Opinion
No. 11–P–1136.
2013-06-10
COMMONWEALTH v. Lawrence ZINSER.
By the Court (KANTROWITZ, BERRY & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of armed assault with intent to kill, assault and battery by means of a dangerous weapon, and two counts of malicious destruction of property over $250. In 2001, this court affirmed the defendant's convictions in an unpublished decision issued pursuant to our rule 1:28. See Commonwealth v. Zinser, 51 Mass.App.Ct. 1105 (2001). In 2004, the defendant moved for a new trial, alleging that his trial counsel was ineffective in failing to adequately investigate a mental health defense. The motion judge, who was also the trial judge, held a full evidentiary hearing, during which the defendant's trial attorney testified, and denied the defendant's new trial motion. We affirm.
We note that in 2003 the defendant filed an ex parte motion for a new trial, which was denied. The appeal of that order was dismissed by this court. The defendant then filed in 2004 a second motion for a new trial on the same grounds, which the judge denied on the basis that the defendant's claim should have been raised in his direct appeal and was therefore waived. On appeal from that order, the Supreme Judicial Court determined that the defendant's claim of ineffective assistance was properly raised in a motion for a new trial and was not waived. See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006). The case was therefore remanded to the Superior Court, where the judge considered the defendant's new trial motion on its merits and, once again, denied it. The present appeal resulted.
1. Background. The defendant's convictions resulted from a late-night altercation at the home of a woman whom the defendant had been harassing for some time. The defendant, wearing dark clothes and a ski mask, entered the woman's driveway and slashed the tires on at least one of her family's cars. The woman's husband and brother, who also lived in the home, emerged and confronted the defendant. A struggle ensued, and the defendant stabbed both men before fleeing the scene. Police arrested the defendant later that night. Trial counsel, who had represented the defendant in a prior matter, was aware that the defendant had suffered a serious head injury in 1985 and, since then, had been treated for mental health problems. While preparing for this trial, trial counsel had sought and received court funding to hire a forensic pathologist (Dr. Sussman), principally for the purpose of reviewing the severity of the victims' injuries. Trial counsel also sought advice from Dr. Sussman regarding the appropriateness of asserting a diminished capacity defense at trial. While Dr. Sussman advised trial counsel that one of the defendant's treating mental health professionals would be in a better position to make a recommendation, Dr. Sussman also specifically advised trial counsel that a defense of diminished capacity might exist if the defendant had not been taking his prescribed medications at the time of the incident.
Following Dr. Sussman's advice, trial counsel first attempted to contact various mental health professionals who had worked with the defendant. These attempts all ran into “dead ends,” as defense counsel testified at the hearing on the new trial motion. Trial counsel then questioned the defendant specifically as to whether the defendant had been taking his prescribed medications at the time of the incident. The defendant assured defense counsel that he faithfully took his medication as prescribed. Ultimately, trial counsel and the defendant settled on the defense of self-defense, and trial counsel's further investigation into a mental health defense simply “fizzled out.” At trial, the self-defense strategy was at least partially successful, as the jury acquitted the defendant on one of the two counts of armed assault with intent to murder, and on the other count, returned a guilty verdict on the lesser-included offense of armed assault with intent to kill.
2. The motion for a new trial. In his motion for a new trial, the defendant argued that, because defense counsel was on notice of the defendant's potential mental health issues, it was ineffective assistance for defense counsel not to have conducted a more thorough investigation of a mental health defense. The precise issue before the judge was whether defense counsel's conduct amounted to “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 an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The judge heard testimony from trial counsel and from Dr. Howe, who was the defendant's expert forensic psychologist. In addition, the Commonwealth admitted a report from Dr. Brower, a psychiatrist who reviewed various medical and mental health records of the defendant and interviewed the defendant in 2007. In his written memorandum of decision and order, the judge correctly acknowledged that “failure to investigate a defendant's mental state can constitute ineffective assistance [of counsel], ‘if facts known to, or accessible to, trial counsel raised a reasonable doubt as to the defendant's mental condition.’ Commonwealth v. Doucette, 391 Mass. 443, 458–459 (1984), quoting Commonwealth v. Fletcher, 435 Mass. 558, 564 (2002).” The judge then determined that defense counsel met his burden of at least considering and investigating the viability of a mental health defense, and that, on the particular facts of this case, trial counsel's conduct fell within the bounds of that of an ordinary, fallible lawyer. Specifically, the judge noted that trial counsel interviewed the defendant several times, examined the defendant's medical records, considered the nature of the incident and the extent of the victims' injuries, and shared the defendant's mental health records with Dr. Sussman. The judge also concluded, in any event, that trial counsel's conduct did not deprive the defendant of an otherwise available, substantive ground of defense. The judge denied the defendant's motion, and this appeal followed.
3. Discussion. “Our review of the grant or denial of a motion for new trial is limited to whether the judge's decision constitutes an abuse of discretion or contains any other error of law. In connection with this review, we give special deference to both the findings of fact and the ultimate decision of the motion judge where, as here, he also served as the trial judge.” Commonwealth v. Lane, 462 Mass. 591, 597 (2012) (citations and quotation marks omitted). For the reasons that follow, we conclude that the judge's denial of the defendant's motion for a new trial was proper.
This is not a case, like Commonwealth v. Roberio, 428 Mass. 278 (1998), where defense counsel failed to perform any investigation of a mental health defense and instead relied on his own cursory assessment of the defendant's mental state. Id. at 279 & n. 2. To the contrary, trial counsel here consulted Dr. Sussman on the precise issue of the appropriateness of a mental health defense. As a forensic pathologist and medical doctor, Dr. Sussman was qualified to offer a professional opinion. Although Dr. Sussman himself acknowledged that mental illness was not his specialty, trial counsel was still entitled to consider and weigh his advice. Ultimately, Dr. Sussman made two suggestions as to how trial counsel could conduct further investigation. Trial counsel followed this advice by attempting to contact the defendant's mental health doctors and by investigating whether the defendant had been taking his prescription medications at the time of the incident. Neither of these avenues led any closer to a conclusion that a mental health defense would have benefitted the defendant—especially when an alternative trial strategy had emerged that promised more favorable results. In the context of this particular case, we are not convinced that this level of investigation fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. at 96.
Significantly, trial counsel's decision to forego a mental health defense was made with the knowledge and consent of the defendant. As the judge pointed out, and the record reflects, the defendant was actively involved in every aspect of trial preparation and his own defense. In one of the defendant's many letters to trial counsel, he even openly rebuked defense counsel for attempting to procure his mental health records. “[The defendant's] informed and voluntary agreement to proceed in accordance with trial counsel's recommendation further undermines (although does not preclude) his ability now to claim that counsel was ineffective for pursuing that strategy at trial.” Commonwealth v. LaCava, 438 Mass. 708, 716 (2003).
As noted by the judge in his memorandum of decision and order: “[Trial counsel] also discussed a number of defenses with [the defendant] as he prepared for trial, including criminal responsibility and diminished capacity, before they settled on a defense of self-defense. This decision was not reached lightly, and it evolved as [trial counsel] and [the defendant] worked together over the course of more than 20 meetings. [The defendant] also wrote frequent letters to [trial counsel] about his case, often several times a week. He was keenly interested in his case and agreed with the planned defense of self-defense.”
Specifically, the defendant wrote: “Richard, I[sic] curious! Why are you concerning yourself with my mental-health doctors out in Westfield ... ? You SHOULD be concerned w/my MEDICAL doctors!”
Nor was this an unreasonable decision by trial counsel in the circumstances of this case. One of the key considerations in the defendant's case was the exclusion of evidence of the defendant's prior bad acts. Trial counsel fought adamantly for, and ultimately succeeded in, excluding various prior bad acts evidence. Had the defendant asserted a mental health defense, it is quite likely—as the judge noted—that evidence of the defendant's previous criminal activity would have been admitted. 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 a constitutional sense”).
To quote the defendant in a letter to trial counsel: “You must suppress all past charged/uncharged incidents. Doing that far outweighs anything else.”
Finally, we have reviewed the affidavit, report, and testimony from forensic psychologist Dr. Howe, all of which was considered by the judge. Dr. Howe stated her opinion, that the defendant suffers from a “significant mental illness” and mental defect, and that in 1997, there were medical records available that could have been reviewed in connection with advancing a criminal responsibility defense. Nevertheless, the outcome of this appeal does not hinge on a post hoc assessment of the defendant's mental health. As the judge points out in his memorandum of decision and order, “[t]he issue in the present case is not whether [the defendant] could have raised a defense of lack of criminal responsibility, but rather whether the failure to do so constituted serious incompetence on the part of his trial counsel” (emphasis added). For all of the reasons set forth above, we conclude that the defendant was not denied effective assistance of counsel.
Order entered April 19, 2011, denying motion for new trial affirmed.