Opinion
No. 92-0656
September 19, 2000
MEMORANDUM OF DECISION UPON DEFENDANT'S MOTION FOR A NEW TRIAL
This matter is before the court on the motion of defendant Henry Boateng ("Boateng") for a new trial. Boateng alleges ineffective assistance of trial counsel pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. The Commonwealth opposes the motion.
BACKGROUND
On December 9, 1992, defendant was indicted by a Worcester County Grand Jury for six offenses: first degree murder of Jameel Moore; armed assault with intent to murder Alecia Moore; two counts of assault and battery with a dangerous weapon (a stick and a knife) on Alecia Moore; assault and battery on Alecia Moore; and kidnapping Alecia Moore.
On April 15, 1993, in response to a Commonwealth motion, defendant disclosed that he intended to raise a defense of lack of criminal responsibility. Defendant requested and received funds for psychiatric and psychological experts on June 28, 1993; October 1, 1993; October 12, 1993; and February 25, 1994 (Hely, J.; Travers, J.). On July 30, 1993, this court (Donohue, J.) allowed the Commonwealth's motion that the defendant be ordered to submit to an independent psychiatric examination. On January 5, 1994, the court (Travers, J.) allowed defendant's motion for disclosure of the report of the independent psychiatric examination.
Having been convicted on March 18, 1994 of, inter alia, murder in the first degree and having lodged an appeal therefrom, defendant filed the instant motion for a new trial. The motion principally assails the effectiveness of counsel received by defendant at his trial. The court conducted evidentiary hearings ("hearings") on the motion on October 27 and 28, 1999; November 20, 1999; and December 3, 1999. At the hearings, motion counsel for defendant ("MCD") presented medical evidence from Dr. Paul A. Spiers, a licensed clinical psychologist; Dr. Ira Kramer, Connecticut Associate Medical Examiner; and Dr. Allen Brown, a clinical and forensic psychologist at the Massachusetts General Hospital and a clinical instructor in psychiatry at Harvard Medical School. MCD also offered the transcript of trial proceedings and defendant testified at the motion hearing. The Commonwealth presented testimony from TDC. In addition, the court questioned defendant on the record. After the hearings, the parties were granted an opportunity to present memoranda in the nature of closing arguments.
Defendant was also convicted upon indictments accusing him of assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon and assault and battery.
Proceedings on that appeal have been stayed pending disposition of the present motion.
The undersigned justice was assigned to determine the motion because the trial justice was retired.
Dr. Spiers was retained by trial counsel for defendant ("TDC") in November 1993 to provide an opinion concerning defendant's criminal responsibility on October 25, 1992. Spiers was not called to testify at trial. In early 1999, defendant's appellate counsel asked Dr. Spiers to investigate the defendant's ability, in 1992, to make a knowing and voluntary waiver of his Miranda rights and to determine the voluntariness of defendant's statements to police and others at that time.
Dr. Kramer was asked by appellate counsel to examine materials to determine the cause and timing of Jameel Moore's death.
Dr. Brown was contacted by appellate counsel in September 1999 to review materials related to the appeal in order to reach an opinion as to the defendant's mental status on October 25, 1992.
Upon consideration of all the submissions of counsel, both pre-and post-hearings, and all the evidence adduced at the hearing, the court will, for the reasons hereinafter stated, DENY the motion for new trial.
The Motion for New Trial
Defendant's Rule 30 motion raises a number of challenges to the viability of his conviction. He casts his claims in terms of the ineffectiveness of his trial defense counsel and suggests that his Federal and Massachusetts constitutional rights to counsel have thus been abridged. Defendant's several assertions are:
(1) TDC represented a prosecution witness, Dr. Stanton Kessler ("Kessler"), in past and pending civil matters and therefore labored under a disabling conflict of interest;
Dr. Kessler, the Commonwealth's Medical Examiner, testified at the trial.
(2) TDC failed to seek independent assessment of the medical examiner's conclusions;
(3) TDC presented only one defense witness upon the issue of defendant's criminal responsibility;
(4) TDC erred tactically in that:
(a) he abandoned the mental irresponsibility defense ("NGI") theory with respect to the lesser indictments in which Ms. Moore was alleged to be the victim;
(b) he failed to offer the defendant's mental health records into evidence;
(c) he failed to seek to exclude evidence of defendant's statements to the police; and
(d) he failed to seek to exclude evidence of defendant's statements to witnesses Moore and Hall;
(5) TDC failed to object to the prosecution's comments in closing argument;
(6) TDC failed to object to the trial judge's charge to the jury with respect to:
(a) third prong malice;
(b) the elements of extreme atrocity and cruelty;
(c) the elements of manslaughter;
(d) the elements of assault with intent to murder;
(e) the definition of lack of criminal responsibility;
(f) the standard for determining the voluntariness of defendant's statements to witnesses Moore and Hall;
(7) TDC failed to argue the insufficiency of the evidence to support defendant's convictions on the indictments for armed assault with intent to murder and assault and battery by means of a dangerous weapon;
(8) TDC failed to seek a determination of defendant's competence to stand trial; and
(9) TDC failed to insure that the defendant was presented to the jury in an unmedicated state.
FINDINGS OF FACT
Based upon the record and the credible evidence presented at the several hearings upon the motion, the court finds as follows:
1. The evidence adduced at the Rule 30 hearings was not persuasive that defendant was incompetent, by reason of his mental condition, voluntarily to utter statements and to waive his Miranda rights.
2. The statements defendant uttered, both with and without Miranda compliance, rationally tended to support his determination, at trial, to pursue the defense that he was not guilty by reason of insanity ("NGI").
3. TDC's election to present the NGI defense through expert witness Dr. Rosemarin, rather than Dr. Spiers, was grounded upon Dr. Rosemarin's more defense-supportive diagnoses, his abstention from reliance on the improbable evidence of hallucination, and his more extensive familiarity with defendant's mental circumstances. Additionally, Dr. Rosemarin had spent ten to twelve hours interviewing defendant on six to seven occasions while Dr. Spier's observation of defendant was limited to one to two hours on a single occasion. Dr. Spiers, who characterized defendant's mental condition as "possible" and "probable", did not conduct an in personam examination of defendant in connection with the question of the voluntariness of defendant's statements. Dr.Spiers' interview with defendant relative to the NGI defense was de minimis in duration, and he relied, in large measure, upon defendant's self reporting.
4. TDC believed that Dr. Spiers' testimony might contradict the opinions of Dr. Rosemarin, thus undermining the defense of NGI. TDC thus eschewed Dr. Spiers (and his psychological/neurological conclusions) as a trial witness and cast the defense's lot with Dr. Rosemarin and his psychiatric/behavioral diagnoses.
5. TDC was very experienced at criminal defense work and had handled approximately twenty murder cases. He was listed on the "murder-qualified" list of the Committee for Public Counsel Services. He was appointed to represent defendant after two prior counsel had been permitted to disappear. TDC met with defendant at the Worcester County House of Correction, spoke with defendant by telephone several times each week, accepted frequent collect calls from defendant, received discovery from predecessor counsel and the prosecutor, and delivered copies thereof to defendant. He spoke with defendant's predecessor counsel concerning defendant's desire for an NGI defense, obtained records pertinent to defendant's mental condition, spoke to medical professionals knowledgeable as to defendant's state of mind and learned that defendant did not contest the Commonwealth's version of the circumstances of the victim's death.
6. TDC determined that the evidence of defendant's admissions was not harmful to, and, indeed, supported the defense theory of NGI. Accordingly, he did not seek to suppress that evidence or otherwise exclude it from evidence. So too, his determination not to call upon medical professionals to challenge the voluntariness of defendant's admissions was founded upon his view that, were he to succeed in suppressing or diminishing the effect of the admissions, he would most probably accomplish only an erosion of his NGI defense. He wanted some of the statements, such as the threats against Alicia, to come into evidence to bolster the NGI defense; he did not want to reveal certain information about defendant's mental state in advance of trial; and, in any event, he believed that a challenge to voluntariness was, on the facts, unlikely to succeed. In sum, counsel resolved, as a tactical choice, to support the NGI theory with defendant's admissions and insanity-evocative conduct.
7. TDC discussed with defendant, in advance of trial, all the tactical options available in pursuit of the NGI strategy, and defendant assented to the approaches suggested by counsel. There is no evidence that defendant's acquiescence in these decisions was uninformed, involuntary or compelled by a disabling mental state.
8. TDC had two long conversations with defendant regarding the potential conflict raised by TDC's past and pending representation in civil matters of the Commonwealth's pathologist. Upon inquiry, the court determined that defendant understood that the dual representation might create a potential conflict of interest, to wit, that TDC might be required, by his duty to defendant, to take an uncomfortably forceful position with his outre client, Dr. Kessler; or that something could happen during Dr. Kessler's testimony to make Dr. Kessler's position "somewhat antagonistic" to defendant. Defendant was aware of such risks when he decided to have TDC continue to represent him despite the potential conflict of interest. Parenthetically, this court finds that the potentiality of conflict never did metamorphose, during trial, into an actual conflict.
9. TDC used the viciousness of defendant's attack on the baby as make-weight for his defense strategy of lack of criminal responsibility.
10. At defense counsel's request, the trial judge conducted an evidentiary hearing on defendant's competency to stand trial and his election to take medication during the trial. At the hearing, several mental health professionals who had treated and prescribed medications for the defendant over extended periods of time testified that defendant was capable of deciding whether to take medication during the trial. Upon inquiry, defendant expressed his intention to take his medication during the trial, suggesting that, otherwise, the trial would not go well. Defendant told the trial judge that "if I don't take my medication, there may not be a trial."
11. TDC made a strategic decision not to introduce the defendant's medical records at trial because most of the records were duplicative of testimony presented at trial by the expert witnesses and because TDC believed that portions of the records contained material that might have detracted from defendant's insanity claim.
DISCUSSION
At bar, defendant raises several claims of ineffective assistance of counsel. Ordinarily, errors which are not preserved at trial are considered waived. See Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). The Commonwealth argues, therefore, that because defendant could have raised these issues at trial, but did not, he has waived his right to have them considered in a motion for a new trial. Here, however, defendant does not directly raise unpreserved errors in the trial proceedings; rather, he challenges those decisions in the context of ineffective assistance of counsel, a claim which has not yet been waived. See Commonwealth v. Egardo, 426 Mass. 48, 49 (1997) (unrealistic to expect that defendant's first attorney would have raised a claim questioning his own competence).
The Commonwealth contends that defendant's motion is merely a "vehicle to compel [the] trial judge to review and reconsider questions of law which could have been raised at trial but were not." A court must not allow a claim of ineffective assistance of counsel "to allow casual evasion of the basic rule that errors not objected to are waived." SeeCommonwealth v. Coleman, 366 Mass. 705, 7101 (1975). On the other hand, a defendant ought not be deprived of review of his claim of ineffective assistance of counsel simply because the claim involves errors that could have been addressed, and thus preserved, at trial. The court will resolve the conundrum by relying on the sentiments expressed in Commonwealth v.Harrington, 379 Mass. 446, 449 (1980) (trial judge's discretionary power to give relief from waiver by permitting issues to be raised for the first time in a motion for a new trial "should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result").
While most of defendant's current claims of error were not addressed at trial, and thus remain alive, at least for purposes of the Harrington "miscarriage of justice" analysis, two claims do raise issues that were addressed and expressly waived by defendant in pre-trial proceedings or at trial, viz. TDC's potential conflict of interest and TDC's failure to insure that defendant was presented to the jury in an unmedicated state. Defendant now challenges his counsel's decisions. This court must first determine whether defendant's waiver of his right to protest his counsel's conduct was knowing and voluntary. See Commonwealth v.Martinez, 425 Mass. 382, 392 (1997). If so, the standard for review is whether, "upon sober reflection, it appears that a miscarriage of justice might otherwise result." See Commonwealth v. Gagliardi, 417 Mass. 562, 565 (1994); Commonwealth v. Harrington, 379 Mass. 446,449 (1980).
We turn now to an examination of these two assertedly waived claims and, thereafter, to a review of defendant's other claims as to which waiver is not at play.
RULINGS OF LAW
I. WAIVED CLAIMS A. Conflict of Interest: Dual Representation
Voluntariness
Because defendant had two lengthy conversations with TDC regarding the potential conflict involved in a dual representation, and because defendant informed the court after inquiry that he understood the potential risks of dual representation but wanted TDC to continue to represent him, this court is persuaded that defendant made a knowing and voluntary decision to have TDC represent him despite any potential conflicts created by the dual representation. See Commonwealth v.Martinez, supra, at 392.
Substantial Risk of Miscarriage of Justice
(a) A genuine conflict is not created by the mere existence of a dual representation. Id. at 389. Where, as here, the defendant demonstrates the existence of only a potential conflict, he must also prove that he was materially prejudiced by the conflict. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). At bar, defendant has presented no evidence that TDC's representation of Dr. Kessler interfered with his ability to cross examine Dr. Kessler effectively during trial. There is no evidence that TDC's independent professional judgment was impaired either by his own interests or by the interests of someone other than the defendant. Id. Thus, defendant has not demonstrated that he was materially prejudiced by TDC's potential conflict and that his decision to waive the potential conflict of interest therefore constituted a substantial risk of a miscarriage of justice. Accordingly, this court concludes that defendant has surrendered his opportunity to protest TDC's alleged divided loyalty in connection with his cross examination of Dr. Kessler.
(b) Defendant also suggests that, due to his loyalty to Dr. Kessler, TDC failed to investigate the possibility that James was killed by defendant's first blow. He argues that, if TDC had presented testimony from another pathologist that James died as the result of the first blow, the jury might have determined that James did not experience any pain or suffering and the Commonwealth would have been unable to prove that the killing was extremely atrocious or cruel.
In determining the extreme atrocity or cruelty issue, the jury must consider the so-called "Cunneen" factors, to wit, the defendant's indifference to the victim's suffering; the victim's consciousness and degree of suffering; the extent of the injuries; the number of blows; the manner and force with which the wounds occurred; the instruments employed by the defendant; and the disproportion between the force used by the defendant and the means necessary to cause death. See Commonwealth v.Cunneen, 389 Mass. 216, 227 (1983). Although the jury must find at least one of the Cunneen factors to support its verdict, there is no one factor that is an essential element of extreme atrocity and cruelty, and the jurors do not have to be unanimous as to which Cunneen factor is found. See Commonwealth v. Hunter, 427 Mass. 651, 657-58 (1998).
At bar, the jury heard evidence that defendant, an adult male, beat a five week old baby so severely that he crushed the baby's skull, broke several of his ribs, and seriously damaged his lungs. Thus, even if death resulted from the first blow, the jury had ample evidence from which to conclude that the case presented an occasion of "savage, unfeeling [and] long-continued brutality." See Commonwealth v. Golston, 373 Mass. 249, 260 (1977), cert. denied, 434 U.S. 1039 (1978). It is beyond dispute, therefore, that several of the Cunneen factors were demonstrated by the evidence. Defendant has failed to show that, in deciding not to seek evidence that the death was occasioned by a "first blow", TDC deprived Boateng of "an otherwise available, substantial defense." SeeCommonwealth v. Saferian, supra, 366 Mass. at 96. For, even had "first blow" evidence been adduced, the evidence aliunde of Cunneen factors was sufficient to support the jury in an extreme atrocity and cruelty verdict.
In sum, defendant was informed in advance about his attorney's representation of Dr. Kessler on another matter; made a voluntary decision, upon inquiry by the court, that he wanted TDC to continue to represent him despite the possibility that TDC might labor under divided loyalties; failed to show that the dual representation interfered in any way with TDC's ability to cross examine Dr.Kessler effectively; and failed to show that testimony from another pathologist would have provided him with an otherwise available substantial defense. Defendant has not demonstrated that TDC's potential conflict of interest created a substantial risk of a miscarriage of justice and defendant's waiver forecloses his present assault on the effectiveness of his counsel as to this issue.
B. TDC's Failure to Insure that Defendant was Presented to the Jury in an Unmedicated State .
Voluntariness
A defendant has the right to request that, if found competent, he be permitted to attend the trial in an unmedicated condition in order to enable the jury to consider his true demeanor on the issue of mental capacity. See Commonwealth v. Louraine, 390 Mass. 28, 32 (1983). At bar, however, defendant requested that he be allowed to take medication during his trial, and his request was supported by mental health professionals who had treated him. The court determined, upon inquiry, that defendant felt that he needed to continue to take his medications throughout the trial, and there is nothing in the record to suggest that his decision was not voluntary.
Substantial Risk of Miscarriage of Justice
The evidence demonstrates that defendant, with the support of his physicians, made a knowing and voluntary decision to discontinue his medication during trial and feared that failure to take his medication might prejudice his defense. There is, therefore, no risk of a substantial miscarriage of justice in defendant's decision to waive his right to be presented to the jury in an unmedicated state, and TDC's omission to challenge his client's knowing and intelligent waiver cannot now be advanced as a reason to afford defendant a new trial.
II. CLAIMS TO BE REVIEWED UNDER THE STANDARD OF A SUBSTANTIAL RISK OF MISCARRIAGE OF JUSTICE
In order to resurrect issues that were not waived, but were also not preserved at trial, the court must find that TDC's failure to preserve those issues resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). A review of the trial record and the evidence presented at the Rule 30 hearings provides this court with no reason to conclude that any of TDC's alleged errors at trial resulted in the risk of a substantial miscarriage of justice. Most of defendant's present objections are to strategic decisions made by counsel during trial, usually following consultation with and approval by the defendant. His other challenges take aim at TDC's omissions to object to the trial judge's jury instructions and to the prosecutor's closing arguments. But, neither objection, had it been lodged, would have borne fruit because the instructions and the argument were not infected with error. Consequently, the court finds that "the evidence and the case as a whole" create no "serious doubt that the defendant's guilt had been fairly adjudicated," Commonwealth v. Amirault, 424 Mass. 618, 647 (1997), and declines to resurrect those infertile issues.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Assuming arguendo, however, that TDC's alleged failure to preserve certain issues at trial did create a substantial risk of a miscarriage of justice, we shall, in an abundance of caution, evaluate defendant's claims under the standard employed to gauge the existence vel non of ineffective assistance of counsel at trial. To prevail on the counsel issue, defendant must persuade the court that "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 so, whether it has likely deprived the defendant of a substantial ground of defense." See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Stated otherwise, in order to substantiate a claim of ineffective assistance of counsel, a defendant must show that, but for the sub-standard services of his attorney, there was a reasonable probability that the outcome of the trial would have been different. SeeCommonwealth v. Shea, 401 Mass. 731, 744 (1988).
The fact that the strategies pursued by defense counsel were not successful does not mean that those strategies were unreasonable. SeeCommonwealth v. Sielecki, 391 Mass. 377, 379 (1984).Trial strategies, "which, from the vantage point of hindsight, can be seen to have failed do not amount to ineffective assistance unless 'manifestly unreasonable' when undertaken. Id., (emphasis added), quoting Commonwealth v. Levia, 385 Mass. 345,353 (1982). Because most of the objections now raised by defendant focus upon strategic decisions made by his counsel, the court must consider whether those decisions were "manifestly unreasonable when undertaken." Id.
A. TDC's failure to call Dr. Spiers as a Witness
Defendant argues that TDC's failure to call a second psychological expert, Dr. Spiers, at trial constituted ineffective assistance of counsel. Where counsel makes a reasoned decision not to present testimony that is inconsistent with counsel's defense strategy, that decision has been found not to fall measurably below the standard for effective assistance of counsel. See Commonwealth v. Nieves, 429 Mass. 763, 771 (1991). Here, the decision was clearly reasonable. Findings of Fact, paragraphs 3 and 4, supra.
B. TDC's failure to offer defendant's medical records into evidence
A defendant has the right to present a jury with "any evidence which is probative of his mental condition." See Commonwealth v. Sheriff, 425 Mass. 186, 190 (1997). At bar, however, TDC believed that the records contained additional material that might have diminished defendant's insanity claim, and he made a reasonable strategic decision not to introduce the records. Findings of Fact, paragraph 11, supra. The fact that a strategy pursued by defense counsel was not successful does not mean that the strategy was unreasonable. See Commonwealth v.Sielecki, 391 Mass. 377, 379 (1984). Furthermore, failure to introduce portions of a medical record does not constitute ineffective assistance where, as here, witnesses had testified to that evidence during trial. See Commonwealth v. Achorn, 25 Mass. App. Ct. 247, 253 (1988). Defendant has not identified any material information in his voluminous medical records that was not presented, in substance, to the jury through the expert witnesses. Thus, counsel's decision not to offer the medical records did not constitute ineffective representation "for the reason, if no other, that his action appears to have been a tactical judgment which was not manifestly unreasonable." Id, quoting Commonwealth v. Drayton 386 Mass. 39, 41 (1982).
C. Trial Counsel's Failure to Challenge the Admissibility of Defendant's Statements to Witnesses and to the Police.
The court finds no evidence that TDC's election not to seek exclusion of defendant's statements was manifestly unreasonable. TDC did not attempt to suppress defendant's statements because he thought such a motion was unlikely to succeed and because he thought that suppressing or diminishing the effect of defendant's admissions would probably serve only to erode his insanity defense. Those decisions were not manifestly unreasonable. See Findings of Fact, paragraph 6, supra.
D. Trial Counsel's Failure to Object to the Prosecutor's Closing Argument
Defendant argues that the prosecutor, in his closing, improperly vouched for the credibility of the Commonwealth's psychiatric expert, disparaged the credibility of the defendant's expert, and "purposefully misstated the testimony of both experts with the intent to mislead the jury." See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).
While a prosecutor is free to argue that a certain witness is credible, the prosecutor "may not explicitly or implicitly vouch to the jury that he or she knows that the witness's testimony is true." Id. Thus, a prosecutor may not indicate to the jury "that he or she has knowledge independent of the evidence before the jury verifying a witness's credibility." Id. At bar, the record reflects that the prosecutor was careful to limit his remarks to the evidence that had been presented to the jury; he did not indicate that he was privy to any special knowledge that had not been presented to the jury. Moreover, the prosecutor reminded the jury repeatedly that his comments were merely suggestions, that it was up to the jury to assess the credibility of the witnesses, and that if the jury's memory of testimony differed from his, the jury's memory controlled.
It is permissible for a prosecutor to argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 518-19 (1987). At bar, the prosecutor's comments about the relative experience or subjectivity of the experts were well within that standard. The prosecutor merely asked the jury to consider those factors when they assessed the credibility of the experts. See Commonwealth v. Thomas, 401 Mass. 109, 113 (1987) (where credibility is at issue, "it is certainly proper for counsel to argue from the evidence why a witness should be believed"). If, as here, the prosecutor's remarks constitute proper closing argument, defense counsel's failure to object to them was not manifestly unreasonable. In addition, the judge explained to the jury that the remarks of counsel were not evidence and instructed that the jury alone assesses the evidence and determines the credibility of the witnesses. See Commonwealth v. Calcagno, 31 Mass. App. Ct. 25, 31 (1991) (improper summation did not harm defendant where judge told the jury to decide the case on the evidence and instructed that closing arguments are not evidence). There was no ineffectiveness of counsel in the manner in which TDC responded to the prosecutor's closing.
E. Failure to Argue Insufficient Evidence
Although TDC filed a motion for a required finding of not guilty on all charges, the defendant argues that counsel improperly failed to present oral argument that the evidence on the indictments charging assault and battery with a dangerous weapon and armed assault with intent to murder was insufficient as a matter of law. Defendant argues that, by failing to produce the stick that was allegedly utilized in the attacks, the Commonwealth failed to provide the jury with the necessary information to evaluate the dangerousness of the stick.
In considering a motion for a required finding of not guilty, the court must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." SeeCommonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). A weapon may be dangerous per se or dangerous as used. See Commonwealth v. Appleby, 380 Mass. 286, 303 (1980). Defendant argues that because the jury did not actually see the stick allegedly used in the attack, they were unable to determine whether the stick was used in a dangerous fashion. The jury could have made such a determination, however, from the testimony of the victim. See Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922-23 (1984) (rescript) (victim's testimony that defendant struck him with booted feet provided sufficient proof for the jury to find assault and battery with a dangerous weapon). Thus, trial counsel's failure to offer oral argument with respect to the absence of certain real evidence (i.e. the actual stick) was not manifestly unreasonable.
F. TDC's Failure to Object to Jury Instructions
Defendant contends that several of the court's jury instructions contained significant errors of fact or of law, and that trial counsel's failure to object to those instructions constituted ineffective assistance of counsel. We shall examine each challenged instruction in turn to determine whether TDC's omissions were substandard and prejudicial to defendant's case.
1. Extreme Atrocity or Cruelty
Defendant asserts that the judge improperly instructed the jury that extreme atrocity or cruelty could be found even if the death resulted from a single blow. As discussed in section I.A.(2).(b), supra, the judge's instruction that the jury find only one of the Cunneen factors to support a verdict of murder with extreme atrocity or cruelty was correct. See Commonwealth v. Cunneen, supra, 389 Mass. at 227. Here, TDC's failure to object to the instruction was not ineffective lawyering.
2. Malice Aforethought (Third Prong Malice)
Defendant argues that the court erred in its instructional definition of "malice aforethought". The argument is without merit.
Massachusetts law provides that malice has three prongs: (1) the intent to kill; (2) the intent to inflict grievous bodily harm; or (3) the intent to do an act which, in the circumstances known to the defendant, a reasonable person would have known, according to common experience, that there was a plain and strong likelihood that death would follow the contemplated act. See Commonwealth v. Vizcarrondo, 427 Mass. 392, 394 (n. 3), 1998. At bar, the judge followed the law and properly instructed at least three times that:
There must be for malice an unexcused intent to kill; or an unexcused intent to cause grievous bodily harm upon another; or an unexcused intent to commit an act which in the circumstances known to the defendant would create a plain and strong likelihood that death would result.
Defendant maintains, however, that the quoted language was error because the judge failed to differentiate between specific and general intent. General intent is defined as the intent to do the act that resulted in the violation, while specific intent is defined as "a purposeful and focused intention on the part of a defendant to bring about a specific result." See Commonwealth v. Collier, 427 Mass. 385, 389 (1998). The Supreme Judicial Court has held that a judge is not required to use the common law terms — specific intent and general intent — "provided that he explains to the jury. . .that a defendant must not only have consciously intended to take certain actions, but that he also intended certain consequences. . .to result from his actions." See Commonwealth v. Gunter, 427 Mass. 259, 269 (1998). At bar, the judge adequately defined the specific intent to kill as "a thought process by the defendant to kill."
In Collier, however, the Court noted that "not much is gained by adding the adjectives 'general' and 'specific' before the word 'intent'."
Defendant also argues that the judge improperly failed to instruct the jury as to the "objective" element of third prong malice. This omission, if any, is of no benefit to the defendant now because, instead of determining whether a reasonably prudent person would have recognized the risk of death (objective standard), the instant jury was required to find that defendant himself recognized that death was likely to follow his contemplated conduct (subjective standard). Therefore, the charge was more favorable to the defendant than that which the law required. SeeCommonwealth v. Doherty, 394 Mass. 341, 353 (1985).
The judge properly instructed the jury as to specific intent, and the judge's failure to instruct on an objective standard actually favored the defendant. Accordingly, trial counsel's failure to object to the instruction did not comprise ineffective assistance of counsel.
3. Involuntary Manslaughter
Involuntary manslaughter is an unlawful homicide, unintentionally caused 1) by an act which constitutes such a disregard of the probable harmful consequences to another as to constitute wanton or reckless conduct, or 2) by a harmful battery. See Commonwealth v. Pierce, 419 Mass. 28, 33 (1994). At bar, the trial judge presented the involuntary manslaughter charge to the jury under the theory of misdemeanor-battery, a decision with which TDC agreed, and the court properly instructed on that theory. TDC's omission to protest did not deprive defendant of his right to ineffective assistance of counsel.
Defendant argues that, because of the defendant's history of mental illness, the court should also have instructed the jury on the theory of "wanton or reckless conduct." Where, however, the harmful battery theory of manslaughter required the jury to find that the defendant had anintent to commit assault and battery upon the victim, the question of the defendant's alleged mental impairment was a consideration that the jury necessarily weighed in its determination of the defendant's intent. SeeCommonwealth v. Sires, 413 Mass. 292, 300 (1992). The jury was thus required to consider the defendant's mental state upon either theory of involuntary manslaughter and, insofar as defendant now suggests that counsel's omission blocked such jury consideration, his suggestion is wholly without merit.
4. Assault with Intent to Murder
Assault with intent to murder requires that the prosecution prove beyond a reasonable doubt 1) an assault 2) the specific intent to kill and 3) the absence of mitigating circumstances. See Commonwealth v.Henson, 394 Mass. 584, 591 (1985); Commonwealth v. Cowie, 28 Mass. App. Ct. 742, 745 (1990), further app. rev. denied 408 Mass. 1103 (1990). Defendant argues that, because the judge failed to instruct the jury on "the absence of justification, excuse or mitigation," his instruction was improper. He contends that the judge erred in instructing the jury that malice required a specific intent to murder.
For the lesser included offense of assault with intent to kill, however, the Commonwealth may satisfy its malice burden by proving only the specific intent to kill. Where, as here, there was no evidence of mitigation, the court's instructions were acceptable. See Commonwealth v. Correia, 18 Mass. App. Ct. 178, 183-84, review denied, 392 Mass. 1104 (1984) (failure to define provocations does not create substantial risk of miscarriage of justice where there was no evidence of provocation to negate malice). It follows that TDC's omission to raise the futile point at trial did not constitute ineffectiveness.
5. Lack of Criminal Responsibility
Defendant argues that the judge erred in using the word "major" rather than "substantial" in defining "substantial capacity" in the context of criminal responsibility. In defining lack of criminal responsibility, it is well accepted that "'any' incapacity is not sufficient. . .but that 'total' incapacity is also unnecessary." See Commonwealth v. McHoul, 352 Mass. at 546-47 (1967). At bar, the judge instructed the jury on the meaning of "substantial capacity" and subsequently described 'substantial' as the "major portion of the defendant's thinking and rational processes." The use of this phrase did not distort the meaning of substantial capacity, and TDC's failure to object did not rise to the level of ineffectiveness.
6. Voluntariness of defendant's statements
Defendant contends that the judge erred in failing to instruct the jury that the Commonwealth must prove the voluntariness of defendant's statements "beyond a reasonable doubt." Here, however, where TDC made a reasonable tactical decision not to challenge defendants statements in order to advance his NGI defense, it would have frustrated that defense strategy were TDC to have sought to cast doubt upon the voluntariness of those statements. Moreover, the trial judge repeatedly instructed the jury throughout his charge that the defendant was presumed to be innocent until his guilt was proven beyond a reasonable doubt. A jury charge must be evaluated in terms of its impression as a whole. See Commonwealth v.Quigley, 391 Mass. 461, 467 (1984), cert. denied 471 U.S. 1115 (1985). At bar, the jury instructions in their entirety left no doubt as to the burden and quantum of proof required. See Commonwealth v. Johnson, 426 Mass. 617, 620 (1998). There was no ineffectiveness of counsel in TDC's omission to protest the absence of the "beyond a reasonable doubt" charge in connection with the "humane practice."
7. Presumption of Sanity
TDC in fact objected to the court's charge on the presumption of sanity, thus preserving that issue for appellate review. There is, therefore, no occasion now to scrutinize his ineffectiveness in connection with an alleged omission to object.
CONCLUSION
Defendant failed to raise certain objections at his trial and has failed to show that the alleged errors in that trial created the substantial risk of a miscarriage of justice. Accordingly, this court is disinclined to permit him to resurrect those issues in this Rule 30 proceeding. Defendant has failed to show that the conduct of TDC fell below the standard of an ordinary fallible lawyer or, alternatively, that TDC's ineffectiveness, if any, deprived defendant of an otherwise available substantial ground of defense. The court finds no merit in any aspect of the instant motion.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendant's motion for a new trial is DENIED .
_____________________________ Daniel F. Toomey Justice of the Superior Court
Dated: September 2000