Opinion
No. 1994-00123-1
June, 1998
FINDINGS OF FACT, RULINGS OF LAW, AND MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL
This case arrives before the court on Defendant, Thomas N. LaCava's (LaCava) Motion for a New Trial. In 1994, LaCava was convicted of murder in the first degree after a jury found that he shot and killed his wife with deliberately premeditated malice aforethought. On the advice of counsel, LaCava had elected not to pursue an insanity defense at trial. LaCava now argues that his counsel erroneously advised him to forgo an insanity defense and that his representation was, therefore, ineffective. Additionally, LaCava claims that his counsel was ineffective in failing to challenge the voluntariness of certain inculpatory statements that LaCava uttered to various individuals, including the Connecticut State Police, and in allowing LaCava to plead guilty to an indictment accusing him of a violation of a restraining order. For the reasons that follow, the court rejects LaCava's contentions and, accordingly, his Motion for a New Trial will be DENIED.
BACKGROUND
On February 16, 1994, a Worcester County Grand Jury returned a two count indictment accusing LaCava of offenses arising out of the shooting death of his wife, Janice LaCava. The first count of the indictment charged LaCava with first degree murder and the second count charged him with violation of a restraining order. On December 5, 1994, a jury trial commenced in Worcester Superior Court before Justice Peter Lauriat. During the course of the trial, LaCava pled guilty to the restraining order violation, leaving only the first degree murder indictment before the jury. On December 9, 1994, the jury returned a guilty verdict on the first degree murder charge and Judge Lauriat sentenced LaCava to the statutorily mandated life imprisonment without possibility of parole. Judge Lauriat, then, at the Commonwealth's request and with defendant's assent, placed the restraining order charge on file.
It is undisputed that LaCava shot and killed his wife. The principal factual issue at trial centered on LaCava's mental state at the time of the shooting. LaCava's actions occurred following the deterioration of his marriage and after he lost the job he had held at Heald Machinery for thirty years. The facts also revealed that LaCava's daughter, Christine, played a role in encouraging Janice LaCava to end her marriage to the defendant.
Prior to the shooting, LaCava had become depressed. He frequently discussed killing himself with friends, neighbors, and anyone else who would listen to him. After a number of failed attempts at reconciliation with Janice, LaCava purchased the gun that he would later use to kill his wife. LaCava testified that on the day of the shooting, he approached his wife hoping to save the house that the two had built on a lake. He testified that all his dreams of marrying Janice and owning a house on a lake were being stripped from him and that he felt that he could not control the various aspects of his life.
Following the shooting, LaCava engaged in what he suggests was a suicidal pattern of behavior. He testified that after he shot his wife, he placed the gun in his mouth and pulled the trigger. The gun, however, was out of ammunition. LaCava then sped away from the scene. He stabbed himself a number of times and self-inflicted a significant laceration across his neck. LaCava testified that he wanted to kill himself, but could not succeed. Following his self-wounding, LaCava surrendered to Connecticut State Police Troopers who took LaCava to a hospital where he made a number of statements implicating himself in the homicide.
In preparing LaCava's defense, counsel consulted forensic psychologist Dr. Frederic Krell. Dr. Krell interviewed LaCava on four occasions at Bridgewater State Hospital for a total of seven hours. Additionally, Dr. Krell interviewed a number of people who knew LaCava including:
1. Timothy Hodgens, Ph.D., a psychologist from Westborough, Massachusetts, who met with Mr. and Mrs. LaCava between January and the end of April, 1993,
2. Brian Iandoli, Psy.D., a psychologist who saw Mr. LaCava on four occasions between October 8 and November 1, 1993 at North Central Human Services in Gardner, Massachusetts,
3. Donald and Lucille Croteau, a couple from Westminster, Massachusetts, who had been friends of Mr. LaCava for a considerable period of time prior to the murder,
4. Joanne and Thomas Nutting, a couple from Westminster, Massachusetts, with whom Mr. LaCava had been friendly for some years prior to the murder,
5. Robert LaCava, a nephew with whom Thomas LaCava was visiting in North Carolina for approximately one week prior to the murder, and
6. Angeline LaCava, sister-in-law of Thomas LaCava with whom he spent a week in Florida and North Carolina just prior to the murder.
Dr. Krell also reviewed a number of documents and statements collected from various sources. The end product of Dr. Krell's investigation was his conclusion that LaCava became depressed by reason of his failure to regain control of his life.
At the evidentiary hearing upon the motion for new trial, Dr. Krell testified that LaCava was, at the time of the shooting, clinically depressed and had an unspecified personality disorder. As a result of those impairments, Dr. Krell had concluded that LaCava "was not able accurately to assess the information coming in to him from his environment and was unable to modify his behavior sufficiently to avoid a tragic outcome." Dr. Krell had expressly found, however, that LaCava was not mentally ill as defined by the regulations promulgated by the Massachusetts Department of Health. When asked by trial defense counsel prior to trial about a possible insanity defense, Dr. Krell had replied that LaCava did not satisfy all the elements of McHoul and that he could not testify that LaCava lacked criminal responsibility.
104 CMR 3.01 defines a mental illness as "a substantial disorder of thought, mood, perception, orientation or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but shall not include alcoholism."
Commonwealth v. McHoul, 352 Mass. 544 (1967) articulated the operative definition of legal insanity in Massachusetts. In that case, the Supreme Judicial Court adopted the Model Penal Code definition of insanity which provides that a person is not responsible for criminal conduct if, at the time of such conduct, as a result of a mental disease or defect he lacks the substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. See id. at 546-547.
In reliance upon Dr. Krell's inability to opine that LaCava suffered from a mental disease or defect, defense counsel eschewed a defense based on lack of criminal responsibility. Believing that the facts would better support a defense effort to portray the killing as a homicide other than first degree murder, trial defense counsel argued that LaCava's mental condition precluded LaCava from premeditating within the meaning of first degree murder and that, if malice was found by the jury, the murder was only second degree. See Commonwealth v. Gould, 380 Mass. 672, 683 (1980) (allowing jury to consider mental impairment's impact on defendant's ability to deliberately premeditate). Defense counsel also argued for a voluntary manslaughter verdict, contending that Janice LaCava shot the defendant a look of disdain prior to the shooting and that she motioned as if to attempt to hit LaCava with her car. The manslaughter thrust was based upon the "heat of passion upon adequate provocation" and "excessive use of force in self defense" rationales. The jury rejected all defense theories and returned a guilty verdict on the first degree murder indictment.
The motion at bar presents a number of issues bearing on the question of whether LaCava received the effective assistance of counsel at his trial. LaCava points to three of defense counsel's decisions and identifies an instance of judicial error as entitling him to a new trial. His concerns center on (1) defense counsel's decision to eschew an insanity defense in favor of a degree-reduction effort, (2) defense counsel's decision not to challenge the voluntariness of inculpatory statements LaCava made concerning his desire to kill his wife and other statements made to the Connecticut State Police following the killing, (3) the trial judge's omission sua sponte to trigger a voluntariness inquiry, and (4) defense counsel's decision to allow LaCava to plead guilty to the restraining order violation.
DISCUSSION
LaCava argues that defense counsel failed to provide him with the effective assistance of counsel, and, therefore, he is entitled to a new trial. A court scrutinizing such a claim must examine "whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (citations omitted). The court should not reverse a conviction absent a persuasive showing that "better work might have accomplished something material for the defense." Commonwealth v. Adams, 374 Mass. 722, 727 (1978) (quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977)). The controlling standard of review requires that counsel's judgments be manifestly unreasonable, typically meaning the loss of an otherwise available, substantial ground of defense, before those judgments may be said to have been ineffective. See Commonwealth v. Street, 388 Mass. 281, 285 (1983) (citations omitted). "When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not second guess competent lawyers working hard for defendants who turn on them when the jury happens to find their clients guilty." Id. (citations omitted). The court will assay each of defendant's post-conviction claims in turn, employing the analytical framework suggested by the decisions cited supra.
I. Failure to Pursue An Insanity Defense
The major thrust of LaCava's argument for a new trial centers on defense counsel's omission to pursue the complete defense of insanity. Defense counsel elected not to advance an insanity defense after Dr. Krell informed him that LaCava was not afflicted with a "mental disease or defect" within the meaning of McHoul. See fn. 2, supra. The McHoul rule makes clear that, in order to constitute a defense, the defendant's then existing mental condition must, at a minimum, have been comprised of a mental defect or disease which deprived the defendant of the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law. See id. at 546-547 (quoting American Law Institute's Model Penal Code, Proposed Official Draft, § 4.01 (1962)). The irreducible minimum, then, for a McHoul defense is the presence of a mental disease or defect. But, trial defense counsel had no evidence of that foundation element.
The trial record reveals that Dr. Krell undertook a comprehensive investigation into LaCava's state of mind. He met with LaCava for about seven hours and interviewed a number of persons who knew LaCava. That investigation caused Dr. Krell to conclude that, although LaCava could not conform his actions to avoid the tragic killing, he did not suffer from a mental disease or defect. Dr. Krell was sensitive to the standard enunciated in McHoul and determined that LaCava did not meet that standard. In reliance on his expert's opinion, trial defense counsel opted not to present an insanity defense, but rather to argue that LaCava suffered from a mental state that precluded his ability to premeditate. Of course, counsel is not merely to rubber stamp the expert's conclusion, but a reasonable acceptance thereof is not ineffective lawyering. Ultimately, the determination of whether an ordinary fallible lawyer might have relied on Dr. Krell's opinion that LaCava did not suffer from a mental disease or defect and would reasonably have chosen not to pursue an insanity defense will control the present motion.
The Supreme Judicial Court has frequently confronted new trial motions based on ineffective assistance of counsel and, where trial counsel failed to raise an insanity defense despite the existence, on the trial record, of evidence to support such a defense, the Court ordered a new trial. See Street, 388 Mass. at 287-288 (ordering new trial where defense counsel abandoned insanity defense in closing argument despite evidence supporting the defense on the trial record). Similarly, in Commonwealth v. Westmoreland, 388 Mass. 269, 274 (1983), the Court ordered a new trial where defense counsel essentially removed the question of insanity from the jury despite sufficient facts on the record to support an insanity finding. On the other hand, the Court has made clear that defense counsel has neither an obligation nor a right to present an insanity defense unsupported by the evidence. See Commonwealth v. Stevens, 379 Mass. 772, 774 (1980).
The first question this court must decide, therefore, is whether an insanity defense would have been supported by the evidence at bar. Analysis of the question proceeds from the reality that Dr. Krell did conclude that LaCava could not conform his actions to avoid the killing. Accordingly, this court acknowledges that expert testimony in support of the second half of the McHoul standard appears on the record. It is, however, the absence of evidence suggestive of the first half — mental disease or defect — that causes the defendant's present motion to founder.
The Supreme Judicial Court instructs that "[a]n insanity defense may be raised properly by the admission of any evidence which, if believed, might create a reasonable doubt concerning the defendant's criminal responsibility at the time of the [crime]". Commonwealth v. Mills, 400 Mass. 626, 627 (1987) (quoting Commonwealth v. Laliberty, 373 Mass. 238, 246-247 (1977)). The facts of a case, including lay testimony, can support a finding of insanity even in the absence of expert analysis. See id. at 628 (citations omitted). A defendant's pre- and post-incident conduct may contribute to the creation of a reasonable doubt that the defendant was criminally responsible. See id. at 631 (defendant's pre-assault conduct, asserted state of mind, physical condition, and suicidal attitude following incident created jury question of his sanity). LaCava urges that evidence of his conduct, both before and after the killing, sufficiently raised the question of his sanity to require, in the constitutional sense, his defense counsel to pursue an insanity defense.
In support of that contention, LaCava points to Dr. Krell's diagnosis describing defendant as depressed and having a personality disorder. Also well documented in the record is that LaCava constantly rambled, to whomever would listen, that he intended to kill himself and/or his wife. Finally, LaCava suggests that his insanity claim is buoyed by evidence that he covertly waited in a rental car for his wife to return to her apartment, approached her in knowing violation of a restraining order, and attempted suicide a number of times following the shooting. The totality of those facts, LaCava asserts, depicted insanity as a viable defense, one which ought to have been presented on his behalf.
The trouble with defendant's present position is that the evidence available to trial defense counsel in fact painted a quite different picture. Dr. Krell's testimony at the motion hearing recounted his discussions with trial defense counsel on the question of LaCava's criminal responsibility. Dr. Krell testified that LaCava, in attempting to regain control of his marriage, had begun to experience homicidal and suicidal fantasies. Both of LaCava's prior therapists informed Dr. Krell that they had found LaCava depressed and talking suicidally, though to a lesser degree at the end of therapy. Dr. Krell conceded that LaCava could not process information in a way that a normal rational person of his age group could, but that concession did not cause him to favor an insanity defense because Dr. Krell concluded that, although, at the time of the incident, LaCava could not conform his actions to the norm, that inability was not occasioned by the sort of mental incapacity contemplated by the McHoul standard, viz, a "mental disease or defect."
Dr. Krell diagnosed LaCava as suffering from a personality disorder combined with depression. That diagnosis, Dr. Krell opined, did not satisfy the definition of a mental disease or defect established by the DMH Regulations. Accordingly, he concluded, and so informed trial defense counsel, that LaCava had not a viable insanity defense. That conclusion, and defense counsel's reliance thereon, is well supported in the record.
The trial record discloses a number of facts that support the conclusion that trial defense counsel had not the ammunition to present a viable insanity defense. LaCava had no history of mental illness and had enjoyed both a longterm marriage and a longterm employment. LaCava purchased the gun with which he shot the victim well before the date of the incident. Moreover, LaCava had a motive to kill the victim and had disclosed to a number of people his intent to kill either his wife or himself. The combination of those negative factors and Dr. Krell's unhelpful diagnosis is persuasive that defense counsel's recommendation to LaCava that he forgo an insanity defense was not constitutionally deficient.
LaCava makes much of the fact that Dr. Krell relied on the DMH regulations defining "mental illness" in determining whether LaCava's mental condition met the foundation element ("mental disease or defect") of McHoul. However, even assuming, arguendo, that Dr. Krell's reliance upon the regulatory definition was erroneous, trial defense counsel was unaware of Dr. Krell's "error" and trial defense counsel's abandonment of an insanity defense cannot, accordingly, be deemed manifestly unreasonable lawyering. Furthermore, Dr. Krell's report contained, on its first page, a verbatim copy of the McHoul standard. Therefore, defense counsel could reasonably have inferred that Dr. Krell properly understood the McHoul standard and evaluated LaCava in conformity with that standard. Finally, because LaCava had no documented history of mental disability, defense counsel would have had no reason to question Dr. Krell's findings or seek an additional psychiatric examination. See, in contrast, Genius v. Pepe, 50 F.3d 60, 61 (1st Cir. 1995) (where defendant was deemed incompetent to stand trial, defense counsel should have been alerted to viability of insanity defense). Because LaCava did not have a history of mental illness, because LaCava had not been deemed incompetent to be tried, and because Dr. Krell could not testify to a sine qua non of the McHoul litmus, the court is persuaded that trial defense counsel made a reasonable decision to recommend that LaCava not present an insanity defense.
The court sees no impropriety in Dr. Krell's referring to the DMH Regulation to supplement his training and experience in diagnosis. It is also worthy of note that Dr. Krell did not employ the Regulations, in lieu of McHoul, for a definition of insanity, but rather tapped the Regulations for aid in defining an aspect — "mental disease or defect" — of McHoul. See also, Commonwealth v. Fuller, 421 Mass. 400, (1995) (trial judge not required to define mental disease and defect because its meaning is clear).
The Supreme Judicial Court's recent decision in Commonwealth v. Hardy, 426 Mass. 725 (1998) further supports the court's view that trial defense counsel's failure to challenge a defendant's criminal responsibility, despite some evidence of mental impairment, does not necessarily rise to the level of ineffective assistance of counsel. In Hardy, the Commonwealth's expert initially deemed the defendant incompetent to stand trial. See id. at 727. That expert later changed his opinion despite findings from a second doctor that the defendant was severely mentally impaired. See id. at 728. The defendant's expert testified at the competency hearing that the defendant was unable to stand trial. See id. Notwithstanding these indicia of the defendant's mental impairment, defense counsel elected not to pursue even a Gould theory. See id. at 729. The Supreme Judicial Court found that defense counsel's decision not to advance a Gould contention was not manifestly unreasonable because the facts overwhelmingly pointed to the defendant's guilt and because defense counsel could not adequately support a Gould claim. See id. at 730-731. That result should likewise obtain in the case at bar.
Having opted to proceed in accordance with a Gould rather than a McHoul strategy, the instant trial defense counsel discussed the strategy extensively with LaCava and LaCava agreed with the Gould thrust of the defense. LaCava's informed and voluntary agreement to proceed in accordance with defense counsel's suggestion severely undermines his ability now to claim ineffective assistance of trial defense counsel. See Commonwealth v. Finstein, 426 Mass. 200, 204 (1997) (strategic choices reasonably made by counsel with a defendant's concurrence may not be challenged successfully on appeal on the ground that counsel was ineffective in the constitutional sense). Moreover, there is no evidence to suggest that LaCava lacked the mental competence to stand trial and, therefore, it cannot be said that his ability to agree with defense counsel's proposed strategy was compromised by his mental condition. In sum, Dr. Krell's diagnosis, LaCava's lack of a history of mental illness, the absence of evidence of conduct evocative of insanity and LaCava's voluntary agreement that trial defense counsel not pursue an insanity defense together convince this court that defense counsel's decision not to present an insanity defense was not manifestly unreasonable and that LaCava's acquiescence in his counsel's decision is fatal to his ineffectiveness contention. Cf. Commonwealth v. Robbins, 422 Mass. 305, 307-309 (1996) (counsel not ineffective for failing to present insanity defense for client who suffered from delirium tremens, blackouts and hallucinations because of heavy drinking).
LaCava's counsel was presented with significant evidence of LaCava's guilt. At best, the evidence suggesting a meritorious McHoul defense was doubtful, while the evidence supporting a Gould result was significantly more substantial. Defense counsel made a reasoned, informed decision based on the information provided him. At bottom, "the basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel." Id. at 733 (quoting Satterfield, 373 Mass. at 111).
II. Presentation of the Gould Defense
The Supreme Judicial Court has endorsed the proposition that a jury may consider a criminal defendant's mental condition in its decision upon the issue of deliberate premeditation. See Gould, 380 Mass. at 680-682. Accordingly, trial defense counsel, because his evidence was insufficient to support a McHoul complete defense, portrayed LaCava's mental impairment as precluding his ability to deliberately premeditate. LaCava now argues that defense counsel misapprehended the Gould principal and, at bottom, provided him no defense at all. The argument is unavailing.
Having decided not to present an insanity defense, and relying on the advice of his expert, defense counsel pursued a Gould theory of diminished capacity. The trial record reflects that, in his summation, defense counsel presented a picture of LaCava as a man whose world was collapsing around him. On numerous occasions, trial defense counsel conveyed to the jury that LaCava did not know or understand what he intended to do upon confronting his wife. Defense counsel emphasized the pressures burdening LaCava and their disabling him from acting rationally. Having elicited Dr. Krell's testimony that LaCava had a personality disorder and suffered from depression, defense counsel possessed a proper evidentiary foundation for arguing that LaCava's mental impairment precluded his deliberate premeditation.
The primary contention that LaCava raises in attacking defense counsel's treatment of the Gould issue is that both Judge Lauriat and defense counsel repeatedly referred to the approach as the "defense" of diminished capacity. Correctly noting that the Commonwealth does not recognize a "defense" of diminished capacity, LaCava argues that defense counsel did not, by reason of the mischaracterization, present a cognizable defense on his behalf. That argument elevates form over substance.
Review of the trial proceedings, particularly Dr. Krell's testimony and defense counsel's summation, reveals that defense counsel presented a proper Gould contention. Underlying defense counsel's questions to Dr. Krell and his summation was the not unreasonable assertion that LaCava's mental impairment, though not qualifying under McHoul as a mental defect or disease, prevented LaCava from knowing what he was doing at the time of the shooting. Moreover, Judge Lauriat expressly instructed the jury that it "may consider the defendant's mental condition on the day in question, including any mental impairment or voluntary consumption of alcohol in determining whether the Commonwealth has proved beyond a reasonable doubt that the defendant acted with deliberate premeditation, that is, relative to the third element of the offense of first-degree murder." That jury instruction captured both the substance and spirit of the Gould theory and was congruent with defense counsel's trial strategy. Given that defense counsel argued the Gould principle properly and that Judge Lauriat instructed the jury appropriately, any mischaracterization by defense counsel or judge as to a "defense" of diminished capacity was inconsequential. Accordingly, the court does not find that defense counsel failed to provide effective assistance of counsel by reason of his occasional misarticulation of the Gould approach as a "defense".
III. Humane Practice Rule
LaCava's third attack on the effectiveness of his trial counsel rests upon trial defense counsel's failure to invoke the "humane practice" rule and to attempt to bar admissibility of the statements LaCava made to various people about his wanting to kill his wife. The challenged statements included utterances made by LaCava prior to killing his wife and statements made to the Connecticut state police following the killing. LaCava also faults the trial judge for his not, sua sponte, triggering the humane practice procedure.
The humane practice rule requires that, when the government seeks to introduce an admission into evidence, the trial judge must initially determine whether the statement was voluntary. See Commonwealth v. Tavares, 385 Mass. 140, 149, cert. denied, 457 U.S. 1137 (1982). Once the judge determines that the statement was voluntary, the statement is admitted with the instruction that the jury ought not to consider the statement in deliberations if, based on the evidence, the jury is not satisfied that the statement was the voluntary act of the defendant. See id. at 150.
LaCava's defense counsel deliberately chose not to seek to exclude LaCava's statements because they supported the presentation of his Gould theory. Defense counsel testified at the hearing on the motion for new trial that the statements helped to convey to the jury LaCava's fragmented state of mind. The decision not to contest the statements' voluntariness derived from defense counsel's trial theme that, at the time of the murder, LaCava was acting with diminished capacity and could not deliberately premeditate the killing. That LaCava freely spoke to the police would, according to defense counsel, bolster that theory. Additionally, defense counsel sought to avoid diverting the jury from his more potent Gould argument — a diversion that might well have occurred had he subjected the jury to a humane practice exercise.
Defense counsel's decision not to invoke the humane practice rule was not manifestly unreasonable. Had he been successful in obtaining exclusion by the judge or jury, counsel's "victory" would have deprived LaCava of statements that advanced his Gould theory because the statements allowed defense counsel to portray LaCava as an individual battered by emotional issues and who was, accordingly, acting without deliberation or premeditation. Moreover, exclusion of the statements would not have advanced LaCava's cause because the statements only established that which LaCava admitted, to wit, that he killed his wife. Their inclusion did not prejudice the defense and their exclusion would have disadvantaged the defense. Thus, LaCava suffered no prejudice from defense counsel's purposeful omission to seek exclusion via the humane practice.
Similarly, Judge Lauriat's failure to raise the humane practice issue sua sponte would not support the granting of a new trial. If evidence of involuntariness arises, the trial judge must, on his own motion, conduct a voir dire on the issue of voluntariness. See Commonwealth v. Sheriff, 425 Mass. 186, 195 (1997); Commonwealth v. Brady, 380 Mass. 44, 49 (1980); Commonwealth v. Harris, 371 Mass. 462, 469-472 (1976). Where, however, such evidence is not apparent, the burden rests on defense counsel to request a voir dire. See Commonwealth v. Cartegena, 386 Mass. 285, 287 (1982).
The record reveals that Judge Lauriat asked defense counsel if he wished an instruction on the voluntariness of LaCava's statements. Defense counsel expressly refused. Therefore, any instruction by Judge Lauriat as to the humane practice rule would have directly contravened defense counsel's wishes and would have been contrary to defense counsel's purposeful trial strategy. Moreover, evidence of involuntariness at the time of the utterance was insufficient to impose an obligation on Judge Lauriat to raise the issue sua sponte. Thus, Judge Lauriat's failure to invoke the humane practice rule does not entitle LaCava to a new trial. See, in contrast, Sheriff, 425 Mass. at 194-195 (judge erred in not giving voluntariness instruction where substantial evidence of defendant's insanity existed at the time he made the statements).
IV. LaCava's Guilty Plea to the Restraining Order Violation
Finally, LaCava contends that defense counsel's decision to recommend that he plead guilty to the indictment accusing him of a violation of a restraining order was manifestly unreasonable. Correctly noting that a necessary element of a violation of restraining order accusation is that the suspect acted clearly and intelligently, Commonwealth v. Brogan, 415 Mass. 169, 171 (1993), LaCava argues that his pleading guilty to the violation allowed the jury to infer that he admitted acting with deliberation and premeditation when he committed the murder. He contends, therefore, that the guilty plea was incompatible with the Gould strategy. For that reason, LaCava now argues, his counsel's decision to suggest that he plead guilty was manifestly unreasonable. This court finds no merit in the argument.
At the evidentiary hearing, defense counsel recalled his reasons for recommending that LaCava plead guilty to the restraining order violation. He testified that he recommended the guilty plea in order to eliminate potential jury distraction from the main theme of his case. Defense counsel recognized that there was a separation between the time at which LaCava violated the restraining order and the time at which he killed his wife. He planned to emphasize that separation in his argument before the jury. By eliminating from jury consideration LaCava's relatively clear state of mind when he initially arrived at his wife's apartment, defense counsel sought to compel the jury to focus on LaCava's more turgid mental state at the only time relevant to the major indictment, the time of the killing. That division in focus was calculated by counsel to avoid a blending, in the jury's view, of the distinct states of mind, a mixture adverse to defendant's interest in a successful Gould reduction. Counsel's views of the constituent parts of the Commonwealth's case and the most effective means of responding thereto cannot be deemed manifestly unreasonable.
The verdict in this case turned on the jury's assessment of LaCava's mental state at the time of the killing. Consequently, the credibility of evidence suggesting lack of mental fault at the time of the killing was crucial. Instead of advancing the somewhat dubious proposition that LaCava did not knowingly violate the restraining order, and therefore damaging the credibility of evidence of lessened mental fault at the time of the killing, defense counsel conceded that LaCava intentionally drove to his wife's apartment complex to confront her. Defense counsel then argued, that, after seeing his wife and the disdain that she held for him, LaCava reflexively, and without deliberation and premeditation, shot her. Defense counsel explained to the jury that the depression that LaCava suffered and his personality disorder (an obsession with control) impacted upon him at the time his wife gave him the disdainful look. The essence of the defense position was that the combination of those forces, though not amounting to legal insanity, operated to preclude LaCava from forming, at the time of the shooting, the requisite mental state for a first degree murder conviction. By guiding the jury to an evaluation of LaCava's mental state only at the time of the killing, defense counsel was able to focus the jury's attention on defendant's mental state when it was most consistent with his Gould strategy. Accordingly, this court concludes that defense counsel's decision to eliminate from jury consideration, by plea of guilty to the relatively less significant indictment, evidence not in harmony with counsel's portrait of LaCava's mental state at the time of the killing was not manifestly unreasonable.
CONCLUSION
Because neither counsel's execution of the defense nor the trial judge's management of the trial deprived defendant of any of his rights, constitutional or otherwise, defendant is not entitled to a new trial.
ORDER
For the forgoing reasons, it is ORDERED that Defendant's Motion for a New Trial be DENIED.
________________________________ Daniel F. Toomey Justice of the Superior Court
Dated: June, 1998