilation, burning himself with cigarettes and banging his head against walls when he was upset. Dr. Lesniak testified that he took a patient history in which Gaboriault reported a history of severe headaches, bicycle and motorcycle falls, and boxing for three and a half years as a silver mitten, a sparring partner for professional golden gloves boxers.
Dr. Lesniak testified that at the time he performed the neuropsychological evaluation, Gaboriault was on Prozac, an antidepressant, Ativan, an anti-anxiety drug, and Paxil, a drug used to treat depression and/or anxiety. He stated that although Gaboriault had been given a psychological evaluation in the past, including intelligence and achievement tests, he had never received a full neuropsychological evaluation. Dr. Lesniak testified that according to his testing, Gaboriault had an IQ of 78, on the borderline between low average intelligence and mental retardation. According to school records, Gaboriault was a special needs student with an individualized educational plan. Gaboriault's score on the verbal test, which measures verbal reasoning and comprehension, logical reasoning, sequencing, common sense and social judgment, was 74, in the borderline range, while his score on the performance test, which measures things such as object assembly, was 92, in the normal, average range. Dr. Lesniak testified that two past IQ tests showed Gaboriault to be in the average range, and that the fall to borderline average could be caused by factors such as the trauma of physical abuse, head injuries, and substance abuse. He stated that in his opinion, depression would not effect the results of an IQ test.
Dr. Lesniak opined that Gaboriault suffered from an organic brain disorder, physical changes in the brain itself, which could have resulted from physical abuse, head injuries, and substance abuse. He further opined, based on the results of various emotional and personality tests, that Gaboriault suffered from chronic long term depression, and was experiencing a chronic situational overload, in which stress causes one to become psychologically disorganized, merging his thinking and emotions, and fall apart. Dr. Lesniak explained that this occurs when a person experiences distress for so long that his personality organization changes, or his functioning changes, or he simply becomes overwhelmed and has a nervous breakdown.
On cross-examination, Dr. Lesniak stated that he performed the neurological testing at the request of Dr. Whaley and reported the test results to both Dr. Whaley and Attorney FitzGerald. Dr. Lesniak stated that he was not asked to determine whether Gaboriault was criminally responsible for his conduct on July 8, 1996. He further stated that he had never done that type of examination previously. Dr. Lesniak admitted that he did not talk to anyone other than Gaboriault in forming his conclusions, and that he relied on the self-reported history and took Gaboriault's statements at face value. Dr. Lesniak further agreed that Gaboriault's being controlling and inflexible was consistent with the test results. Dr. Lesniak agreed that Gaboriault was depressed while at Bridgewater State Hospital when the tests were administered, and that killing two people and being charged with murder were rational reasons for being depressed. He admitted that according to the records, the physical abuse of Gaboriault ended when DSS intervened when he was eight and a half, at which time his IQ was average. Dr. Lesniak testified that he did not order a CAT scan or EEG to determine organic brain damage because it would not have proved anything. He could not recall whether or not he gave tests for malingering on both days of testing. Dr. Lesniak admitted that he did not try to verify Gaboriault's claim of being a silver mitten, did not ask if he wore a helmet, and never saw anything in the medical records indicating that he had ever been knocked out. On redirect examination, Dr. Lesniak testified that he did not believe that Gaboriault's test results were caused merely by a learning disability. He further stated that he was very certain that Gaboriault did not manipulate the results of the tests.
The prosecution then called its next witness, Shawn Moniz (Moniz), who testified that he had been friends with Gaboriault for more than ten years. Moniz testified that he had never seen Gaboriault fight in any silver mitten matches. He stated that he knew Jennifer Pike and that he had dated her. He stated that on July 8, Gaboriault called and asked him if he wanted to lift weights together, after which Moniz spent approximately an hour and a half lifting weights with Gaboriault at 26 Middle Street. Moniz testified that Gaboriault behaved in a normal manner, seemed fine, and did not seem particularly upset. After they finished working out, Moniz drove Gaboriault to Jennifer Pike's house. Gaboriault went inside with Jennifer Pike and her parents, while Moniz waited outside. Eventually, Moniz was invited in, and remained there for about one half hour. He did not notice anything unusual about Gaboriault's behavior at this time. On cross-examination, Moniz admitted that Gaboriault had a heavy punching bag and boxing gloves at his house.
The next witness was Albert Pike (Pike), who testified that he was Jennifer's father and that after she moved in with Gaboriault, her attitude changed and she was no longer a happy person. Pike testified that they didn't see her as much as they used to, and she was always accompanied by Gaboriault or his mother. Pike testified that on July 5, 1996, Jennifer called and her mother picked her up at 26 Middle Street and brought her home. Pike had his other daughter Carol go to Middle Street and retrieve all of Jennifer's clothing and possessions, after which Jennifer spent the night at Carol's house. When Pike returned home from work on July 8, Gaboriault was outside the house. They went in the house and Pike made dinner for everyone. Yvonne Gaboriault also arrived and stayed for dinner. Pike talked to Gaboriault about his relationship with Jennifer and about how to handle financial matters. Gaboriault stated that he had agreed to get counseling. Pike thought that Gaboriault understood his remarks and was sincere. Around 9:00 p.m., the Gaboriaults went home and Mrs. Pike followed with Jennifer and the baby. About an hour after Mrs. Pike returned home, Yvonne Gaboriault called to tell them that Gaboriault had stabbed Jennifer. On cross-examination, Pike stated that he would not have allowed Jennifer and the baby to move back in with Gaboriault if he thought something bad was going to happen.
Carol Arruda (Arruda), Jennifer's sister, testified that while Jennifer was staying at her house on July 7, Gaboriault came to her house and said he wanted Jennifer and the baby back and would do anything to get them back. Arruda testified that Jennifer called Gaboriault around 6:00 p.m. that evening and spoke to him until 10:00 p.m., when she went to bed. The following day, during dinner at the Pike house, Gaboriault nodded in response to Mr. Pike's remarks and stated that he had made a counseling appointment for the following day.
The trial resumed on November 21, 1997, at which time Janice Pike, Jennifer's mother, testified that during dinner on July 8, Gaboriault stated, "I'm not ready to kill anybody or anything like that." The next witness was Fairhaven Police Lietenant Donald Joseph (Joseph), who testified that at 10:00 p.m. on July 8, 1996, he took charge of the crime scene at 26 Middle Street. At approximately 5:25 the next morning, he was looking for Gaboriault in Riverside Cemetery and walked to an area called Tin Can Island, where he saw a man standing near the tree line. He asked the man if he was Brian Gaboriault and when the man responded affirmatively, Joseph arrested him.
Gaboriault appeared sober, and Joseph read him his Miranda rights. Joseph then asked why he did it, to which Gaboriault responded that he could not take it anymore and he was going to lose her anyway. Gaboriault stated that he had planned to jump off the radio tower but could not do it. Joseph asked him if he wanted to talk to Detective Souza, and Gaboriault said he did. On cross-examination, Joseph admitted that he knew Gaboriault had a personal relationship with Souza and was more likely to talk to him. He agreed that Gaboriault had not been hiding in the woods, but was out in the open. He further agreed that Gaboriault was not violent during his arrest.
The next witness was Joseph Baron (Baron), who testified that as he pulled into the driveway of his house at 15 Deane Street at 1:45 in the morning of July 9th, he saw Gaboriault, a friend of his son Peter, sitting on his front porch. Gaboriault stated that he was looking for Peter, and Baron let him into the house. When Baron asked him how he was doing with the wife and baby, Gaboriault responded, "They're gone. They disappeared on me. I've been looking for them for a few days." Baron testified that Gaboriault was in the house for approximately fifteen minutes and appeared coherent. After Gaboriault drank three-quarters of a glass of orange juice, he left. On cross-examination, Baron stated that Gaboriault seemed normal, maybe just a little nervous that Peter was not at home. Baron stated that his house was about a ten minute walk from Riverside Cemetery.
Fall River Police Detective Glenn Souza (Souza) testified that when he arrived at the cemetery, Gaboriault told him, "I'd like to talk to you. I need to talk to you." Souza stated that they could talk at the police station, and transported him to the Fairhaven Police Headquarters. Souza testified that after being advised again of his Miranda rights, Gaboriault spoke to police for almost an hour. Gaboriault stated that he had known Jennifer Pike for approximately two years, they had moved in together a year ago, he bought her a two thousand dollar diamond ring, and that they had decided to have a baby, their son, Brian, Jr. Gaboriault stated that he and Jennifer Pike had been fighting all the time because her shorts were too tight and he was jealous. He stated that he was "losing it" and that he had made an appointment to see a Dr. Smola, but had not gone yet. He also went to the Crisis Center but was turned down because of his insurance. Gaboriault stated that on July 5th, he struck Jennifer Pike after an argument in which he asked her about her past boyfriends.
The defendant was apparently confused as to Dr. Solomon's name.
Souza further testified that Gaboriault stated that on July 6th, when he returned home from work, he observed that Jennifer Pike had left him, taking the baby and their clothes. On July 8th, he went to the Pike house and met with Jennifer to get her and the baby back to his house. Gaboriault stated that he and Jennifer had never been apart, that he could not live without her, and that he planned to kill Jennifer, the baby and himself after they returned to his house. He stated that Jennifer told him that for the short time she had been away, she felt like she was out of prison, and although she and the baby moved back into the house, he pictured them leaving again. Gaboriault stated that for four days he had been in another world and was "losing it" and that he had told Jennifer all the time that she was not going to leave him. He stated that he took a large steak knife from the kitchen sink, wrapped it up in a shirt and placed it under a chair in the living room. Gaboriault said that he went into the spare room, where Jennifer Pike was sitting on the floor and stabbed her. She did not try to protect herself, but stated, "I'm dying." Gaboriault told Blais that he did not plan to kill the baby, but did not want the baby growing up without a mother and father. He went into the bedroom and stabbed the baby who was lying in the crib. When asked about bloody socks found at the crime scene, Gaboriault stated that he took them off so that he would not leave a trail for police. Gaboriault stated that he went to Tin Can Island and slept for a little while, then went to his friend Peter Baron's house, and Peter's father gave him a glass of orange juice. Gaboriault called his house but when police answered, he hung up. He returned to the cemetery and slept again until he woke up and saw a police officer. He stated that he asked if Jennifer and the baby were still alive. Upon being informed that they were dead, Gaboriault stated that he was going to kill himself. When asked if he had washed after the killings, Gaboriault stated that he had washed up in the Acushnet River.
On cross-examination, Souza testified that during the confession, Gaboriault was upset but did not appear confused. Souza admitted that Gaboriault had been questioned before he was booked. He further admitted that he did not ask Gaboriault if he wanted to see a doctor until the end of the interview. Souza agreed that shortly after the interview ended, he attempted to call Yvonne Gaboriault and told the person who answered that Gaboriault was "very, very mixed up right now."
The trial resumed on November 24, 1997, with the testimony of Leon Janikian, who explained the steps he had taken to enhance the sound on a videotape of Gaboriault's confession. The next witness was Patricia Beehan, who testified that she was a state police officer who worked in Crime Scenes Services and described testing she conducted on the crib mattress at 26 Middle Street to determine the depth of the knife marks. State Police Trooper Ronald Blais then testified concerning Gaboriault's confession, and gave testimony substantially similar to that of Officer Souza. Following Blais' testimony, the videotaped police interview was played for the jury.
The trial resumed on November 25, 1997, with the testimony of Amy LaRose (LaRose), who stated that she knew Gaboriault and his mother, Yvonne. LaRose testified that on July 6, 1996, she was at Peter Baron's house with Gaboriault and Yvonne Gaboriault. Gaboriault wanted a ride to Fall River to look for Jennifer Pike. When LaRose refused to give him a ride or let him use her car, Gaboriault stated that if Jennifer Pike left him, he would kill them all. He then stated, "If I can't have them, nobody can." On cross-examination, LaRose testified that when Gaboriault was mad at his friends, he often said he would kill them, so she did not think Jennifer Pike's life was in danger.
The next witness was Richard Iwanicki (Iwanicki), a forensic chemist for the State Police Crime Laboratory, who testified that he performed blood tests and collected evidence at 26 Middle Street on July 8, 1996. Iwanicki testified that Gaboriault's palms, fingers and forearms all tested positive for the presence of blood. On cross-examination, Iwanicki admitted that he had not performed blood typing on any of the items found at the crime scene. Medical Examiner James Weiner then testified as to the cause of death of the victims and the extent of their injuries.
The defense then presented its case. The first witness was Jane Bruce (Bruce) who testified that she owned the apartment building at 26 Middle Street and rented an apartment to Yvonne Gaboriault. Bruce testified that on July 8th, she called Yvonne Gaboriault and gave her notice that she planned to evict her for failure to pay rent. Fairhaven Police Officer Omer Blanchette (Blanchette) then testified that he performed a suicide evaluation on Gaboriault as part of the booking procedures following his arrest and interview with police.
Yvonne Gaboriault (Mrs. Gaboriault), the defendant's mother, testified that Gaboriault's father physically abused him, hitting him with a belt, golf club or any other object around, and banged his head against the wall and a truck. She stated that DSS became involved with the family when Gaboriault was nine years old, after which the abuse became verbal rather than physical. She further testified that Gaboriault was in a special needs program in school and was simply passed from one grade to another.
The trial resumed on November 26, 1997, with further testimony from Mrs. Gaboriault, who stated that following her husband's death in August of 1994, she and Gaboriault often discussed her desire to commit suicide. She testified that Gaboriault's relationship with Jennifer Pike began to deteriorate after the baby was born in May of 1996, and he became obsessed with controlling her, particularly her clothing. She further testified that Gaboriault would start arguments with her and Jennifer Pike and then end up crying uncontrollably. He would state that the pressure was too much, and then go into the bathroom and bang his head on the tiles and cry. Mrs. Gaboriault testified that Gaboriault attempted suicide in December of 1994 and again in 1995 by overdosing on epilepsy, blood pressure and diabetes medication in the house. In June of 1996, following an argument with Jennifer Pike, Gaboriault called 911 and stated that he was going to kill his girlfriend, then left the house before police arrived.
Mrs. Gaboriault testified that on July 4, she was frustrated with the crying and screaming between Gaboriault and Jennifer Pike, so she took a kitchen knife to scare him, and when he struggled to get the knife away from her, it sliced Gaboriault's arm. He screamed, "You're my mother. How could you have done this to me?" Gaboriault stood there shaking, crying and holding the knife up to himself and saying, "Hah, hah, hah!" like a wild person. Jennifer Pike started yelling at him, "Brian, think of your baby, think of your son. We need you." The phone then rang, and Gaboriault suddenly snapped out of it. Mrs. Gaboriault testified that the following day, July 5th, Gaboriault and Jennifer Pike were having an argument, after which she walked in to see Jennifer holding the side of her face. Jennifer Pike stated, "He promised he wouldn't get mad and hit me." She testified that Gaboriault was awake most of the nights of July 4th and 5th, arguing with Jennifer Pike. She could hear them arguing because she was up all night with the baby.
Mrs. Gaboriault testified that on July 6, 1996, Jennifer Pike and the baby moved out of the house. When she and Gaboriault arrived home and realized this, Gaboriault ran through the house, screaming Jennifer's name and looking for her. Gaboriault and his mother drove to the Pike house and Gaboriault banged on the door, screaming Jennifer's name, and then fell to the ground, screaming her name, when no one answered. All evening, Gaboriault tried to find someone to drive him around town to look for Jennifer Pike. Mrs. Gaboriault testified that she was in Gaboriault's room with him all night, from 9:00 p.m. to 3:00 or 4:00 a.m. while he was on the phone with Jennifer Pike and that he did not sleep or eat at all that night. She further testified that he spent most of July 7th on the phone with Jennifer Pike, until 3:00 a.m. the next morning, and refused to eat. Jennifer kept insisting that Gaboriault needed help and should get counseling.
Mrs. Gaboriault testified that on July 8th, she drove Gaboriault to the Pike house. After Gaboriault talked to Jennifer Pike for an hour or two, his mother drove him to the Child and Family Services Crisis Center on Myrtle Street in New Bedford. Gaboriault stated that he had struck his girlfriend and needed help, but was told that the center did not take his insurance. Gaboriault then went to the office of a psychologist, Dr. Solomon, who said he could give him an appointment next week, but after listening to Gaboriault for about fifteen minutes, told him to come back at 1:00 p.m. the following day for an appointment. That afternoon, Gaboriault and Mrs. Gaboriault went back to the Pike house and stayed for dinner, following which Jennifer Pike and the baby moved back in with him.
Mrs. Gaboriault testified that after they returned home, the landlord called and told her that they owed too much rent and she was going to evict them. When she told her son, he stated, "I can't worry about that now, I have to worry about keeping my family together." Ten minutes later, Mrs. Gaboriault went outside to tell her neighbor about the eviction, and fifteen minutes later, heard screaming in the apartment. She saw Gaboriault stabbing Jennifer Pike, who cried, "You're killing me." and ran outside to call 911.
On cross-examination, Mrs. Gaboriault admitted that she reported to DSS that her husband's physical abuse of Gaboriault stopped at age nine. She further admitted that prior to July 8, Gaboriault had never been hospitalized for depression or for attempted suicide, and that he had refused to go to any kind of counseling until Jennifer Pike insisted on it as a condition of moving back in with him. She admitted that on the evening of July 7th, Gaboriault lay down in bed and she was not positive that he did not get any sleep, although she heard he and Jennifer Pike arguing most of the night. She denied that when she took Gaboriault to the Crisis Center, they told him that although he had the wrong insurance, their policy was not to turn away anyone in need of immediate psychiatric help. She admitted that counseling was available at Gaboriault's workpace at Achushnet Company, but that he never took advantage of it. Mrs. Gaboriault further testified that during dinner at the Pike house, Gaboriault promised that he was going to straighten out and get counseling. She stated that he did not eat dinner, although he did eat a peach.
The trial resumed on December 1, 1997, with the testimony of Marc Whaley, a psychiatrist who was retained by the defense to evaluate Gaboriault. Dr. Whaley testified that because he suspected that Gaboriault suffered from an organic brain disorder, he retained Dr. Chet Lesniak to give Gaboriault a battery of neuropsychological tests. Dr. Whaley testified that in reaching his diagnosis, he interviewed Yvonne Gaboriault and interviewed Gaboriault for two hours on July 19, 1996 and for one hour on May 17, 1997, and in addition reviewed a forensic mental health evaluation of Gaboriault dated July 9, 1996, Dr. Lesniak's report, police reports and videotapes connected to the case, and Gaboriault's school records and medical records. Dr. Whaley opined that Gaboriault suffered from dysthymia, a chronic form of depression, and was vulnerable to having periods of major depression with symptoms such as sleep disturbance, anxiety, impaired concentration, poor appetite, and suicidal ideas. Dr. Whaley stated that Gaboriault had all these symptoms in the days preceding the killings, but did not have any psychotic features. Dr. Whaley further opined that Gaboriault suffered from post-traumatic stress disorder, an anxiety condition caused by the physical abuse he suffered at the hands of his father. In addition, Dr. Whaley opined that Gaboriault suffered from a mixed personality disturbance characterized by impulsiveness and an obsessive need to control others, particularly those that are intimate with him. Finally, Dr. Whaley opined that Gaboriault suffered from an organic brain disorder which produced an inability to think before he acts. Dr. Whaley opined that Gaboriault was not completely lacking in criminal responsibility but that he was substantially lacking in an ability to premeditate his actions with respect to the killings or to appreciate the suffering of his victims.
On cross-examination, Dr. Whaley testified that in his opinion, Gaboriault did not suffer from a major mental illness or defect to warrant consideration under the legal standard for criminal responsibility. He admitted that when he interviewed Gaboriault in prison, Gaboriault was depressed and that his killing of the victims and the murder charges against him were rational reasons for depression. Dr. Whaley admitted that Gaboriault did not have any history of mental illness, suicide attempts requiring treatment or psychological counseling, nor did he have a history of being knocked unconscious. He further agreed that according to the records he reviewed, Gaboriault had a history of behavioral problems in school, aggressiveness, and being inflexible and controlling.
Dr. Whaley admitted that Gaboriault's statements indicating that he killed Jennifer Pike because he was going to lose her anyway could suggest reflection and motive suggestive of premeditation, and stated that he considered that in forming his opinion. He further stated that he considered Gaboriault's admission that he had planned to kill Jennifer Pike when he went to the Pike house and his statements to others that if she ever left him, he would kill her. Dr. Whaley testified that during the examination, Gaboriault was not psychotic, delusional or experiencing hallucinations. He stated that there was no question that Gaboriault knew that he had the knife in his hands when he stabbed the victims. On redirect examination, Dr. Whaley opined that Gaboriault had a significant impairment in his ability to fully premeditate the killings and to appreciate the extreme cruelty and atrocity of his acts. He testified that in describing the killing of the baby, Gaboriault reported that "he didn't know what he was doing" and it was "like he had turned evil." Dr. Whaley stated that the fact that Gaboriault heard Jennifer Pike state that she was dying did not necessarily mean that he understood the consequences of his actions. Finally, he stated that the only sign of mental illness he observed in Gaboriault in the booking tape was depression, but that he could not necessarily detect signs of mental illness just by looking at someone.
The next witness was Sandra Frias (Frias) who testified that in July of 1996 she had lived next door to Gaboriault for four years. Frias testified that in the weeks preceding July 8, 1996, Gaboriault was acting differently, with outbursts of temper and wild looking eyes. She testified that on July 8, she gave him a birthday present and he asked her, "When is my birthday?" and his eyes looked like he did not know where he was. On cross-examination, Frias admitted that she was a friend of Yvonne Gaboriault and that she never told police or the defendant's investigator what she had just testified to.
The prosecution then began its rebuttal case by calling Benjamin Murawski (Murawski), a clinical psychologist with a sub-specialty in neuropsychology, who testified that he reviewed Dr. Lesniak's report, Dr. Lesniak's deposition testimony, Dr. Whaley's report, and Gaboriault's school records. Murawski opined that Gaboriault's IQ tests reflected a learning disability and not an organic brain disorder. He further stated that depression could affect performance on an IQ test and result in lower scores, since bonus points are given for speed in answering. Murawski stated that Dr. Lesniak should have followed up his evaluation with a Wechler Memory Test and an EEG test, MRI and CAT scan. Murawski testified that for brain function to be affected by boxing injuries would require hundreds of episodes of being knocked unconscious, and that for brain function to be affected by substance abuse would require ten years of very heavy drinking. On cross-examination, Murawski admitted that he shared office space with Dr. Martin Kelly, the prosecution's expert witness, and that the prosecution was paying him $175 per hour to testify. He stated that he had not interviewed or evaluated Gaboriault directly. He admitted that a CAT scan would not necessarily detect an organic brain disorder.
The trial resumed on December 2, 1997 with the testimony of Paul Solomon (Solomon), a psychologist practicing at 384 County Street in New Bedford, who was called to testify by the Commonwealth. Solomon testified that on July 8, 1996, at approximately noon, Gaboriault and his mother came to his office. Mrs. Gaboriault stated that her son had been arguing with his girlfriend, who would not live with him until he got some kind of treatment, and the Crisis Center had turned them away for insurance reasons. Solomon testified that he gave Gaboriault an appointment for the following week, but Mrs. Gaboriault stated that he needed one sooner so that he could move back with his girlfriend. Solomon then gave him an appointment for the following day. Solomon testified that Gaboriault appeared anxious and impatient but did not appear to need immediate psychiatric intervention. On cross-examination, Solomon denied concern about potential litigation as a result of his actions on July 8, and stated that he was telling the truth. He admitted that Gaboriault had stated that he "needed help real bad." However, Solomon stated that he was not concerned about the urgency of Gaboriault's problem but rather, gave him an appointment the next day for Gaboriault's convenience.
The defense then presented the testimony of Charlotte Denton (Denton), a psychologist employed by the Massachusetts Department of Health. Denton stated that she performed a court ordered screening evaluation of Gaboriault on July 9, 1996 to determine his competency to stand trial and criminal responsibility. Denton testified that although Gaboriault was alert and oriented, he was highly anxious and depressed, with limited motor behavior and limited affect. She further opined that Gaboriault had poor insight and judgment and low concentration. Gaboriault reported being obsessed with Jennifer Pike in the days preceding the killings and not eating or sleeping. Denton opined that Gaboriault "was at least psychologically and perhaps physically almost walking around in circles, not knowing what he was doing." Denton stated that her recommendation was that Gaboriault be sent to Bridgewater State Hospital for further evaluation.
On cross-examination, Denton testified that at the time of her evaluation, although Gaboriault understood the charges against him, she felt he might be suicidal. She admitted that there were rational reasons for Gaboriault's depression. She stated that there was no history of treatment of mental illness and Gaboriault did not appear to have any perceptual abnormalities such as hallucinations.
Prosecution witness Dr. Martin Kelly (Kelly) then testified that he was a psychiatrist who performed a criminal responsibility evaluation on Gaboriault on July 21, 1997. Dr. Kelly stated that he also reviewed police reports and tapes and some medical records. Dr. Kelly opined that on July 8, 1996, Gaboriault did not have a mental disease or defect which disrupted his capacity to appreciate the wrongfulness of his conduct or capacity to conform his conduct to the requirements of the law. Dr. Kelly further opined that Gaboriault did not suffer from any mental disease or defect that prevented him from being able to deliberately premeditate his actions. He stated that Gaboriault's statements that he would kill Jennifer Pike if she left him and his thoughts of killing her prior to July 8 suggested an ability to premeditate and to appreciate the wrongfulness of his conduct, as did his seeking counseling so that Jennifer Pike would return and his conduct following the killings.
On cross-examination, Dr. Kelly admitted that before reaching his opinion, he did not speak to any other psychologists who had examined Gaboriault around the time of the killings. He stated that he reviewed records from Bridgewater State Hospital but did not agree with the finding in August of 1996 by Dr. O'Connor that Gaboriault had a major mental illness. He stated that he did not speak to any witnesses, but relied on the police witness reports. Dr. Kelly admitted that chronic physical abuse of a young child could affect that child's mental status as an adult, but that he had not mentioned that in his report.
The trial resumed on December 3, 1997 with closing arguments. In his closing statement, defense counsel argued that the case was not about whether Gaboriault killed the two people he loved most but rather, it was about whether Gaboriault was guilty under the law, and if so, of what crime. Counsel argued, "this is a man for whom the needle on the compass began to jerk at some point in time early on in his life and increased in its jerking and increased and increased until it flew right off the compass on the 8th of July in 1996." Later in his closing argument, counsel stated:
can't you reasonably infer as intelligent people that the defense in this matter would have loved for Dr. Whaley to take the stand and say that man is crazy out of his mind and he should not be held responsible for anything? That's not what Whaley testified to. His opinion is not that. Whaley's opinion is "No, I don't think so. I don't think he is lacking in criminal responsibility completely. I do think, however, that he has a diminished capacity. That he has a mental impairment which diminishes his capacity, his ability to fully premeditate those acts[,]" and which also carries over into, as his Honor will explain later on in the law [,] what's called extreme atrocity and cruelty, the two mechanisms by which you as a jury could find him guilty of murder in the first degree.
Counsel further emphasized Gaboriault's history of abuse at the hands of his father and the emotional instability of his mother.
On December 4, 1997, the jury returned verdicts of guilty of murder in the first degree, based on the theories of deliberate premeditation and extreme atrocity or cruelty, and this Court sentenced Gaboriault to two life sentences at MCI, Cedar Junction, to be served consecutively.
Gaboriault now moves for a new trial pursuant to Mass.R.Crim.P. 30(b) on the ground that he was denied effective assistance of counsel due to counsel's failure to present expert testimony concerning the effects of sleep deprivation on his mental state, counsel's failure to elicit testimony from neuropsychological expert Chet Lesniak opining that the defendant was not criminally responsible for his actions, counsel's withdrawal of a criminal responsibility defense, counsel's failure to present the defendant in an unmedicated state during trial, and counsel's failure to impeach prosecution witness Shawn Moniz. This Court held an evidentiary hearing on the motion for a new trial on January 16 and February 5, 2001. Based on the credible testimony of the witnesses and exhibits presented, and the reasonable inferences to be drawn therefrom, this Court makes the following findings of fact:
FINDINGS OF FACT
Attorney Gerald FitzGerald has been practicing law since 1981, and began as an assistant district attorney. Thereafter, FitzGerald served as First Assistant Attorney General under James Shannon, then entered private practice between 1991 and 1999, following which he returned to the district attorney's office. FitzGerald has defended some 21 murder cases, approximately five of which involved lack of criminal responsibility.
Immediately after his appointment to represent Gaboriault, FitzGerald had Gaboriault sign a privacy waiver to obtain his Bridgewater State Hospital (BSH) records. However, other than the August 14, 1996 BSH competency evaluation, FitzGerald can not recall whether he reviewed the defendant's BSH records prior to trial.
FitzGerald's billing records indicate that he reviewed "all BSH records" on November 25, 1997, which was in the middle of the trial.
Immediately after his appointment, FitzGerald began looking for an expert to aid his case with respect to lack of criminal responsibility and related defenses. Dr. Marc Whaley was recommended to him by another well-respected defense attorney as a competent psychiatrist who was experienced in testifying. Dr. Whaley has performed more than 200 criminal responsibility evaluations over the course of twenty years, mostly on behalf of defendants. FitzGerald retained Dr. Whaley to perform a forensic psychiatric evaluation of Gaboriault to determine his mental state before and at the time of the killings as it would bear on criminal responsibility and his ability to form the specific intent for the crimes charged. FitzGerald told Dr. Whaley that he was looking for any information at all concerning Gaboriault's mental health that could possibly help the defense. FitzGerald provided Dr. Whaley with various documents including police and investigative reports, Gaboriault's prior court records, Gaboriault's school records, and Gaboriault's medical records regarding treatment received at St. Luke's Hospital on various dates between 1990 and 1994. FitzGerald did not provide Dr. Whaley with any BSH records other than the July 9, 1996 Forensic Mental Health Evaluation and the August 14, 1996, Competency to Stand Trial Evaluation. However, according to Dr. Whaley, FitzGerald provided him with all the documents he requested and all of the information he needed to make his criminal responsibility determination. Whaley never spoke to any of Gaboriault's treating clinicians at BSH, but was aware that Gaboriault was being treated with Prozac and Trazadone while at BSH.
Following his initial interview of Gaboriault, Dr. Whaley told FitzGerald that he had concern about the defendant's brain functioning and wanted to bring in another expert to evaluate that through neuropsychological testing. Dr. Whaley recommended Dr. Chet Lesniak for this task and FitzGerald retained Dr. Lesniak to conduct a battery of neuropsychological tests. Dr. Lesniak submitted his bills directly to Attorney FitzGerald, but gave his report to both Dr. Whaley and FitzGerald.
Dr. Whaley viewed the tests administered by Dr. Lesniak as a tool to assist him in his evaluation of the defendant. Dr. Whaley was particularly interested in what the neuropsychological tests would reveal about Gaboriault's intellectual capacity, capacity to solve problems, and ability to control impulses. Dr. Whaley never suggested to Dr. Lesniak that he should not provide his own independent insight into the defendant's criminal responsibility, but he did view Dr. Lesniak's role as limited, because Dr. Lesniak would not have all the relevant information. Dr. Whaley analogizes Dr. Lesniak's role to that of a radiologist who interprets an x-ray for an internist, with the internist then making a diagnosis in light of the overall picture. Dr. Whaley spoke to Dr. Lesniak in passing on the telephone about Dr. Whaley's findings with respect to the defendant's criminal responsibility but the two did not have a detailed discussion on that subject, and Dr. Whaley never asked Dr. Lesniak his opinion on that subject. It never occurred to Dr. Whaley to ask Dr. Lesniak if he had an opinion as to the defendant's criminal responsibility, and it would not be common practice to do so. Rather, Dr. Whaley understood Dr. Lesniak's role as providing specific information revealed through neuropsychological testing which Dr. Whaley himself lacked the expertise to conduct.
Attorney FitzGerald viewed Dr. Lesniak's purpose as assisting Dr. Whaley. Attorney FitzGerald does not recall Dr. Lesniak's having any particular knowledge of criminal responsibility, although as a neuropsychologist, he would not necessarily be disqualified from testifying as to criminal responsibility. FitzGerald never asked Dr. Lesniak to apply the legal standards of criminal responsibility to his findings, nor did he ever instruct him not to consider the issue of lack of criminal responsibility. However, FitzGerald did press Dr. Lesniak to tell him whether there was anything from his neuropsychological testing that would help the defense with respect to the motion to suppress the defendant's statements to police. Dr. Lesniak was well aware that the purpose of Dr. Whaley's evaluation of the defendant and the battery of psychoneurological tests was to determine whether the defendant lacked criminal responsibility. Dr. Lesniak never volunteered an opinion with respect to the defendant's criminal responsibility to either FitzGerald or Dr. Whaley. Attorney FitzGerald had extensive conversations with both Dr. Whaley and Dr. Lesniak concerning the defendant's mental state, and does not recall any disagreement between the two experts with respect to the defendant's impairment. Based on these conversations, FitzGerald did not believe that Dr. Lesniak held the opinion that the defendant was not criminally responsible.
Attorney FitzGerald was aware of Gaboriault's reported lack of sleep for several days preceding the killings from a number of sources including the defendant's own account, the defendant's mother, the screening report of Dr. Denton, and police reports. FitzGerald made an undated note in his file to ask the doctor if there was any possibility of a sleep disorder. FitzGerald was aware that sleep disorder is a distinct branch of psychiatry, but did not view sleep disorder as a major factor in the defendant's case. Attorney FitzGerald spoke to Dr. Whaley about the defendant's reported lack of sleep during the days preceding the killings, but did not specifically ask whether the defendant suffered from a sleep disorder. FitzGerald did not mention to Dr. Whaley that Gaboriault continued to have sleep difficulties while hospitalized at BSH. To the best of FitzGerald's recollection, neither Dr. Whaley nor Dr. Lesniak viewed the defendant's sleep deprivation as a significant factor bearing on a lack of criminal responsibility defense, and neither expert ever suggested to FitzGerald that he pursue the sleep deprivation issue further. Dr. Whaley is not a sleep disorder expert, although he is aware that sleep disorder is a recognized field and has read some scientific articles suggesting that sleep disorders may worsen the symptoms of post-traumatic stress disorder and depression. Dr. Whaley did consider Gaboriault's reported lack of sleep in forming his opinion with respect to criminal responsibility, although he did not view it as an important factor. Rather, he viewed the defendant's sleeplessness as both a symptom of and a contributing factor to the defendant's psychological turmoil at the time of the killings. Dr. Whaley does not recall discussing the specific issue of sleep deprivation with Dr. Lesniak.
The BSH medical records provided by counsel document Gaboriault's complaints about difficulty sleeping in September of 1996, March of 1997 and May of 1997.
Gaboriault was first committed to Bridgewater State Hospital (BSH) following his arrest and arraignment on July 9, 1996. On that date, pursuant to G.L.c. 123, § 15(a), he was evaluated by Division of Forensic Mental Health psychologist Dr. Charlotte Denton, who recommended that he be committed to BSH for a further competency evaluation. Gaboriault was then committed to BSH until August 16, 1996 pursuant to G.L.c. 123, § 15(b). While at BSH, Gaboriault received Atavin and Trazadone to help him sleep. Without these medications, he felt stressed and agitated. Gaboriault was found to be competent to stand trial, and following the expiration of his commitment, on August 16, 1996, he was transferred to the Dartmouth House of Corrections. At Dartmouth, Gaboriault did not get his medication for several days. He could not sleep, cried a lot and felt agitated. He attempted to hang himself using his shoelaces and lost consciousness. On August 19, 1996, Gaboriault was committed to BSH for thirty days pursuant to G.L.c. 123, § 18.
Defendant was represented by counsel at this commitment hearing, but that counsel was not Attorney FitzGerald.
On September 18, 1996, Gaboriault was committed to BSH for six months pursuant to § 18 and thereafter, was recommitted on March 21, 1997 for one year.
The defendant was represented by counsel at this hearing, but counsel was not Attorney FitzGerald.
At the time of trial in November of 1997, Gaboriault was taking Prozac, an anti-depressant, Ativan, a tranquilizer to treat anxiety, and Trazodone, an anti-depressant used to promote sleep. The defendant's dosage of Trazodone gradually increased during his stay at BSH due to sleeping problems. According to Gaboriault, the effect of these drugs was that he experienced less depression, less agitation and less emotion. In his words, the drugs dulled his emotions and made him feel "flat." He could not cry when he was on the medication, although on several occasions he wanted to cry. During the trial, Gaboriault consistently requested that he receive his medications, which he took voluntarily. He wanted the medications to help him sleep and make him feel better.
According to the BSH records provided by defense counsel, in October, November and December of 1997, Gaboriault was taking 40 mg of Prozac, 300 mg of Trazadone and 2 mg of Atavin daily.
Medical records from BSH provided by defense counsel detail Gaboriault's state of mind in the period immediately preceding and during trial.
On December 4, 1997, following his conviction, Gaboriault was sent to MCI, Concord and did not receive his medications for several days because they were out of stock. He had a "crying fit," became suicidal and on December 8, was transferred back to BSH for a time. Gaboriault voluntarily stopped taking his medications in 1998, while at MCI, Cedar Junction, because he wanted to experience more emotion and because he desired to kill himself. In addition, there is a stigma in prison attached to the use of psychiatric medication. Gaboriault has not made any suicide attempts since ceasing the medication.
Gaboriault now asserts that had he been apprised of a right to appear at trial unmedicated, he would have wished to do so. He believes that if he had been unmedicated, the jury would have seen him out of control and more emotionally disturbed and agitated.
Attorney FitzGerald is generally aware of a defendant's right to appear before the jury in an unmedicated state in connection with a lack of criminal responsibility defense, although he has not done any research on that specific issue. He does not recall discussing this issue with Gaboriault, and his trial notes do not reflect such a discussion. However, his trial notes also do not reflect any discussion with the defendant concerning the waiver of his constitutional right to testify, and Attorney FitzGerald specifically recalls extensive discussions with Gaboriault concerning that issue. Gaboriault himself does not remember Attorney FitzGerald ever raising the medication issue with him. Prior to trial, FitzGerald did not speak to the clinicians at BSH concerning Gaboriault's medications, but he was aware of the medications which Gaboriault was taking generally and from the reports of Dr. Whaley and Dr. Lesniak. When FitzGerald first met Gaboriault at his arraignment on July 9, 1996, Gaboriault was not on any medications. Gaboriault was calm and lucid at that time and was able to recall events and recount his history well. FitzGerald did not observe any signs that Gaboriault was suffering from a high level of anxiety at that time. FitzGerald did not notice any significant changes in Gaboriault's demeanor or behavior as a result of the medication regimen he began at BSH.
According to Dr. Whaley, who is also a psychopharmocologist, some patients taking Atavin, a tranquilizer used to treat anxiety, experience the side effect of lethargy. Some patients taking Trazadone, an anti-depressant used to promote sleep, experience a side effect of difficulty concentrating. Ativan, Trazodone and Prozac, individually and taken together, may blunt a patient's affect. Because Ativan can be dependent forming or addictive, a patient who stops taking the medication after a month of use may experience withdrawal symptoms including increased anxiety and agitation, tremors and in severe case, seizures.
While testifying at the hearing on the motion for a new trial, Gaboriault was not under the influence of any psychiatric medication. His demeanor was calm and controlled, and his responses to questioning were rational and lucid.
SUPPORTING AFFIDAVITS
In addition to the testimony and exhibits introduced at the hearings, the defendant has proffered two affidavits in support of his motion for a new trial. By way of affidavit, Dr. Lesniak avers that neither Attorney FitzGerald nor Dr. Whaley ever informed him of Gaboriault's reported sleep deprivation in the days preceding the killings. Further, Dr. Lesniak did not elicit this information from Gaboriault himself, and Gaboriault would not necessarily have recognized the clinical importance of disclosing this information. Dr. Lesniak further states that he was provided with 27 documents, which he acknowledges could have contained the information that Gaboriault reported being deprived of sleep for several days prior to the killings, although he has no recollection of whether that is in fact the case. However, Dr. Lesniak is certain that he never received the screening report of Dr. Denton, which noted Gaboriault's reported sleep deprivation. Dr. Lesniak's affidavit further states that Attorney FitzGerald never discussed with him the legal concepts of criminal responsibility, deliberate premeditation, or extreme atrocity and cruelty, and never asked him to offer any clinical opinion with respect to these concepts. Dr. Lesniak avers that had FitzGerald asked him to evaluate Gaboriault for criminal responsibility, he would have opined that Gaboriault was unable to conform his conduct to the requirements of the law as a result of his organic brain disorder and chronic depression, and was therefore not criminally responsible for the killings. Dr. Lesniak states that the additional factor of sleep deprivation would have been vitally important to his evaluation of Gaboriault, because it would have contributed to the view that he could not conform his conduct to the requirements of the law. In addition, sleeplessness would have led Dr. Lesniak to a diagnosis of bipolar affective disorder instead of simply chronic depression, which is significant because a person with bipolar disorder who is sleep deprived may be more likely to experience a psychotic process. Dr. Lesniak avers that had he been aware of the defendant's reported sleeplessness, he would have recommended that Attorney FitzGerald consult a sleep deprivation specialist.
For purposes of the present motion, this Court considers the content of the affidavits without passing on the credibility of the affiants. See Commonwealth v. Roberio, 428 Mass. 278, 281 (1998).
The defendant has also proffered the affidavit of Christian Gillin, M.D. (Gillin) in support of his motion for a new trial. Dr. Gillin is a California psychiatrist who specializes in the area of sleep and the neurophysiological, neurochemical and neuropsychological effects of sleep deprivation. According to Dr. Gillin, the study of sleep deprivation is a specialized and recognized area of research in the field of medicine which originated approximately thirty years ago, and is distinct from the practice of psychiatry or psychology. Dr. Gillin states that he has reviewed various documents in the case including the written evaluations of the defendant by Dr. Whaley and Dr. Lesniak, the written reports of Dr. Kelly and Dr. Denton, an August 15, 1996 evaluation of the defendant performed at Bridgewater State Hospital, and police reports. He opines that a sleep deprivation expert should have been consulted in this case.
Assuming that Gaboriault was sleep deprived for three and a half days prior to the killings, give or take a few hours of sleep, Dr. Gillin suspects that Gaboriault was experiencing an episode of psychotic mania, exacerbated by sleep deprivation at the time of the killings. However, Dr. Gillin states that he can not give this opinion to a reasonable degree of medical certainty without evaluating Gaboriault in person and conducting certain tests including an EEG, an MRI, a CAT-scan, a sleep deprivation evaluation, and a structured clinical interview diagnosis. Dr. Gillin opines that Dr. Whaley and Dr. Lesniak were remiss in not performing such tests. Dr. Gillin further states that if Gaboriault suffered from an episode of psychotic mania, he most likely would have lacked the capacity to conform his conduct to the requirements of the law, the capacity to act with deliberate premeditation, and the capacity to act with extreme atrocity or cruelty.
DISCUSSION
A motion for a new trial may be granted, within the judge's discretion, if it appears that justice may not have been done. Mass.R.Crim.P. 30(b); Commonwealth v. Moore, 408 Mass. 117, 125 (1990);Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). Gaboriault seeks a new trial on the ground that he received ineffective assistance of counsel due to counsel's failure to present expert testimony concerning the effects of sleep deprivation on his mental state, counsel's failure to elicit testimony from neuropsychological expert Chet Lesniak opining that the defendant was not criminally responsible for his actions, counsel's withdrawal of a criminal responsibility defense, counsel's failure to present the defendant in an unmedicated state during the trial, and counsel's failure to impeach prosecution witness Shawn Moniz.
In determining whether the defendant has received ineffective assistance of counsel under the Sixth Amendment and Article 12 of the Declaration of Rights, the court must examine whether there has been serious incompetency, inefficiency, or inattention of counsel; conduct falling measurably below that which might be expected from an ordinary fallible lawyer. Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000);Commonwealth v. Roberts, 423 Mass. 17, 20 (1996); Commonwealth v. Lanoue, 409 Mass. 1, 4 (1990); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If incompetency is found, the court must then determine whether it has deprived the defendant of an otherwise available, substantial ground of defense. Id. The court will not reverse a conviction unless the defendant demonstrates that better work might have accomplished something material for the defense. Commonwealth v. Whitman, 430 Mass. 746, 757 (2000); Commonwealth v. Street, 388 Mass. 281, 285 (1983).
The defendant first contends that trial counsel was ineffective in not investigating the effect of sleep deprivation on his mental state and procuring an expert to testify to the effects of sleep deprivation on individuals diagnosed with underlying psychiatric and neuropsychological disorders. The failure of counsel to investigate the only realistic defense a defendant has to the charges against him, where the facts known to or with minimal diligence accessible to counsel support that defense, falls below the level of competency expected of the ordinary lawyer and constitutes ineffective assistance of counsel. See Commonwealth v.Roberio, 428 Mass. 278, 280 (1998) (failure to investigate a possible insanity defense); Commonwealth v. Haggerty, 400 Mass. 437, 441-442 (1987) (failure to investigate the possibility that the victim's death from a heart attack was not proximately caused by the defendant's assault and battery). The present case is not one in which counsel acted as the sole determiner of the defendant's mental condition and failed to obtain an expert opinion. Compare Commonwealth v. Roberio, 428 Mass. at 279 (finding ineffective assistance of counsel where, despite evidence that the defendant had received mental health treatment at the suggestion of police, counsel failed to have the defendant psychiatrically evaluated). Rather, the issue is whether in light of counsel's awareness that the defendant reported being deprived of sleep for several days preceding the killings, it was incompetent to fail to recognize the importance of sleep deprivation as a critical element of the defendant's defense and to consult and retain a sleep deprivation expert.
This Court rejects the Commonwealth's assertion that the effect of sleep deprivation on an individual's pre-existing mental illness is a matter within the common experience and knowledge of jurors and therefore, does not require expert testimony. See, e.g., Commonwealth v.Cruz, 413 Mass. 686, 691 (1992) (noting that the effect which intoxication would have on a defendant's mental state was a proper subject of expert testimony).
Clearly, Attorney FitzGerald did recognize lack of sleep as a factor which could bear on the defendant's mental state, particularly with respect to the issue of the voluntariness of defendant's confession. Although he was aware of sleep disorder as a distinct branch of psychiatry, he did not recognize that the defendant's three days of reported sleeplessness was so potentially significant as to warrant investigation of sleep disorder as an independent factor in the criminal responsibility defense. This Court cannot deem counsel's failure in this regard to constitute serious incompetency, inefficiency, or inattention of counsel. That appellate counsel identified sleep deprivation as a critical element of a criminal responsibility defense apart from the underlying mental disorders identified by the experts in this case does not render trial counsel's failure to do so incompetent. The guarantee of effective assistance of counsel does not entitle a defendant to the best or most brilliant lawyer available, and counsel is not ineffective merely because a different or better result might have been obtained by a different lawyer. Commonwealth v. Bernier, 359 Mass. 13, 19 (1971). "Any lawyer combing the record can try the case better." Commonwealth v.Carlos, 38 Mass. App. Ct. 929, 932 (1995). The test for ineffective assistance of counsel is not to be made with the advantage of hindsight; the question is not whether counsel's investigation was perfect or could be done better today but rather, whether it was adequate based on what was known or should have been known at the time of trial. SeeCommonwealth v. Drumgold, 423 Mass. 230, 262 (1996); Commonwealth v.Doucette, 391 Mass. 443, 458 (1984).
There are some factors bearing on a defendant's state of mind which are so well established in the criminal law that when they appear in a defendant's background, an ordinary, fallible attorney would be expected to focus on them as grounds for a criminal responsibility defense; for example, intoxication or battered woman's syndrome. However, a lack of sleep for several days preceding the crime is not of such obvious value to the defense as an independent factor that one would expect competent counsel, solely on the basis of experience as a criminal defense lawyer, to recognize its potential significance and retain a sleep deprivation expert. See Commonwealth v. Alvarez, 433 Mass. at 101. Moreover, this Court cannot deem counsel ineffective for failing to recognize the defendant's lack of sleep as a critical issue when the defense expert, psychiatrist Marc Whaley, did not do so. Attorney FitzGerald's reliance on the medical experts retained by him to identify those factors bearing on the defendant's criminal responsibility defense and to identify any issues (such as psychological testing) which might require more specialized expert analysis was reasonable and did not fall measurably below that conduct which might be expected from an ordinary fallible lawyer. Compare Commonwealth v. Hardy, 426 Mass. 725, 731-732 (1998) (concluding that it was not ineffective assistance of counsel to fail to pursue an insanity defense in reliance on expert opinions, where the Commonwealth's experts concluded that the defendant did not suffer from any mental impairment, and the defense's own expert could not reach a definitive conclusion because of the strong possibility that the defendant was malingering); Commonwealth v. Schulze, 14 Mass. App. Ct.343, 349-350 (1982), rev'd on other grounds, 389 Mass. 735 (1983) (concluding that counsel's failure to pursue an alternative theory of insanity was not ineffective assistance of counsel where the defense psychiatric expert noted the possibility of such a theory but did not focus on it). See also State v. Moore, 678 N.E.2d 1258, 1265 (Ind. 1997), cert. den., 523 U.S. 1079 (1998) (finding no ineffective assistance of counsel based on trial counsel's failure to procure a neuropsychologist who would testify that an organic brain disorder caused the defendant to be unable to conform his conduct to the requirements of the law, where trial counsel hired a psychologist, psychiatrist and neurologist to evaluate the defendant for an insanity defense, all three concluded that the defendant was sane, and none of the experts suggested that the defendant be further evaluated by a neuropsychologist).
Although expert testimony is almost always presented in connection with a defense based on intoxication, a decision not to call an expert is not per se ineffective assistance of counsel. Commonwealth v. Frank, 433 Mass. 185, 192 (2001).
See G.L.c. 233, § 23F (1996) (authorizing the use of expert testimony concerning the pattern of abusive relationships in cases where a defendant claims self-defense). See also Commonwealth v. Conaghan, 433 Mass. 105, 110-111 (2000) (remanding a case for further proceedings to determine whether the defendant's guilty plea was involuntary because of battered woman syndrome).
The defendant argues that Attorney FitzGerald was ineffective in failing to ensure that Dr. Lesniak was aware of the defendant's reported sleeplessness because if he had been aware of it, Dr. Lesniak would have suggested that counsel consult a sleep expert. This contention must be rejected for two reasons. First, although Dr. Lesniak states in his affidavit that he was not aware of the defendant's reported sleep deprivation at the time of his evaluation, he acknowledges that he reviewed numerous documents provided by FitzGerald. Dr. Lesniak's written report states that he reviewed "Twenty-Seven Indexed Documents from the Bristol County CPAC Unit to Bureau of Investigative Services-East, July 22, 1996." Document 25 in this packet is the Interview of Raymond Frias, July 18, 1996, by Fairhaven Police Detective Shepard. This interview report states that Frias told police that according to Yvonne Gaboriault, the defendant had "got crazy" in the five days before the killings and was not sleeping or eating. Thus, although Attorney FitzGerald may not have directly alerted Dr. Lesniak to the defendant's sleeplessness, he provided Dr. Lesniak with background information which included the defendant's reported lack of sleep. Compare Commonwealth v.Alvarez, 433 Mass. at 101 (finding ineffective assistance of counsel where the attorney failed to review or provide to the defense expert important medical records). As stated above, it was reasonable for FitzGerald to rely on Dr. Whaley and Dr. Lesniak to identify factors such as sleep deprivation which might bear on the defendant's mental state and require further investigation. That Dr. Lesniak, for whatever reason, apparently did not note the report of the defendant's lack of sleep contained in the records provided to him does not constitute ineffective assistance of counsel on the part of Attorney FitzGerald, absent some evidence, of which there is none in the present case, that Dr. Lesniak was not a competent expert on whom counsel could reasonably rely.
Frias is a neighbor and friend of Yvonne Gaboriault.
Second, Dr. Lesniak was retained upon Dr. Whaley's recommendation and for a limited purpose: to conduct neuropsychological testing to enable Dr. Whaley to testify concerning the extent to which the defendant was criminally responsible. Attorney FitzGerald appropriately looked to Dr. Whaley for that opinion and for guidance and direction as to the relevant issues.
Thus, this Court concludes that trial counsel's failure to investigate the effect of sleep deprivation on the defendant's mental state and procure a sleep deprivation expert such as Dr. Gillin did not constitute ineffective assistance of counsel, given that counsel recognized the propriety of a lack of criminal responsibility defense and hired appropriate experts, a psychiatrist and a neuropsychologist, to assist him, and those experts did not identify sleep deprivation as a factor requiring further evaluation. Only in hindsight can it be said that an expert such as Dr. Gillin should have been consulted, and what is clear in hindsight is not necessarily so clear in foresight; the test is what an ordinary, fallible lawyer would do. Commonwealth v. Carlos, 38 Mass. App. Ct. 929, 931 (1995). Neither the United States Constitution nor the Declaration of Rights guarantees a perfect defense.Commonwealth v. Scheffer, 43 Mass. App. Ct. 398, 400 (1997).
In light of this conclusion, this Court need not concern itself with whether Dr. Gillin's conclusions with respect to criminal responsibility would be admissible under the standard set forth inCanavan's Case, 432 Mass. 304 (2000), and Commonwealth v. Lanigan, 419 Mass. 15 (1994), or whether his expert testimony would or would not have accomplished something material for the defense.
The defendant further contends that trial counsel was ineffective in failing to elicit from Dr. Lesniak the opinion that Gaboriault was not criminally responsible for his actions on July 8, 1996. Attorney FitzGerald, Dr. Whaley, and Dr. Lesniak all agree that Dr. Lesniak's role in this case was a limited one: to conduct a battery of neuropsychological tests on the defendant and report the results, which would then be used by Dr. Whaley as a tool to assist him in his criminal responsibility evaluation. It never occurred to Dr. Whaley to ask Dr. Lesniak if he had an opinion as to the defendant's criminal responsibility, and it would not be common practice to do so. Dr. Whaley briefly discussed his opinion regarding criminal responsibility with Dr. Lesniak and Dr. Lesniak never indicated that he disagreed or offered his own opinion on the issue. Under these circumstances, Attorney FitzGerald cannot be faulted for failing to ask Dr. Lesniak for his opinion of the defendant's criminal responsibility and his failure to do so did not fall measurably below the performance which might be expected from an ordinary fallible lawyer.
In light of this conclusion, this Court need not address whether Dr. Lesniak was qualified to render such an opinion in light of the undisputed fact that he did not examine Gaboriault to determine his criminal responsibility and indeed, has never conducted a criminal responsibility examination on any defendant.
The defendant next argues that counsel was ineffective in withdrawing the issue of lack of criminal responsibility from the jury. Specifically, the defendant contends that counsel abandoned the defense of insanity when he noted during his closing statement Dr. Whaley's opinion that the defendant was not completely lacking in criminal responsibility but did have a diminished capacity. Closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial, and a summation which leaves a client "denuded of a defense" constitutes ineffective assistance of counsel. Commonwealth v. Triplett, 398 Mass. 561, 569 (1986); Commonwealth v. Street, 388 Mass. 281, 287 (1983). See, e.g., Commonwealth v. Street, 388 Mass. at 287 (finding ineffective assistance of counsel where after expert testimony that the defendant lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law, defense counsel argued for a verdict of second degree murder, stating, "The judge will tell you to determine either he is guilty of first-degree murder, second-degree murder, or not guilty by reason of insanity. I have taken by reason of insanity away. I have told you there is not enough here."); Commonwealth v. Westmoreland, 388 Mass. 269, 273 (1983) (finding ineffective assistance of counsel where after expert testimony that the defendant lacked substantial capacity to conform his conduct to the law, and expert testimony that the defendant lacked the ability to premeditate, defense counsel argued in his closing statement, "Temporary insanity? That's for you. Maybe not. Probably not. I don't think you're going to buy that," and then failed to mention diminished capacity, arguing instead for manslaughter although there was no evidence of provocation).
Attorney FitzGerald's summation cannot be deemed to have withdrawn the insanity defense from the jury; rather, it merely shifted the emphasis away from that defense, which was supported only by lay testimony, to the more promising one of inability to premeditate or act with extreme atrocity and cruelty, which was supported by both expert and lay testimony. Indeed, defense counsel's frank acknowledgment that there was no expert testimony to support lack of criminal responsibility may well have made more effective the contentions as to diminished capacity. Compare Commonwealth v. Walker, 413 Mass. 552, 559 (1992) (finding no ineffective assistance of counsel where counsel did not argue alibi in his closing statement but left alibi as a live issue before the jury while downplaying the lack of corroborating evidence and preventing the prosecutor from commenting on the weakness of the claim). It should be noted that the jury in the present case was fully instructed on lack of criminal responsibility as a complete defense to the killings, and the verdict slip contained a possible verdict of not guilty by reason of lack of criminal responsibility. Defense counsel's closing statement did not constitute an abandonment of the insanity defense, did not leave the defendant denuded of a defense, and did not fall measurably below that conduct which might be expected from an ordinary fallible lawyer. SeeCommonwealth v. Plant, 417 Mass. 704, 715 (1994) (finding no ineffective assistance of counsel where counsel failed to argue criminal responsibility in closing statement but presented the issue of criminal responsibility to the jury, albeit without emphasis, and the jury was fully instructed on the issue).
The defendant also argues that trial counsel failed to present any defense to the charge of murder in the first degree by reason of extreme atrocity or cruelty. This assertion is without merit. Dr. Whaley testified that the defendant's ability to make a mental decision regarding the consequences of the number of blows of a knife or to appreciate the suffering of his victims was substantially impaired. On redirect examination, he opined that the defendant had a "significant impairment in his ability to appreciate the extreme cruelty and atrocity of his acts." Further, Attorney FitzGerald argued in his closing statement that Dr. Whaley's opinion was that the defendant "has a mental impairment which diminishes his capacity, his ability to fully premeditate those acts and which also carries over into, as his Honor will explain later on in the law what's called extreme atrocity and cruelty, the two mechanisms by which you as a jury could find him guilty of murder in the first degree." Finally, this Court instructed the jury that "you may consider the defendant's mental condition on the day in question, including any mental impairment, on all of the factors that are relevant in determining whether or not the Commonwealth has proven beyond a reasonable doubt that the defendant committed the crime with extreme atrocity or cruelty." Thus, defense counsel put forth a competent defense to the charges of first degree murder by reason of extreme atrocity or cruelty, and the defendant's claim of ineffective assistance in that regard lacks merit.
The defendant further contends that trial counsel was ineffective for failing to advise him of the right to appear before the jury in an unmedicated state and to ensure his trial in an unmedicated state. It is well established that the jury may consider the defendant's courtroom demeanor when the defendant's sanity is an issue at trial. Commonwealth v. Smiledge, 419 Mass. 156, 160 (1994); Commonwealth v. Louraine, 390 Mass. 28, 34 (1983). If the defendant appears calm and controlled at trial, the jury may well discount any testimony that the defendant lacked, at the time of the crime, substantial capacity either to appreciate the wrongfulness of his conduct or to conform the conduct to the requirements of the law. Commonwealth v. Louraine, 390 Mass. at 34-35. A defendant is entitled to place before the jury any evidence which is at all probative of his mental condition. Id. Thus, where a defendant argues that he lacked criminal intent due to a mental illness, the State and Federal Constitutions may require that the defendant be afforded an opportunity to have a jury observe him in an unmedicated state.Commonwealth v. Gurney, 413 Mass. 97, 101 (1992); Commonwealth v.Louraine, 390 Mass. at 35-36. See, e.g., Commonwealth v. Gurney, 413 Mass. at 103 (concluding that a defendant who claimed that his history of mental illness and uncontrolled alcoholism prevented him from forming the specific intent to rape the victim, and who testified in his own defense, was entitled to present expert testimony explaining that he was under the influence of several antipsychotic medications at the time of his trial); Commonwealth v. Louraine, 390 Mass. at 35-36 (concluding that it violated Article 12 to allow the Commonwealth to administer antipsychotic medication to a defendant who raised an insanity defense to murder, where the medication visibly affected the defendant's demeanor at trial).
Nonetheless, the right to appear in an unmedicated state before the jury is not unrestricted. Commonwealth v. Gurney, 413 Mass. 97, 103 (1992). Not every defendant who routinely is treated for mental illness is entitled to be observed by the jury in an unmedicated state. Id. In some cases, the defendant's demeanor in an unmedicated condition or evidence of a defendant's medicated condition at trial will not be relevant. Id.; Commonwealth v. Louraine, 390 Mass. at 38. Whether such evidence is admissible must be decided on a case-by-case basis.Commonwealth v. Gurney, 413 Mass. at 103; Commonwealth v. Louraine, 390 Mass. at 37.
In the present case, Gaboriault contends that trial counsel's failure to ensure that he appeared unmedicated at trial constituted serious incompetency, inefficiency, or inattention of counsel which deprived him of an otherwise available, substantial ground of defense. However, the evidence before this Court is that Gaboriault was treated for depression and anxiety with medications which, although having certain side effects, did not produce such a drastic effect on the defendant's demeanor so as to undermine the defense that he lacked, at the time of the crime, substantial capacity either to appreciate the wrongfulness of his conduct or to conform the conduct to the requirements of the law. Compare Commonwealth v. Gurney, 413 Mass. at 100-101 (in which the defendant had been diagnosed as suffering from chronic paranoid schizophrenia and alcoholism and regularly took three or four antipsychotic medications to control his mental illness); Commonwealth v. Louraine, 390 Mass. at 33 (in which the defendant suffered from chronic paranoid schizophrenia and was receiving heavy doses of antipsychotic medication to control psychotic episodes during which he experienced auditory and visual hallucinations and delusional and bizarre ideas). Not every defendant who is routinely treated for mental illness is entitled to be observed by the jury in an unmedicated state.Commonwealth v. Gurney, 413 Mass. at 103. In contrast to the defendants in Gurney and Louraine, Gaboriault did not have a significant history of mental illness requiring treatment, and exhibited no psychotic symptoms.
Moreover, although the jury undoubtedly noted Gaboriault's demeanor during trial, this is not a case where the lack of criminal responsibility defense depended on the defendant's own testimony and the defendant's controlled demeanor at trial impacted his credibility. Compare Commonwealth v. Gurney, 413 Mass. at 103-104. Nor is it a case where antipsychotic medication was administered to the defendant over his objection. See Commonwealth v. Louraine, 390 Mass. at 35-36. Rather, Gaboriault requested and voluntarily took his medications during trial because he wanted to sleep and wanted to feel better. Thus, under the circumstances of this case, the defendant's unmedicated demeanor was not of such relevance to his lack of criminal responsibility defense so as to give rise to a constitutional right to have the jury observe him in an unmedicated state. Accordingly, trial counsel's failure to ensure that Gaboriault appeared before the jury unmedicated was not conduct falling measurably below that which might be expected from an ordinary, fallible lawyer.
Further, even if counsel's conduct in this regard could be deemed to be incompetent, the defendant's failure to appear at trial unmedicated did not deprive him of an otherwise available, substantial ground of defense. See Commonwealth v. Whitman, 430 Mass. at 757; Commonwealth v.Street, 388 Mass. at 285. Foremost, there was a substantial amount of evidence at trial relating to Gaboriault's mental state at the time of the killings, including both lay and expert testimony. In addition, the jury did hear evidence, through the testimony of Dr. Lesniak, that Gaboriault was medicated while at Bridgewater State Hospital pending trial. Finally, the evidence simply does not establish that the defendant's demeanor at trial would have been significantly different had he ceased his medication regimen. At best, he might have been more agitated and shown more emotion, including tears, at certain times. This is not a case where psychiatric medication created a chemically produced courtroom demeanor which deprived the jury of the opportunity to observe firsthand disturbing psychotic symptoms reflecting the defendant's mental illness at time of the crime. Thus, presenting Gaboriault to the jury in an unmedicated state would not likely have accomplished something material for the defense, and Attorney FitzGerald's failure to do so did not constitute ineffective assistance of counsel.
Attorney FitzGerald chose not to directly inform the jury that Gaboriault was medicated at trial because he wanted to portray the defendant as a decent person who lost his bearings, and not as a "wild beast" who required sedation.
Finally, Gaboriault contends that trial counsel was ineffective in failing to impeach prosecution witness Shawn Moniz with evidence that he was Jennifer Pike's cousin and that he had had a sexual relationship with her in the past. The defendant contends that this information would have shown that Moniz was not an impartial witness and given the jury reason to discredit Moniz's testimony that Gaboriault acted normally on the afternoon of the killings. A defendant's right to confront witnesses under the Sixth Amendment and Article 12 of the Declaration of Rights includes the right to show bias, which is never collateral, and when a possibility of bias exists, even if remote, the evidence is for the jury to hear and evaluate. Commonwealth v. Henson, 394 Mass. 584, 587 (1985);Commonwealth v. Hicks, 377 Mass. 1, 8 (1979); Commonwealth v. Gonzalez, 23 Mass. App. Ct. 913, 913 (1986). However, in general, failure to impeach a witness does not prejudice a defendant or constitute ineffective assistance of counsel. Commonwealth v. Bart B., 424 Mass. 911, 916 (1997); Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 941, rev. den., 428 Mass. 1106 (1998).
During the hearing on the motion for a new trial, Attorney FitzGerald testified that he discussed with the defendant the issue of cross-examining Moniz on his relationship with Jennifer Pike but determined, as a matter of strategy, that it would be best not to muddy the reputation of the victim with evidence that she had engaged in sexual relations with her own cousin. Trial tactics which from the vantage point of hindsight are alleged to have failed do not constitute ineffective assistance of counsel unless manifestly unreasonable when undertaken.Commonwealth v. Smith, 427 Mass. 245, 258 (1998); Commonwealth v.Finstein, 426 Mass. 200, 203 (1997). This Court cannot deem manifestly unreasonable Attorney FitzGerald's fear that exposing Moniz's prior sexual relationship with Jennifer Pike would do more harm than good by appearing to the jury to be maligning a young victim who was brutally murdered.
Moreover, impeaching Moniz in the manner now suggested by the defendant would not have accomplished something material for the defense. SeeCommonwealth v. Martinez, 431 Mass. 168, 185 (2000); Commonwealth v.Mitchell, 428 Mass. 852, 854-855 (1999). First, the jury did hear evidence suggesting bias on Moniz's part in that he testified on direct examination that he had dated the victim. See Commonwealth v. Gregory, 401 Mass. 437, 445 (1988); Commonwealth v. Rathburn, 26 Mass. App. Ct. 699, 712 (1988), rev. den., 404 Mass. 1104 (1989) (concluding that failure to impeach a witness was not ineffective assistance of counsel where the evidence of bias was cumulative). Further, Moniz's testimony concerning Gaboriault's demeanor on July 8 was not critical to the government's case but rather, was cumulative of testimony by Albert Pike, Joseph Baron, and Paul Solomon that the defendant appeared and acted normally in the hours preceding and following the killings. Thus, the failure to impeach Moniz with evidence that he was Jennifer Pike's cousin and had a sexual relationship with her did not constitute ineffective assistance of counsel warranting a new trial.
Upon careful consideration of all of the defendant's claims, "[i]t cannot be said the defendant was afforded representation so lacking in skill and planning that it would be repugnant to constitutional values to allow his murder conviction to stand." Commonwealth v. Frank, 433 Mass. 185, 192 (2001).
Although not raised as an independent ground for a new trial, the defendant's brief makes much of the fact that trial counsel did not obtain and review all of his Bridgewater State Hospital records. Assuming this to be so, the failure to review those records is not of critical importance in this case, given that the records were never directly in issue, and the later records would not necessarily be relevant to the defendant's mental state at the time of the killings. The defendant has not pointed to anything in the records which would have made a material difference in the defense. Compare Commonwealth v. Alvarez, 433 Mass. 93, 104 (2000) (finding ineffective assistance of counsel where the attorney failed to review critical medical records which were the lynchpin of the prosecutor's closing argument).
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant's motion for a new trial be DENIED .
_____________________________ Raymond J. Brassard Justice of the Superior Court
DATED: April 4, 2001