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SJC-08464

COMMONWEALTH vs. CHARLES ROBINSON.

Barnstable. September 11, 2023. - March 22, 2024.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, 

& Georges, JJ.1

Homicide. Practice, Criminal, Appeal, Competency to stand 

trial, Assistance of counsel, Presumptions and burden of 

proof, Judicial discretion, New trial. Evidence, 

Competency, Expert opinion. Constitutional Law, Assistance 

of counsel.

Indictment found and returned in the Superior Court 

Department on May 1, 2000.

Following review by this court, 482 Mass. 741 (2019), a

second amended motion for a new trial, filed on September 2, 

2020, was considered by Mark C. Gildea, J.

Joseph F. Krowski for the defendant.

Rose-Ellen El Khoury, Assistant District Attorney, for the 

Commonwealth.

1 Justice Lowy participated in the deliberation on this case 

prior to his retirement.
2

BUDD, C.J. On August 21, 2000, the defendant, Charles 

Robinson, was convicted of murder in the first degree in 

connection with the shooting death of Edward Figueroa. The 

defendant appealed from the conviction. He also filed a motion 

for a new trial alleging multiple errors by trial counsel, which 

we remanded to the Superior Court. The direct appeal was argued 

before the motion for a new trial was heard and decided. After 

plenary review, we affirmed the conviction and declined to grant 

extraordinary relief pursuant to G. L. c. 278, § 33E. See 

Commonwealth v. Robinson, 482 Mass. 741, 742 (2019). The 

defendant's motion for a new trial thereafter was denied. He 

appealed from the denial, arguing that the judge erred in 

concluding that the defendant was not entitled to a new trial 

due to incompetency and ineffective assistance of counsel. We 

now affirm that ruling. 

Background. We present the relevant factual and procedural 

background as taken from the record, reserving certain details 

for later discussion. 

1. The homicide.2 The victim sold marijuana for the 

defendant and relied on friends to drive him to the defendant's 

2 The evidence presented in the defendant's trial is 

summarized in Commonwealth v. Robinson, 482 Mass. 741, 742-744

(2019). We provide a condensed version of events as the jury 

could have found them.
3

home to pick up the marijuana. On the evening of the murder, 

the defendant went to the victim's apartment, where he scolded 

the victim and threatened to slap and punch him because he did 

not have access to a car. When the victim's girlfriend returned 

to the apartment later that evening, she found the victim dead 

with multiple gunshot wounds.

2. The lockup conversation. On the fifth day of trial, 

trial counsel had a conversation with the defendant in the court 

house lockup area about whether the defendant would testify. 

During the conversation, the defendant made various 

nonresponsive comments.3 However, the defendant ultimately 

3 Trial counsel had a stenographer present for the 

conversation. The following is excerpted from the transcript:

Trial counsel: "What is your -- what do you -- what do you 

want to say about whether or not you will testify?"

. . .

The defendant: "Well, I feel that I shouldn't take part --

excuse my English on that one. This is not my court."

Trial counsel: "No. I understand. . . . Do you have any 

-- do you have any questions for me about what we're doing 

now, what I'm asking you to comment on?"

The defendant: "Well, it's just this is -- this is a very 

Godly, Christly, Jesus Christ type of situation. And I'm 

not sure you're representing me correctly here."

. . .

Trial counsel: "And the question I'm asking now of you 

about whether or not you wish to give testimony, I 

personally don't think there is much you could say that 
4

stated that he was "clear on" what trial counsel was asking and 

"would not like to take the stand." During the conversation, 

trial counsel suggested to the defendant that he might require a 

could assist you in the trial; and that's why I'm asking 

you these things."

The defendant: "My testimony would be in my music."

. . .

Trial counsel: "Well, Charles, do you know what you're 

here for? I mean, you understand my function and the 

District Attorney's and the Judge's function, right? I 

mean, you're not getting into something --"

The defendant: "All right."

Trial counsel: "-- where you're confused, are you?"

The defendant: "No."

Trial counsel: "I know you're an extremely intelligent 

man. So you're not confused about what's going on this 

week, right?"

The defendant: "Well, yes, I am rather confused."

Trial counsel: "What are you confused about?"

The defendant: "Excuse me. Excuse my English. Nothing."

Trial counsel: "Your English isn't bad. What do you mean? 

What's the matter with your English? I'm having no trouble 

understanding you."

The defendant [to stenographer]: "Put down some laughs."

. . .

Trial counsel: "[T]his concerns me when you start talking 

like this, laughing like you don't really know what's going 

on. You almost seem to me to [be] calling out for me to 

get a psychiatrist or something to talk to you."
5

psychiatric examination. However, trial counsel did not raise

any concerns related to the defendant's competency or mental 

health with the judge after the lockup conversation or at any 

time during trial. 

3. Postconviction. On August 22, 2000, the day after his 

conviction, and at the request of his appellate counsel, Dr. 

Carol E. Montgomery evaluated the defendant and concluded in her 

report that he had no symptoms of mental illness and that no 

follow up was necessary. A little over seven months later, the 

defendant was committed involuntarily to Bridgewater State 

Hospital (Bridgewater) for "symptoms of a manic psychosis." See 

G. L. c. 123, § 18 (a). Later that year, the defendant filed a 

motion for a new trial alleging that trial counsel was 

ineffective for failing to investigate and present evidence on 

the defendant's lack of competency to stand trial. 

The defendant was transferred back and forth between 

Bridgewater and State prison over the next few years. In 

December 2003, Dr. David Rosmarin diagnosed the defendant with 

schizoaffective disorder and "periods of mania" that could be 

controlled with medication. Rosmarin also opined that a 

psychiatric evaluation at the time of trial "would have clearly 

shown [the defendant] to be incompetent." In June 2004, at an 

evidentiary hearing on the defendant's motion for a new trial

based on the issue of competency, the judge suspended the 
6

hearing and ordered a psychological evaluation for the defendant 

due to the defendant's behavior. See G. L. c. 123, § 15 (a). 

Because proceedings were delayed due to the defendant's ensuing 

periods of incompetency and consequent institutionalizations, on 

March 16, 2011, the judge issued an order: 

(a) "that the court will take no further action on the 

prior motions";

(b) "that the defendant may file an amended motion . . . 

that clearly sets forth the factual and legal bases for 

relief"; 

(c) "that the amended motion must be accompanied by either 

a detailed supporting affidavit of an appropriate mental 

health professional or the affidavit of counsel together 

with the detailed clinical report of an appropriate mental 

health professional"; and 

(d) "that in the event the court conducts a hearing on the 

amended motion[,] said hearing will commence anew, without 

reliance upon the testimony and arguments presented on past 

occasions." 

In support of his amended motion submitted in 2014, the 

defendant employed Dr. Ronald S. Ebert to evaluate the 

defendant's competency. Based on his "clinical opinion to a 

reasonable degree of psychological certainty," Ebert concluded 

in his report that the defendant "was not competent to stand 

trial on [the day of the lockup conversation]." He also noted 

that the defendant "was demonstrating signs of major mental 

illness" during the lockup conversation "but was, as usual, 

trying to hide them."
7

In 2016 and 2019, respectively, the Commonwealth and 

appellate counsel each had an expert assess whether the 

defendant was competent at the time of trial. They arrived at

nearly opposite conclusions. The Commonwealth's expert, Dr. 

Martin J. Kelly, concluded that the defendant "did not suffer 

from a mental disease, mental defect or other psychiatric 

condition that resulted in the inability to have a rational and 

factual understanding of the proceedings and to cooperate with 

his attorney." The defendant's expert, Dr. Frank DiCataldo,

concluded that the defendant was psychotic at the time of trial,

and that his psychosis "likely" distorted his ability to 

understand the proceedings and impaired his ability to consult 

with his attorney. 

In September 2020, the defendant amended his motion for a 

new trial, submitting DiCataldo's report to support his claim of 

incompetency. In addition to claiming ineffective assistance of 

counsel for failing to raise the incompetency issue, the 

defendant included three additional reasons that his trial 

counsel was ineffective: (1) failure to move to dismiss the 

case based on an error in the grand jury proceedings, (2) 

failure to move to suppress cell site location information 

(CSLI) that tied the defendant to the crime scene at the 

relevant time period, and (3) failure "reasonably to 

communicate" with the defendant. On July 30, 2021, a different
8

judge (motion judge) denied the motion without a hearing, and 

the defendant appealed. 

Discussion. 1. Scope and standard of review. The 

defendant's direct appeal initially was stayed so that his first 

motion for a new trial could be decided. When the hearing on 

that motion was suspended, the stay on the direct appeal was 

lifted, and we heard and decided the direct appeal. Because the 

defendant filed his first motion for a new trial prior to the 

issuance of the rescript for the direct appeal, he need not 

petition the single justice as gatekeeper for leave to appeal 

from the denial of the claims in that original motion. See 

G. L. c. 278, § 33E. See also Commonwealth v. Raymond, 450 

Mass. 729, 729 n.1 (2008). However, the claims added to the 

defendant's amended motion for a new trial after the direct 

appeal was decided -- namely, the ineffective assistance of 

counsel claims unrelated to his competency to stand trial -- are 

not reviewable without first seeking leave from the gatekeeper. 

See G. L. c. 278, § 33E. We review the remaining claims 

underlying the defendant's first motion for a new trial for an 

abuse of discretion. See Commonwealth v. Sanchez, 485 Mass. 

491, 498 (2020) ("A motion for a new trial is addressed to the 

sound discretion of the judge. '[A]n appellate court will 

examine the motion judge's conclusion only to determine whether 
9

there has been a significant error of law or other abuse of 

discretion'" [citation omitted]). 

2. Evidentiary hearing. As an initial matter, the 

defendant claims that the motion judge erred by denying the 

motion without an evidentiary hearing on the question of the 

defendant's competency to stand trial. Like the decision on a 

motion for a new trial, the decision whether to hold an 

evidentiary hearing or to decide the motion based on affidavits 

and other documents "is left largely to the sound discretion of 

the judge." Commonwealth v. Toney, 385 Mass. 575, 579 (1982),

quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). 

A judge may decide a motion for a new trial on the papers 

alone "if no substantial issue is raised by the motion or 

affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 

Mass. 1501 (2001). "In determining whether a 'substantial 

issue' meriting an evidentiary hearing under rule 30 has been 

raised, we look not only at the seriousness of the issue 

asserted, but also to the adequacy of the defendant's showing on 

the issue raised." Stewart, 383 Mass. at 257-258. Although the 

judge recognized the question of the defendant's competency as a 

serious issue, he determined that an evidentiary hearing was not 

required based on the defendant's submissions. There was no 

abuse of discretion. 
10

The documents presented to the judge included, among 

others, expert reports and other evaluations of the defendant's

mental health, the trial transcript, and the transcribed 

conversation in the lockup between the defendant and trial 

counsel.4 

The judge determined that an evidentiary hearing was not 

necessary to decide the motion where the dispute centers on the 

conclusion each party draws from an undisputed record. See 

Commonwealth v. Shuman, 445 Mass. 268, 279 (2005) (dispute among 

experts does not automatically require evidentiary hearing). 

This is especially true here, where the defendant requested an 

evidentiary hearing in 2021 that would involve the testimony of 

expert witnesses who opined in 2016 and 2019 respectively on the 

defendant's competency at a trial that took place in 2000. See 

Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 640 (2001) 

("Given the passage of time, the dimming of memories, and the 

deaths of the primary witnesses . . . an evidentiary hearing was 

likely to be of more theoretical than actual assistance"). At 

bottom, there was no showing that, in addition to the evidence 

4 The defendant also submitted affidavits from the 

defendant's mother and the mother of his children, describing 

the defendant's unusual behavior in the years prior to the 

murder. The judge concluded that testimony from these affiants 

would be unhelpful as there was no indication that they would 

provide information beyond what was contained in the affidavits. 

See Commonwealth v. DeVincent, 421 Mass. 64, 68 (1995). 
11

submitted, an evidentiary hearing would have aided the judge in 

deciding the issue. See Commonwealth v. Goodreau, 442 Mass. 

341, 348 (2004). Thus, the judge did not abuse his discretion 

by deciding the motion without one.5

3. Claims. a. Incompetency claim. It is 

unconstitutional under both the Fourteenth Amendment to the 

United States Constitution and art. 12 of the Massachusetts 

Declaration of Rights to try (and convict) a person who is not

competent to stand trial. See Commonwealth v. Chatman, 473 

Mass. 840, 846 (2016) (Chatman II). Rather than being dependent 

upon the "presence or absence of any particular psychiatric 

diagnosis," whether a defendant is competent to stand trial 

depends on his or her "functional abilities." Id. at 846-847, 

quoting Goodreau, 442 Mass. at 350. That is, a defendant is 

competent to stand trial if he or she (1) has "sufficient 

present ability to consult with his [or her] counsel with a 

reasonable degree of rational understanding," and (2) has a 

5 The defendant also argues that he is entitled to an 

evidentiary hearing because the 2011 order directing the 

defendant to file an amended motion for a new trial "presumed a 

future hearing." This argument is misplaced. The order 

provides that "in the event the court conducts a hearing on the 

amended motion[,] said hearing will commence anew" (emphasis 

added). Thus, contrary to the defendant's contention, there was

never an underlying presumption that a new hearing would be held 

on his motion. 
12

"rational as well as factual understanding of the proceedings"

(citation omitted). Chatman II, supra at 847. 

If a defendant raises the issue of his competency before or 

during trial, the Commonwealth has the burden to prove both 

prongs by a preponderance of the evidence. See Commonwealth v. 

Brown, 449 Mass. 747, 760 (2007). However, where, as here, the 

defendant failed to raise the issue until after his conviction, 

it is he who has the burden of proof. The defendant must 

demonstrate "by a preponderance of the evidence that the 

Commonwealth would not have prevailed had the issue been raised 

at trial." Chatman II, 473 Mass. at 847, quoting Commonwealth

v. Chatman, 466 Mass. 327, 336 (2013) (Chatman I). That is, the 

"defendant bears the burden of establishing that, had the issue 

been raised before or during trial, the Commonwealth could not 

have proved either the first or the second prong of the 

competency test." Chatman II, supra. To satisfy this burden, 

"the defendant need not make a showing that he was incompetent; 

instead, [he] may satisfy his . . . burden by showing 'that the 

weight of the evidence of competenc[y] and the weight of the 

evidence of incompetenc[y] are in equipoise.'" Id., quoting

Chatman I, supra at 336 n.7. The judge concluded that the 

defendant did not make such a showing. We agree.

The defendant and the Commonwealth each engaged an expert 

to render an opinion as to whether the transcribed lockup 
13

conversation evidenced that the defendant had a mental illness 

at that time affecting his competency to stand trial. 

The defendant's expert, DiCataldo, contended that the 

defendant's unusual statements during the lockup conversation 

were "indicative of underlying psychotic thinking." DiCataldo 

concluded that the defendant was "psychotic" at the time of 

trial, and that the "psychosis likely distort[ed] his rational 

understanding of the proceedings against him and significantly 

impair[ed] his ability to meaningfully consult with his 

attorney."6 

Although DiCataldo referenced Montgomery's report, in which

she arrived at the opposite conclusion after examining the 

defendant four days after the lockup conversation, he made no 

attempt to explain the variance. Moreover, in noting that other 

evaluators subsequently opined that the defendant was mentally 

ill, DiCataldo did not contend with the fact that the first such 

diagnosis did not occur until almost eight months after his 

trial. 

The Commonwealth's expert, Kelly, opined that the lockup 

conversation was not an indication that the defendant was 

6 DiCataldo did not reach a conclusion regarding the 

defendant's competency to stand trial, stating, "To observe his 

psychosis would have required directly talking with him and 

asking him about his perceptions and beliefs about the trial 

proceedings."
14

mentally ill, and that he was competent to stand trial. 

Remarking that an acute psychiatric condition would have 

manifested itself during the trial, Kelly noted that there was 

nothing in the trial transcript indicating that the defendant 

behaved in an unusual manner at all. 

Kelly also found relevant the results of Montgomery's 

evaluation of the defendant the day after he was convicted (four 

days after the lockup conversation). Specifically, Montgomery 

observed that the defendant was calm and cooperative, his speech 

was "well modulated," and his thought process was "organized"

and "goal oriented." She also noted that the defendant did not 

complain of problems with sleep, concentration, or 

hallucinations. Montgomery concluded that the defendant did not 

suffer from any mental illness at that time and that a follow-up 

appointment was not necessary. As a result, it was Kelly's 

opinion that rather than documenting a "delusional or psychotic 

mental condition," the transcribed lockup conversation reflected 

a realization on the part of the defendant that "it was not 

particularly in his interest" to have the conversation recorded. 

Given the record, the judge credited the opinion of Kelly, 

the Commonwealth's expert, which was based on the information 

closest in time to the defendant's condition at trial, and thus 
15

the most salient.7 The judge ultimately concluded that the 

defendant made a logical decision not to testify in his own 

defense and communicated that decision to his attorney. There 

was no abuse of discretion. 

b. Ineffective assistance of counsel. The defendant 

contends that his counsel was ineffective on a number of fronts,

including counsel's (1) failure to raise the competency issue, 

(2) failure to "reasonably . . . communicate with" the 

defendant, (3) failure to move to dismiss the case based on an 

error in the grand jury proceedings, and (4) failure to move to 

suppress CSLI that tied the defendant to the crime scene at the 

relevant time period. However, as mentioned supra, only claims 

raised before the issuance of the rescript for the direct appeal 

are reviewable under G. L. c. 278, § 33E, without a preliminary 

determination by a gatekeeper. As the first motion for a new 

trial raised a claim of ineffective assistance of counsel for 

trial counsel's failure to raise the competency issue at trial, 

we limit our review accordingly. 

When reviewing a claim of ineffective assistance of counsel 

under § 33E, we evaluate whether a substantial likelihood of a 

7 As for the affidavits from the family members, the judge 

considered the credibility of the affidavits in light of the 

family members' motives and ultimately afforded them little, if 

any, weight. See Commonwealth v. Grant, 426 Mass. 667, 673 

(1998).
16

miscarriage of justice occurred. See Commonwealth v. Yat Fung 

Ng, 489 Mass. 242, 249 (2022), S.C., 491 Mass. 247 (2023). That 

is, we determine whether any error on the part of defense 

counsel was likely to have influenced the jury's conclusion. 

See id. In order to prevail on the theory that failing to raise 

competency as an issue constituted ineffective assistance of 

counsel, the defendant must show that the claim "would have been 

successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). 

As the motion judge correctly concluded that the competency 

claim lacked merit, the defendant failed to make the necessary 

showing. There was no error. 

Relatedly, the defendant contends that trial counsel was 

ineffective because he failed "reasonably to communicate with 

[the defendant]." Although the defendant's argument encompasses 

the entire attorney-client relationship, for the reasons 

explained supra, we focus on trial counsel's work during and 

after the lockup conversation. According to the defendant, had 

trial counsel "better appreciated [the defendant's] psychosis 

during the lockup conversation," counsel would have requested a 

mental health evaluation and the defendant would not have been 

convicted. This argument is without merit for reasons stated 

supra. 

Moreover, "to provide a ground for a new trial, the 

breakdown of the attorney-client relationship must be such that 
17

it leads to an apparently unjust verdict, prevents an adequate 

defense or threatens the defendant's right to a fair trial"

(citations and quotation omitted). Commonwealth v. Tuitt, 393 

Mass. 801, 806 (1985). The defendant's unusual comments 

notwithstanding, the lockup conversation provides no evidence of 

a breakdown of the attorney-client relationship at all, much 

less one that requires a new trial. 

4. Review under G. L. c. 278, § 33E. The defendant 

requests relief under G. L. c. 278, § 33E, in the form of a new 

trial. We reviewed the entire record of this case when it was 

before this court on direct appeal and rejected the defendant's 

request for extraordinary relief under § 33E at that time. See 

Robinson, 482 Mass. at 753. We see no basis to revisit that 

ruling.

Conclusion. For the foregoing reasons, the order denying 

the defendant's motion for a new trial is affirmed.

So ordered.