Opinion
No. 14–P–910.
10-26-2016
COMMONWEALTH v. Daniel GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following his convictions of murder in the second degree and assault and battery by means of a dangerous weapon, the defendant filed a motion for new trial in which he claimed that he received ineffective assistance of counsel at his trial. A judge of the Superior Court (who also was the trial judge, see Commonwealth v. Britto, 433 Mass. 596, 602 [2001] ) denied the motion, and the defendant appealed. We discern no abuse of discretion by the judge, and affirm.
The defendant's appeal from the order denying his motion for new trial was consolidated with his direct appeal from the convictions. However, the defendant has confined his arguments in the consolidated appeal solely to claims arising from the new trial motion.
We observe at the outset that trial counsel's affidavit makes plain that his decision not to utilize expert testimony from Dr. David Werner, together with additional medical records available for admission through his testimony, in support of an affirmative defense of mental impairment was the result of a deliberate tactical decision made by trial counsel. The defendant accordingly is entitled to relief only if that tactical “decision was manifestly unreasonable when made.” Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (quotation omitted). That assessment is made without regard to the possibility that hindsight may reveal another potentially superior strategy. See ibid. In the circumstances, we discern no abuse of discretion in the conclusion by the judge that trial counsel's decision was not manifestly unreasonable. The alternative strategy now advocated by the defendant on appeal would have relied in large part on the testimony of Dr. Werner, which inevitably would have created opportunities for the Commonwealth to elicit through cross-examination much harmful material (as summarized in Dr. Werner's written report), including many episodes of violent conduct, descriptions of violent tendencies, and lack of impulse control by the defendant. Presentation of such testimony to the jury for their consideration posed significant risks that the jurors would consider his violent nature as consistent with, or even conducive to, his culpability in the murder of the victim. In addition, it is likely that such a theory would have led to the admission of several inculpatory statements the defendant made to police concerning his prior history of violent conduct, which were excluded based on the manner in which the case was tried. Instead, trial counsel was able to elicit lay testimony regarding the defendant's bipolar disorder and intoxication on the night in question, thereby furnishing the basis for a jury instruction on mental impairment, without opening the door to the damaging information about the defendant's violent conduct and tendencies described in the Werner report. Moreover, counsel's strategy retained the possibility of an acquittal, which he pursued by attempting to develop reasonable doubt that the defendant inflicted the fatal wounds.
We note that the circumstances of this case, and the defendant's argument on appeal, are remarkably similar to those the Supreme Judicial Court rejected as a basis for a claim of ineffective assistance of counsel in Kolenovic, supra at 675–676.
Accordingly, though trial counsel asserts in his affidavit that he considers his choice of strategy to have been a mistake, the judge was not obliged to accept trial counsel's assessment, with the benefit of hindsight, of his own ineffectiveness.
Trial counsel argued that the fatal wounds were inconsistent with the blade on the knife apparently wielded by the defendant during the assault, and suggested that the wounds were inflicted by Paul Silveira, who was also present at the scene. We note that the prosecution did not proceed on a joint venture theory, and the jury were not instructed on joint venture liability. Moreover, the evidence does not compel a conclusion that, if the fatal wounds were not in fact inflicted by the defendant, the defendant “knowingly participated” in inflicting them. Commonwealth v. Zanetti, 454 Mass. 449, 467–468 (2009).
We likewise reject the defendant's suggestion that trial counsel was ineffective by reason of his failure to examine the report of Dr. Alison Fife (Fife report) before electing not to utilize expert testimony from Dr. Werner. Though counsel's decision to forego review of the Fife report rested on an incorrect premise, and his review of it would not have produced the adverse consequences he feared, his failure to review the Fife report was itself without consequence, because it would not have altered his tactical decision concerning use of Dr. Werner as an expert witness.
Finally, we reject the defendant's assertion that trial counsel was ineffective in his development of the defense strategy he chose to pursue. Specifically, the defendant contends that trial counsel effectively abandoned his own theory when he acknowledged to the jury that a conclusion that Paul Silveira was the murderer was “an awful lot to ask everyone to jump to.” See note 4, supra. Read in context, however, the comment followed a detailed inventory of the evidence pointing to the possibility that Silveira, rather than the defendant, had inflicted the fatal wounds, and simply reminded jurors that they need not conclude that Silveira was the murderer in order to hold reasonable doubt that the defendant was.
In short, trial counsel elected not to present to the jury expert testimony that would have portrayed him as a violent person, with frequent outbursts of uncontrolled violent behavior, based on an assessment that it would eliminate any practical possibility of doubt in the jurors' minds that the defendant inflicted the fatal wounds. But counsel also succeeded in placing before the jury evidence of, and instruction on, the possibility that the defendant suffered from a mental impairment sufficient to reduce his criminal culpability from murder to manslaughter. We discern no abuse of discretion by the judge in her conclusion that trial counsel was not constitutionally ineffective, and affirm.