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SJC-11403

COMMONWEALTH vs. EUNICE M. FIELD.

Plymouth. March 10, 2017. - August 1, 2017.

Present: Gants, C.J., Hines, Lowy, & Budd, JJ.

Homicide. Constitutional Law, Assistance of counsel, Admissions 

and confessions, Voluntariness of statement. Mental 

Impairment. Evidence, Admissions and confessions, 

Voluntariness of statement, Videotape, Competency.

Practice, Criminal, Capital case, Assistance of counsel, 

Admissions and confessions, Voluntariness of statement, 

Competency to stand trial.

Indictment found and returned in the Superior Court 

Department on October 21, 2010.

The case was tried before Charles J. Hely, J., and a motion 

for a new trial, filed on June 16, 2014, was heard by him.

Elizabeth Caddick for the defendant.

Stacey L. Gauthier, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. In August, 2010, the victim, Lorraine Wachsman, 

was stabbed to death. A jury in the Superior Court found the 

defendant guilty of murder in the first degree on theories of 
2

deliberate premeditation and extreme atrocity or cruelty. The 

defendant appeals from her conviction and from the denial of her 

motion for a new trial.

The defendant asserts several claims of ineffective 

assistance of counsel, centering on trial counsel's failure to 

consult with a mental health expert regarding (1) a defense of 

mental impairment, including impeaching the Commonwealth's 

mental health expert; (2) the suppression of statements made by 

the defendant during two police interviews; and (3) the 

defendant's competency to stand trial. Although we conclude 

that trial counsel erred by failing to consult with a mental 

health expert, the error does not require reversal of the 

defendant's conviction. See Commonwealth v. Nolin, 448 Mass. 

207, 220 (2007); Commonwealth v. Wright, 411 Mass. 678, 682 

(1992), S.C., 469 Mass 447 (2104). We also decline to grant 

relief under G. L. c. 278, § 33E.

Background. We recite the facts the jury could have found 

in the light most favorable to the Commonwealth, reserving 

certain details for our analysis of the issues.

The defendant, who was prescribed medication for bipolar 

disorder, and who had a history of substance abuse, came to know 

the victim through Alcoholics Anonymous (AA). The defendant and 

the victim had a strained relationship for some time leading up 

to the victim's death. The victim was close with the 
3

defendant's former longtime girl friend and acted as the girl 

friend's AA "sponsor." The defendant blamed the victim for the

defendant's romantic relationship with the girl friend ending in 

early 2010. Even before the events leading to the end of her 

romantic relationship with the girl friend, the defendant 

harbored resentment toward the victim. According to the 

defendant, the victim prevented her from visiting a sick mutual

friend in the hospital, prior to that friend's death.

On the night before the victim's death, the defendant 

telephoned the victim and arranged to meet her the following 

morning. That night, the defendant wrote on her page on the Web 

site Facebook, "Tic toc, tic toc. I'm going to finish my book 

tomorrow. You're all going to be real interested in it because 

you're all in it. The title is Tormented Minds by Eunice 

Field." At around the same time, the defendant wrote a note, 

addressed to the former girl friend, which stated that the 

victim would "get what she deserves for coming between you and 

me,"

1 and that she had "snapped" because of her bipolar disorder.

 

1 The note stated:

"I love you with all my heart. I know you know that. 

I'm sorry for not giving you a better life. My heart aches 

for what I have done to you. But remember to always follow 

your heart. My mind is tired now, so I have to go. Your 

[sic] the best thing that ever happened to me. I will love 

you always for that, but something happened to me, with my 

bipolar and all, I snapped. Lorraine will get what she 

deserves for coming between you and me. I love you. . . 
4

The defendant traveled to the victim's apartment in 

Bridgewater on the morning of August 9, 2010, and killed the 

victim by stabbing her nine times with a knife in the neck, 

chest and back. After killing the victim, the defendant drove 

herself to the Brockton police station. When she arrived, she 

remained in her motor vehicle. Officers found the defendant, 

complaining of chest pain. As they helped the defendant out of 

her automobile, they saw that she was covered in blood. After 

being asked about the blood, the defendant stated that she had 

just killed someone.

The defendant was brought into the police station and 

seated on a bench in the lobby, where she repeated that she had 

killed someone, and when asked, gave the victim's name. She 

also provided the officers with the name of the apartment 

complex in which the victim lived. The defendant was taken to 

an interview room. She was read the Miranda rights, and she 

responded that she understood them and that she wished to waive 

them. Police conducted a videotaped interview in which the 

defendant made incriminating statements.

The defendant was then transported to the Bridgewater 

police station. After the standard booking procedure, she again 

waived her Miranda rights. The police conducted another

 

Eunice. P.S. Someday we will all know the real truth. 

P.S.S. [sic] . . . Tell Truth. 'Wasn't my pain real'? by 

Eunice Field."
5

videotaped interview, during which she made additional 

incriminating statements. The police searched the victim's 

apartment that afternoon. They found the victim's body near the 

doorway and bloodstains throughout the apartment.

The two videotaped interviews were introduced at trial. 

The Commonwealth also called an expert who testified that, in 

watching the interviews of the defendant, he saw no evidence of 

manic behavior, depression, delusions, or hallucinations, and 

stated that he believed that she was criminally responsible for 

her actions.

The defendant did not contest that she had killed the 

victim. Counsel argued essentially that the defendant's severe 

bipolar disorder prevented her from forming the requisite intent 

to commit murder in the first degree. Counsel did not consult a 

mental health expert but did cross-examine the Commonwealth's 

expert about the severity of the defendant's bipolar disorder.

In October, 2012, the defendant was convicted of murder in 

the first degree. While her direct appeal was pending in this 

court, the defendant filed a motion for a new trial, in which 

newly appointed counsel argued that trial counsel had been 

ineffective on the same grounds that she asserts in this appeal. 

After an evidentiary hearing at which a mental health expert 

testified for the defendant, the judge, who also had been the 

trial judge, denied the motion. He determined, in essence, that 
6

any errors committed by trial counsel did not affect the 

evidence that the defendant deliberately premeditated the 

murder. The defendant timely appealed, and the appeal was

consolidated with her direct appeal.

Discussion. "When this court reviews a defendant's appeal 

from the denial of a motion for a new trial in conjunction with 

his direct appeal from an underlying conviction of murder, we 

review both under G. L. c. 278, § 33E" (citation omitted).

Commonwealth v. Mercado, 466 Mass. 141, 145 (2013). The 

defendant's arguments on appeal stem from the ineffective 

assistance of counsel claims she made in her motion for a new 

trial.

In capital murder cases, we review ineffective assistance 

of counsel claims by first determining "whether the alleged 

lapse created a substantial likelihood of a miscarriage of 

justice, a standard more favorable to the defendant than the 

constitutional standard otherwise applied under Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974)" (quotations and citation 

omitted). Commonwealth v. Fulgiam, 477 Mass. 20, 29 (2017). We 

determine whether trial counsel erred and whether any such error 

was likely to influence the jury's conclusion. Id. Where an 

ineffective assistance of counsel claim is based on a tactical

or strategic decision, we find error only if the decision was 

manifestly unreasonable when made. See Commonwealth v. LaCava,
7

438 Mass. 708, 713 (2003). See also Commonwealth v. Kolenovic, 

471 Mass. 664, 674 (2015).

1. Failure to consult an expert and trial strategy. Faced 

with overwhelming evidence, including noncustodial admissions 

from the defendant,

2 counsel's goal from the beginning of the

trial was to obtain a verdict of murder in the second degree. 

The defendant claims that, had counsel consulted with a mental 

health expert at the time of trial, counsel would have been 

better able to mount a defense to the charge of murder in the 

first degree, by presenting evidence regarding her mental 

impairment at the time of the killing and by assisting him with 

the cross-examination of the Commonwealth's expert witness. 

Although we agree that trial counsel's decision not to consult 

with an expert was error, the defendant has not established that 

this failure was likely to have influenced the jury's verdict of 

murder with deliberate premeditation. See Commonwealth v.

Walker, 443 Mass. 213, 225 (2005).

Trial counsel apparently recognized, as evidenced by his ex 

parte motion for expert funds prior to trial, that the 

defendant's mental state was central to his strategy of 

 

2 Although, as discussed infra, the defendant asserts that 

her custodial statements made to both Brockton and Bridgewater 

police officers should have been suppressed, she does not 

contest the admissibility of her earlier noncustodial statements 

to the Brockton police, in which she admitted that she had 

killed the victim.
8

obtaining a verdict of murder in the second degree. Further, 

trial counsel knew that the defendant had claimed that she had 

run out of her prescription bipolar medication several days 

before the killing, and that in her handwritten note to her 

former girl friend, the defendant claimed that she had "snapped"

due to her bipolar disorder.

Although trial counsel's overarching strategy to avoid a 

conviction of murder in the first degree may have been the best 

available defense, it was apparent from facts known and 

available to counsel that the defendant's mental impairment

would be central to this defensive strategy. Nonetheless, trial 

counsel never consulted with an expert regarding the defendant's 

mental impairment at the time of the killing. Cf. Commonwealth

v. Roberio, 428 Mass. 278, 279-280 (1998), S.C., 440 Mass. 245 

(2003) (failure to investigate criminal responsibility defense 

manifestly unreasonable "if facts known to, or accessible to, 

trial counsel raised a reasonable doubt as to the defendant's 

mental condition" [citation omitted]). Contrast Commonwealth v. 

Bois, 476 Mass. 15, 23 (2016) (decision not to offer medical

records for mental health issue was not unreasonable when 

counsel had retained two experts to review records). In his 

testimony at the hearing on the motion for a new trial, trial 

counsel did not provide a tactical justification for his failure 

to consult an expert. See Commonwealth v. Alcide, 472 Mass. 
9

150, 167-168 (2015) ("This is not a case where arguably reasoned 

tactical or strategic judgments . . . are called into question 

. . . . Rather, . . . defense counsel did not investigate the 

only realistic defense . . . to the charge of murder in the 

first degree" [quotations and citation omitted]). Trial counsel 

stated only that he did not consult with an expert because he 

thought he understood the issues and he was skeptical that the 

defendant could have "underst[oo]d what was going on." 

Accordingly, we conclude trial counsel erred by failing at least

to consult with an expert regarding the defendant's mental 

impairment at the time she killed the victim.

Because of this conclusion, we now examine whether that

error was likely to have affected the jury's verdict of murder 

in the first degree. Walker, 443 Mass. at 225. In order to 

prevail on a motion for a new trial based on a claim of 

ineffective assistance, the defendant must establish that 

consulting with an expert would have enabled trial counsel to 

mount an effective defense based on her lack of capacity for 

murder in the first degree. See Kolenovic, 471 Mass. at 673

(defendant bears burden to prove ineffectiveness). Moreover, 

where a jury have returned a conviction of murder in the first 

degree based on more than one theory, the verdict remains even 

if only one theory is sustained on appeal. See Nolin, 448 Mass. 

at 220.
10

At the hearing on the motion for the new trial, the 

defendant's expert contested that the defendant's confession had 

been voluntary and that she had had the capacity to act with 

extreme atrocity or cruelty. He did not testify that the 

defendant lacked the capacity to deliberately premeditate. 

Indeed, the expert agreed that there was evidence to support the 

conclusion that the defendant had formulated a plan to kill the 

victim and had executed that plan.3 Contrast Roberio, 428 Mass. 

at 280-281 (at hearing on motion for new trial, defense expert 

testified that defendant was unable to conform conduct to law).

Therefore, even assuming that the expert would have assisted the 

defense argument that the defendant could not have committed the 

murder with extreme atrocity or cruelty, the record does not 

establish that the expert could have assisted trial counsel in 

either presenting a defense to, or more effectively crossexamining the Commonwealth's expert regarding, deliberate

premeditation. As the judge noted at the hearing on the motion 

for the new trial, there is no basis on which to conclude that 

consultation with the expert would have altered the jury’s 

 

3 We note also that the judge instructed the jury regarding

lack of criminal responsibility, even though the motion judge 

noted that the defendant had, at no time, demonstrated that lack 

of criminal responsibility was an available ground of defense. 

The defendant does not, however, argue on appeal that she was 

not criminally responsible. Nor did the defense expert so 

testify at the new trial motion hearing.
11

conviction of murder in the first degree based on deliberate 

premeditation.

2. Failure to suppress the two police interviews. The 

defendant argues that, had trial counsel consulted with an 

expert, he could have successfully suppressed both videorecorded 

police interviews for being involuntary, based on her state of 

mind. Without these recordings, the defendant contends, the 

jury would not have had a sufficient basis to find either 

premeditation or extreme atrocity or cruelty.

Trial counsel believed that allowing the jury to view the 

video recordings of both police interviews and to observe her 

strange behavior firsthand would increase the likelihood that 

the jury would find that the defendant had not premeditated the 

killing or acted with extreme atrocity or cruelty. Trial 

counsel's choice not to challenge the admissibility of the 

interviews, therefore, was a tactical decision that was not 

without justification.4 We do not, however, need to resolve 

whether counsel's judgment was manifestly unreasonable because 

even if we were to assume that it was, as discussed below, we 

cannot conclude on this record that the admission of the 

videorecorded interviews was likely to have affected the jury's 

 

4 Given the overwhelming evidence of guilt separate and 

distinct from the videorecorded interviews, it was reasonable to 

allow the jury to see the defendant's behavior for themselves, 

rather than having witnesses describe it in an antiseptic 

fashion.
12

verdict of murder by deliberate premeditation. See Fulgiam, 477 

Mass. at 29 (where defendant's ineffective claim is based on 

failure to move to suppress, defendant must show motion would 

have succeeded and that failure created substantial likelihood 

of miscarriage of justice).

a. The Brockton police interview. In the interview at the 

Brockton police station, the defendant made incriminating 

statements, including that she intended to kill the victim 

before she went to the victim's apartment and that she brought 

the murder weapon with her to the victim's apartment. The 

defendant contends that, without this evidence, the jury could 

not have convicted the defendant of murder in the first degree 

based on deliberate premeditation. We disagree.

The defendant's expert testified at the hearing on the 

motion for a new trial that the defendant exhibited some strange 

behaviors during the interview, such as slurred speech, requests 

for questions to be repeated, and long pauses between words when 

answering questions. The expert further testified that the 

defendant may have been experiencing auditory hallucinations.

Based on these behaviors, the expert stated his opinion that the 

defendant was not capable of voluntarily making these statements 

or waiving her Miranda rights.

Even if we assume, however, that the Brockton interview was 

involuntary and should have been suppressed, there was still
13

compelling evidence of premeditation. Most significantly, the 

defendant had written a note in which she said the victim would 

get what "she deserves" for interfering with the defendant's 

relationship with her girl friend. Additionally, the defendant 

telephoned the victim the night before the killing to arrange 

the meeting -- the same night that the defendant wrote a 

Facebook post that, although not directly alluding to the victim 

or a plot for murder, allowed the jury to conclude that the 

defendant was preparing to take some sort of drastic action the 

following day. Finally, the defendant harbored ill feelings 

toward the victim for at least several years before the killing,

and had arranged to meet the victim that morning.

b. The Bridgewater police interview. The defendant argues 

that the second recorded interview formed the evidentiary basis 

that allowed the jury to conclude that the defendant had acted 

with extreme atrocity or cruelty. The defendant asserts that 

the interview could have been suppressed based on either a lack 

of voluntariness due to her mental state or the defendant's 

assertion that she wanted to stop answering questions until she 

received food and a cigarette. See Commonwealth v. Howard, 469 

Mass. 721, 735 (2014) (when defendant decides to stop answering 

questions, that decision must be "scrupulously honored"

[citation omitted]).
14

Many of the incriminating statements from the second 

interview supported the Commonwealth's theory of extreme 

atrocity or cruelty, providing evidence of conscious suffering 

by the victim and the defendant's indifferent attitude towards 

that suffering. See Commonwealth v. Cunneen, 389 Mass. 216, 227 

(1983). For example, the defendant told police that the victim

had repeatedly asked her "why?" during the attack, and that, 

after the stabbing, she lay down on the floor with the victim, 

looked into her eyes, and told her she was "feisty" and needed 

to mind her own business. The defendant also stated that she 

felt good about what she had done.

Even assuming, however, that the Bridgewater interview 

formed the sole basis of the jury's finding as to extreme 

atrocity or cruelty and that the interview should have been 

excluded, the defendant's conviction of murder in the first 

degree would still stand, based on the compelling evidence of 

deliberate premeditation. Accordingly, even if the defendant 

were to have prevailed on a motion to suppress, the evidence of 

deliberate premeditation from other sources (such as her 

confessional note, her social media post, and her arranging the 

meeting with the victim) was so overwhelming that we cannot say 

admission of the video recording was likely to have influenced

the jury's decision to convict her on the theory of 

premeditation. Wright, 411 Mass. at 682.
15

3. Defendant's competency to stand trial. Finally, the 

defendant argues that trial counsel was ineffective for failing 

to consult an expert to ascertain her competency to stand trial. 

Such an inquiry is appropriate where there is a "substantial 

question of possible doubt" regarding the defendant's competency

(citation omitted). Commonwealth v. Companonio, 445 Mass. 39, 

48-49 (2005), S.C., 472 Mass. 1004 (2015). Although the 

Commonwealth bears a burden to demonstrate a defendant's 

competency when the issue is raised before trial, Commonwealth

v. Crowley, 393 Mass. 393, 400 (1984), the defendant bears the 

burden to demonstrate ineffectiveness when seeking a new trial. 

See Kolenovic, 471 Mass. at 673. The defendant has not met that 

burden.

The defendant has presented no evidence, beyond trial 

counsel's statement that he was not sure that the defendant 

understood the mental impairment defense, that the defendant was 

incompetent to stand trial. As noted by the trial judge, there 

was no testimony that the defendant lacked the ability to 

consult with a reasonable degree of understanding. Although the 

defendant argues on appeal that consulting with an expert may 

have helped trial counsel realize that the defendant lacked that 

ability, the defendant presented no evidence to support such a

conclusion. The defendant's expert did not testify at the 

hearing on the motion for a new trial that the defendant was 
16

incompetent to stand trial. Accordingly, we are unable to say, 

on this record, that the defendant has raised a substantial 

doubt as to her competency to stand trial. See Companonio, 445 

Mass. at 48-49.

Conclusion. We have reviewed the entire pursuant to our 

obligation under G. L. c. 278, § 33E. Although counsel 

unreasonably failed to consult with a mental health expert for 

trial, we conclude that the defendant has failed to establish 

that such a consultation would have provided a basis to 

challenge the Commonwealth's theory of premeditated murder. 

Because we conclude that, even if the interviews should have 

been excluded and even if the second interview formed the sole 

basis for the jury's finding of extreme atrocity, there was 

ample evidence of premeditation independent of the interviews,

the conviction of murder in the first degree stands. 

Accordingly, neither trial counsel's shortcomings nor the 

interests of justice require entry of a lesser degree of guilt 

or a new trial. The defendant's conviction and the order 

denying the defendant's motion for a new trial are affirmed.

So ordered.