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SJC-10405

COMMONWEALTH vs. FRANCIS LANG.

Suffolk. November 7, 2014. - October 1, 2015.

Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.

Homicide. Constitutional Law, Public trial, Jury, Waiver of 

constitutional rights, Assistance of counsel. Jury and 

Jurors. Practice, Criminal, Capital case, Empanelment of 

jury, Public trial, Waiver, Instructions to jury, 

Assistance of counsel. Mental Impairment.

Indictment found and returned in the Superior Court 

Department on May 11, 2005.

The case was tried before Stephen E. Neel, J., and one 

issue raised in a motion for a new trial, filed on May 6, 2009, 

was heard by him; the remaining issue raised in that motion for 

a new trial was heard by Patrick F. Brady, J., and a motion for 

reconsideration was considered by him.

Ruth Greenberg for the defendant.

John P. Zanini, Assistant District Attorney (Edmond J. 

Zabin, Assistant District Attorney, with him) for the 

Commonwealth.

Leslie W. O'Brien, for Richard M. Boucher, Jr., amicus 

curiae, submitted a brief.

 



This opinion, which was originally released on August 4, 

2015, was temporarily withdrawn by the court and has been 

republished -- Reporter.
2

BY THE COURT. The defendant was convicted in 2006 of 

murder in the first degree on the theory of extreme atrocity or 

cruelty. While his direct appeal was pending here, he moved for 

a new trial on two grounds: first, he claimed that the court 

room was improperly closed to the public during the jury

selection phase of the case; second, he claimed that his trial 

counsel was ineffective in failing to investigate his mental

history, thereby depriving him of, among other things, an 

opportunity to make an informed decision whether to pursue a 

defense of lack of criminal responsibility. We transferred the 

motion for a new trial to the Superior Court and stayed the 

direct appeal pending a ruling on the motion. After two 

separate evidentiary hearings, one on each of the issues raised 

in the motion, the motion for a new trial was denied.1

We now have before us the defendant's direct appeal and his 

appeal from the denial of his motion for a new trial. In 

addition to pressing the public trial and ineffective assistance

of counsel claims raised in his motion, the defendant also 

challenges the judge's charge to the jury, claiming that it was 

 

1 By agreement of the parties, the two issues raised in the 

motion for a new trial were considered separately. The trial 

judge heard and decided the portion of the motion raising the 

public trial issue. Subsequently, and after the trial judge had 

retired, another judge of the Superior Court heard and decided 

the portion of the motion raising the ineffective assistance of 

counsel claim.
3

error to instruct the jury that they could find malice for 

purposes of murder in the first degree on the theory of extreme 

atrocity or cruelty based on the so-called second or third prong 

of malice, and, further, that the third prong of malice is 

essentially indistinguishable from the mens rea needed for a 

conviction of involuntary manslaughter.

All five Justices on the quorum agree that the judgment of 

conviction and the orders denying the motion for a new trial are 

to be affirmed. With respect to the public trial and jury 

instruction issues, the Justices unanimously reject the 

defendant's claims for the reasons set forth in parts 2.a and 

2.b of Justice Hines's concurring opinion, post at - 

(Hines, J., concurring). With respect to the claim that counsel 

was ineffective in failing to investigate the defendant's mental 

history, the Justices unanimously agree that the defendant is 

not entitled to relief on that basis, but they reach this 

conclusion for differing reasons. Two Justices -- Justice Hines 

and Justice Duffly -- conclude that the failure to investigate 

did not create a substantial likelihood of a miscarriage of 

justice in the circumstances of this case because, "even 

assuming the availability of a viable lack of criminal 

responsibility defense, counsel's strategic choice to defend the 

case solely on a self-defense theory was not manifestly 

unreasonable." Id. at . The other three Justices on the 
4

quorum -- Justice Lenk, joined by Chief Justice Gants and 

Justice Cordy -- conclude that the failure to investigate did 

not create a substantial likelihood of a miscarriage of justice 

because the defendant "offered no evidence indicating that he 

would have agreed to present a lack of criminal responsibility 

defense at the time of the original trial, and has clearly 

asserted that he would not present the defense at a new trial," 

and because "the absence of any evidence indicating his 

willingness to present the defense prevents him from 

establishing prejudice as a result of counsel's failure to 

investigate such a defense." Post at (Lenk, J., 

concurring). These Justices are also of the view that, "[e]ven 

if the defendant had agreed to present a lack of criminal 

responsibility defense . . . [it is questionable] whether [it]

would have been a substantial defense and . . . [there is] no 

reasonable basis for thinking the outcome at trial likely would 

have been different." Id. at .

Finally, after review of the entire record pursuant to 

G. L. c. 278, § 33E, the Justices agree unanimously that there 

is no other basis for granting the defendant relief.

Judgment affirmed.

Orders denying motion for

 a new trial affirmed.
HINES, J. (concurring, with whom Duffly, J., joins). 1. 

Background. The jury could have found the following facts. 

Shortly before midnight on March 18, 2005, the defendant, 

Francis Lang, with a can of beer in hand, entered a bar in the 

Charlestown section of Boston. Because of an incident several 

years prior, the defendant had been banned from the bar by the 

bartender who was on duty when the defendant arrived. The 

bartender and his sister, a waitress at the bar, were the only 

employees working that night.

The defendant approached the bartender and asked for a 

beer. The bartender reminded the defendant that he was not 

welcome at the establishment.1 The defendant protested, stating 

that a long time had passed and he was a "different person." 

The bartender repeated that the defendant was not welcome. 

Growing upset, the defendant told the bartender that he had 

better contact the police and "have them take me out because I 

am not leaving." As the bartender headed over to a telephone 

behind the bar, the defendant started yelling obscenities.

The bartender's sister, her boy friend, and the victim, 

Richard T. Dever,2 went over to the defendant. The defendant 

apologized to the bartender's sister. Someone asked the 

 

1 The defendant had an odor of alcohol on his breath and was 

slurring his words.

2 The victim was at the bar with the bartender's sister's 

boy friend; they were friends.
2

defendant to leave and tried to usher him to the front door. 

Although he started to comply with their requests to leave, the 

defendant threw his beer can, smashing a glass object at the 

bar, and said, "Fuck you," to the bartender.

Accounts by patrons inside the bar varied as to what next 

ensued, but there was evidence that a scuffle occurred in the 

small foyer at the entrance of the bar involving the defendant 

and the victim, and possibly others. One witness testified that 

the victim threw punches at the defendant. The scuffle moved 

outside onto the sidewalk in front of the bar. There, the 

defendant and the victim exchanged punches. The defendant took 

out a pocket knife and stabbed the victim several times, 

stating, "How do you like that, motherfucker?" and, "How's your 

motherfucking pretty face now?" The defendant "gave the finger" 

and left. Minutes later, he returned to the bar briefly, 

yelling and looking for his glasses. He then fled the scene. 

Several hours later, the police found the defendant hiding in a 

basement apartment at a home in the area and arrested him.

After the altercation, the victim, with the assistance of 

his friend, returned inside the bar. The victim had blood all 

over his face from a gash inflicted during the stabbing. His 

shirt was torn open revealing blood on his chest. After 

stopping briefly at the back of the bar to sit down, the victim 

was brought to a room out of sight behind the bar. Someone 
3

screamed, "Call an ambulance." The bartender made the call, and 

police officers and paramedics arrived within minutes. They 

found the victim covered in blood and gasping for air. 

Paramedics transported the victim to a nearby hospital where he 

was pronounced dead in the early morning hours of the following 

day.

The victim died as a result of multiple stab wounds. He 

suffered three stab wounds to the left side of his chest, one of 

which perforated his heart, and one stab wound under his arm. 

Also, as a result of the attack, the victim had three incised 

wounds on his face, one of which exposed bone.3

The defendant did not testify. He called one witness, a 

patron at the bar. The patron stated that before the stabbing, 

the defendant had been physically attacked by four people. 

Based on this witness's testimony, the defendant's trial counsel 

argued that the defendant had acted in self-defense. 

 

3 We have noted the distinction between stab and incised 

wounds in prior murder cases. See, e.g., Commonwealth v. 

Vacher, 469 Mass. 425, 427 n.3 (2014); Commonwealth v. Chambers, 

465 Mass. 520, 524 (2013); Commonwealth v. Vasquez, 462 Mass. 

827, 832 (2012). As understood in the forensic pathology 

community, "a stab wound is a wound from a cutting instrument 

that is deeper than [its surface length], whereas an incised 

wound . . . is a sharp force injury where the length on the 

surface is longer than the depth." Commonwealth v. Phillips, 

452 Mass. 617, 622 (2008). The medical examiner in this case 

testified consistent with this understanding: "an incised 

injury is more of a long cut on the skin; a stabbing injury is 

usually smaller on the skin surface where the sharp instrument 

is pushed in."
4

Alternatively, the defendant's trial counsel asserted that 

mitigating circumstances rendered the killing nothing more than 

voluntary manslaughter.

In addition to instructing the jury on murder in the first 

degree, the judge instructed on murder in the second degree and 

on voluntary manslaughter based on excessive force in selfdefense, heat of passion on reasonable provocation, and heat of 

passion induced by sudden combat. He also instructed on selfdefense and on the effect of a defendant's alcohol intoxication 

on intent.

2. Discussion. a. Public trial. In 2009, the defendant 

moved for a new trial,4 claiming a violation of his right to a 

public trial under the Sixth and Fourteenth Amendments to the 

United States Constitution when court officers excluded the 

public and his family from the court room during jury 

empanelment. The trial judge conducted an evidentiary hearing 

on the motion and issued written findings of fact summarized as 

follows.

Jury empanelment in the case took place during the course 

of two days. At the time of the defendant's trial in 2006, the 

generally accepted practice at the Suffolk County Court House in 

circumstances where the venire likely would require all 

 

4 The defendant's counsel on appeal, who also represented 

him on the motion for a new trial, was not his trial counsel.
5

available seats was for a court officer to instruct the public 

to leave until seats became available. If a family member or an 

interested citizen requested permission to remain in the court 

room during jury empanelment, a court officer would bring the 

request to the attention of the presiding judge, whose practice 

was to hear the request and to attempt to accommodate the 

individual. No such requests were brought to the judge's 

attention in this case.

On the first day of jury empanelment, the court room, 

initially, was filled to capacity with prospective jurors. As 

the empanelment proceeded that day, seats became available for 

persons other than prospective jurors. The day concluded at 

4:30 P.M. On the second day, there may have been extra seats in 

the court room from the outset, and certainly were at some point 

that morning before jury empanelment was completed at 12:30 P.M.

Before commencing jury empanelment on the first day, the 

court officer in charge of the prospective jurors instructed the 

defendant's sister and her party5 to leave the court room because 

 

5 The defendant's sister stated that her mother and boy 

friend were with her that day. The defendant's mother submitted 

an affidavit in conjunction with the motion for a new trial, but 

did not testify at the evidentiary hearing in support of the 

motion. The judge expressly discredited the entirety of the 

defendant's mother's affidavit. The judge, however, found that 

the defendant's sister and one other person, either the 

defendant's sister's boy friend or mother, had been present at 

the court room on the first morning of jury empanelment.
6

the seats were needed for prospective jurors.6 The defendant's 

sister asked if they could remain because they "were a little 

afraid of the other people waiting outside." The court officer 

responded that they had to leave so there would be room for the 

prospective jurors.

The defendant's sister and her party left the court room 

and sat on a bench in a hallway. They remained there for the 

rest of jury empanelment, and at no time did the defendant's 

sister return to the court room to see whether seats had become 

available or to ask any of the three attending court officers 

whether seats had opened up.7

During jury empanelment, none of the three court officers 

told anyone that the court room was "closed." They did not lock 

the doors to the court room, and they did not post a sign or 

officer at the doors to the court room to prevent anyone from 

entering.

During trial, the defendant was represented by experienced 

counsel. The defendant's trial counsel was aware of the 

defendant's right to a public trial. Defense counsel, however, 

did not object to what he believed to be the "acceptable common 

 

6 There was no evidence that any other members of the public 

also were inside the court room.

7 The judge found that the defendant's sister had discussed 

with the defendant during trial the fact that she had been asked 

to leave the court room before the prospective jurors were 

escorted in.
7

practice" of excluding the public during jury empanelment when 

the court room was filled with prospective jurors with no room 

remaining for the public. Although he had no specific memory in 

the defendant's case (except that there were more prospective 

jurors in the court room than seats available), the defendant's 

trial counsel often would tell members of a defendant's family 

that empanelment may be boring.

The judge concluded that the defendant had not satisfied 

his burden of showing that, during the jury selection process, 

the court room was closed in any but a trivial or de minimis 

way. He also determined that even if the court room were found 

to have been partially closed, the record established that the 

closure was not unconstitutional. There was no error.

The Sixth Amendment guarantees all criminal defendants "the 

right to a speedy and public trial." See Waller v. Georgia, 467 

U.S. 39, 46 (1984). In limited circumstances, a judge may bar 

spectators from portions of a criminal trial. Commonwealth v. 

Martin, 417 Mass. 187, 194 (1994). To do so, however, a judge 

must make a case-specific determination that closure is 

necessary, satisfying four requirements: "[1] the party seeking 

to close the hearing must advance an overriding interest that is 

likely to be prejudiced, [2] the closure must be no broader than 

necessary to protect that interest, [3] the trial court must 

consider reasonable alternatives to closing the proceeding, and 
8

[4] it must make findings adequate to support the closure." 

Id., quoting Waller, supra at 48.

"The right to a public trial extends to the jury selection 

process." Commonwealth v. Morganti, 467 Mass. 96, 101, cert. 

denied, 135 S. Ct. 356 (2014), and cases cited. "Conducting 

jury selection in open court permits members of the public to 

observe trial proceedings and promotes fairness in the judicial 

system." Commonwealth v. Lavoie, 464 Mass. 83, 86, cert. 

denied, 133 S. Ct. 2356 (2013). Where closure during jury 

empanelment occurs over a defendant's objection, the 

requirements set forth in Waller, supra, must be satisfied to 

avoid violating a defendant's right to a public trial. 

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 95, 107 (2010).

"It is well settled that the violation of a defendant's 

right to a public trial is structural error requiring reversal." 

Commonwealth v. Wall, 469 Mass. 652, 672 (2014). "However, even 

structural error 'is subject to the doctrine of waiver.'" Id., 

supra, quoting Commonwealth v. Cohen (No. 1), 456 Mass. at 106. 

"A defendant need not consent personally to the waiver of his 

right to a public trial; trial counsel may waive the right to a 

public trial as a tactical decision without the defendant's 

express consent." Commonwealth v. Wall, supra, citing 

Commonwealth v. Lavoie, 464 Mass. at 88-89. "Further, the right 

to a public trial may be procedurally waived whenever a litigant 
9

fails to make a timely objection to an error." Commonwealth v. 

Wall, supra, citing Commonwealth v. Morganti, 467 Mass. at 102. 

"A procedural waiver may occur where the failure to object is 

inadvertent." Commonwealth v. Wall, supra at 672-673, citing 

Commonwealth v. Morganti, supra.

Our recent cases concerning waiver apply here. As in 

Commonwealth v. Alebord, 467 Mass. 106, 108, 113, cert. denied, 

134 S. Ct. 2830 (2014), the defendant here waived his right to a 

public trial "where his experienced trial counsel was aware that 

the court room was routinely closed to spectators during the 

jury empanelment process and did not object" at trial to the 

partial closure. The defendant did not need to consent to the 

waiver itself; his counsel could effectuate the waiver and did. 

See Commonwealth v. Morganti, 467 Mass. at 102. Nor was his 

trial counsel, in the circumstances, ineffective for failing to 

object to the closure. See Commonwealth v. Alebord, supra at 

114; Commonwealth v. Morganti, supra at 104-105.

b. Jury instructions. The defendant argues error in the 

judge's instructions on extreme atrocity or cruelty based on 

second and third prong malice.8 To prove malice required for a 

murder committed on a theory of extreme atrocity or cruelty, 

 

8 The Commonwealth also proceeded against the defendant on 

the theory of deliberate premeditation, but the jury did not 

find him guilty on that theory.
10

"the Commonwealth must prove one of three prongs: (1) intent to 

kill the victim; (2) intent to cause grievous bodily harm to the 

victim; or (3) commission of an act that, in the circumstances 

known to the defendant, a reasonable person would have known 

created a plain and strong likelihood of death." Commonwealth

v. Riley, 467 Mass. 799, 821-822 (2014). See Commonwealth v. 

Grey, 399 Mass. 469, 470 n.1 (1987). Specifically, the 

defendant, relying on the concurring opinion in Commonwealth v. 

Riley, supra, argues that we should alter our definition of 

malice by abrogating second or third prong malice because those 

prongs do not require an intent to kill.9,10 We decline the 

invitation to do so here. The judge's instructions to the jury 

in this case were in accord with our common law of murder and 

followed our Model Jury Instructions on Homicide 12 (1999), 

which applied at the time of trial.

 

9 The defendant objected to the charge below on these 

grounds, so the issue is preserved.

10 The concurrence suggested that, "before a conviction of 

murder may be elevated to murder in the first degree based on 

extreme atrocity or cruelty," Commonwealth v. Riley, 467 Mass. 

799, 829 (2014) (Duffly, J., concurring), a jury should be 

required to find that "the defendant either intended to cause an 

extremely atrocious or cruel death or was indifferent to such a 

result." Id. The facts in Riley, however, took into account 

that "the jury apparently did not conclude that [the defendant] 

either intended to kill his daughter or to cause her grievous 

bodily harm." Id. at 828. The same cannot be said here.
11

We also reject the defendant's argument that third prong 

malice has "the same state of mind required for conviction of 

involuntary manslaughter," and that consequently his life 

sentence is a "disproportionate punishment." We have explained:

"The difference between the elements of the third 

prong of malice and wanton and reckless conduct amounting 

to involuntary manslaughter lies in the degree of risk of 

physical harm that a reasonable person would recognize was 

created by particular conduct, based on what the defendant 

knew. The risk for the purposes of third prong malice is 

that there was a plain and strong likelihood of death. 

. . . The risk that will satisfy the standard for wilful 

and wanton conduct amounting to involuntary manslaughter 

'involves a high degree of likelihood that substantial harm 

will result to another.'"

Commonwealth v. Vizcarrondo, 427 Mass. 392, 396 (1998), quoting 

Commonwealth v. Sires, 413 Mass. 292, 303-304 n.14 (1992). The 

standards are not synonymous.

c. Ineffective assistance of counsel. The defendant 

argues that the motion judge11 erroneously denied his motion for 

a new trial based on his trial counsel's failure to investigate 

and pursue a defense of lack of criminal responsibility under 

the standards set forth in Commonwealth v. McHoul, 352 Mass. 

544, 546-547 (1967). There was no error in the judge's ruling 

on the motion, although, as explained below, I would affirm on 

grounds different from those stated by the judge.

 

11 Because the trial judge had retired, a different judge 

heard and decided the ineffective assistance of counsel issue. 

See ante at note 1.
12

In a written memorandum of decision and order, issued after 

an evidentiary hearing, the judge made the following findings of 

fact.12 Twenty-two days before the victim was killed, the 

defendant had been released from Federal prison, where he had 

been serving time for a conviction of being a felon in 

possession of ammunition. Before the killing, the defendant had 

spent much of his adult life in prison.

The defendant's trial counsel is a very able, experienced, 

and highly regarded defense attorney. He has practiced criminal 

law since he was admitted to the bar in 1975 and has represented 

defendants in approximately fifty to one hundred murder cases. 

He was appointed by the court to represent the defendant in this 

case.

When the defendant's trial counsel met with the defendant 

about his case, the defendant informed him that he had a 

psychiatric history. Predecessor counsel had filed a motion for 

a motion for funds to screen the defendant for mental illness, 

but had not pursued it. Although the defendant mentioned his 

psychiatric history to his trial counsel, the defendant did not 

express any particular interest in pursuing a mental health 

 

12 The judge based his findings on the testimony of the 

defendant's trial counsel; the defendant's retained 

psychologist, Dr. Paul Spiers; and a psychologist retained by 

the Commonwealth, Dr. Tali K. Walters.
13

defense at trial.13 The defendant's explanation to his trial 

counsel concerning his conduct at the time of the killing was 

that he was attacked by several patrons of the bar and was 

defending himself. His trial counsel believed that this defense 

was viable in that it was supported by at least one independent 

witness. At trial, the defendant's claim of self-defense was 

supported by the testimony of one patron from the bar.

The defendant's trial counsel did not review the 

defendant's psychiatric history, consult with a mental health 

expert, or discuss the possibility of a defense of lack of 

criminal responsibility with the defendant, although defense 

counsel was familiar with this defense and had utilized it 

previously on behalf of other clients. The defendant's trial 

counsel held a firm belief that this defense was rarely 

successful and should be raised only as a last resort and where 

no other viable defenses exist. In his view, the inherent 

difficulty of a lack of criminal responsibility defense, coupled 

with the availability of a viable defense of self-defense, 

obviated the necessity of any action on the issue of the 

defendant's criminal responsibility.

 

13 The judge found that the defendant, in his posttrial 

interview with the Commonwealth's expert, stated his opposition 

to any suggestion of pursuing a lack of criminal responsibility 

defense.
14

To support the defendant's motion for a new trial, Dr. Paul 

A. Spiers, a neuropsychologist, examined the defendant and 

prepared an affidavit. Dr. Spiers met with the defendant, 

performed tests, and reviewed the defendant's psychiatric 

history. In Dr. Spiers's opinion, the defendant was not 

criminally responsible for killing the victim because, at the 

time of the stabbing, the defendant did not appreciate the 

wrongfulness of his conduct and could not conform his conduct to 

the requirements of the law. In reaching his opinion, Dr. 

Spiers explained that the defendant suffered from a variety of 

mental disorders, including attention deficit hyperactivity 

disorder, learning disabilities, anxiety, seizure disorder, 

opposition-defiant disorder, bipolar disorder, and frontal 

network dysfunction.14 In 2001, while being evaluated in Federal 

prison for competency to stand trial, the defendant was 

diagnosed with bipolar disorder, and since then has been 

prescribed numerous medications for that condition, and for his 

anxiety and seizure disorder. On a number of occasions, mental 

health professionals who examined him in prison described the 

defendant's behavior as impulsive and noted that he was not able 

 

14 Testing revealed that the defendant had an intelligence 

quotient (IQ) in an extremely low and defective range. The 

expert testimony was that the defendant's IQ was the equivalent 

of a person whom experts in the field previously labeled as 

"mentally retarded."
15

to control his behavior. When Dr. Spiers interviewed him, the 

defendant insisted, as he had to his trial counsel and to the 

Commonwealth's expert, that he had acted in self-defense. There 

is no evidence that the defendant ever suffered from visual or 

auditory hallucinations or thought disorder.

The Commonwealth's expert, Dr. Tali K. Walters, a forensic 

psychologist, conducted a three-hour interview of the defendant 

on September 16, 2011, and reviewed all of his psychiatric 

records and relevant portions of the case investigation file. 

Based on her examination and review of the records mentioned 

above, she opined that the defendant was criminally responsible 

for his actions at the time of the killing. She based her 

opinion on a number of factors, including that there appeared to 

be no evidence in the twenty-two days before the crime, after 

the defendant's release from Federal prison, of him suffering 

from any symptoms of mental illness. The defendant had not 

taken his medications with him from the prison, and had been 

without them for the duration preceding the crime, but Dr. 

Walters explained that the return of symptoms "takes weeks to 

months, sometimes years." Dr. Walters added that, in the 

defendant's case, it did not appear that his symptoms had 

returned prior to the murder. Nor, according to Dr. Walters, 

did the defendant experience symptoms of bipolar disorder or any 
16

other mental illness during the first seven months following his 

arrest and incarceration for the victim's murder.

Applying the standard set forth in Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974), the judge denied the 

defendant's motion. In doing so, he rejected the defendant's 

contention that defense counsel is obligated to investigate a 

defense of lack of criminal responsibility "in all cases in 

which a defendant may have a psychiatric background." The judge 

concluded that defense counsel's opinion that such a defense is 

one of last resort to be used where no other viable defense 

exists was not unreasonable, as it is a view "shared by other 

criminal defense attorneys." The judge concluded as well that 

counsel ably represented the defendant in presenting a viable 

defense, self-defense. The judge drew on his experience as a 

trial judge in murder cases, noting in his decision that 

"insanity verdicts are rare, even when . . . there is strong 

evidence of mental illness or bizarre human conduct," 

Commonwealth v. Walker, 443 Mass. 213, 226 n.2 (2005). Last, 

the judge determined that presenting a defense of lack of 

criminal responsibility would have undermined or been 

inconsistent with self-defense and would not have accomplished 

anything material for the defendant, who had made it clear in 

postconviction interviews that he did not want to use such a 

defense in the event he was granted a new trial.
17

In reviewing claims of ineffective assistance of counsel in 

a defendant's appeal of a conviction of murder in the first 

degree, we "determine whether there exists a substantial 

likelihood of a miscarriage of justice, as required under G. L. 

c. 278, § 33E, which is more favorable to the defendant than is 

the general constitutional standard for determining ineffective 

assistance of counsel." Commonwealth v. Frank, 433 Mass. 185, 

187 (2001). See Commonwealth v. Wright, 411 Mass. 678, 682 

(1992). The inquiry is "whether there was an error in the 

course of trial (by defense counsel, the prosecutor, or the 

judge), and, if there was, whether that error was likely to have 

influenced the jury's conclusion." Id. "Under this more 

favorable standard of review, we consider a defendant's claim 

even if the action by trial counsel does not 'constitute conduct 

falling "measurably below" that of an "ordinary fallible 

lawyer."'" Commonwealth v. Williams, 453 Mass. 203, 205 (2009), 

quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

In this case, defense counsel made a strategic decision, 

without investigation or discussion with the defendant, not to 

pursue or to investigate a defense of lack of criminal 

responsibility (or other psychiatric defense). This decision 

was based on his knowledge of the extreme rarity of verdicts of 

not guilty by reason of insanity, and on his significant 

experience in the trial of murder cases that pursuing and 
18

focusing on any other viable defense is the better course of 

action.15 Where, as here, the defendant's ineffective assistance 

claim is based on a tactical or strategic decision, the test is 

whether the decision was "manifestly unreasonable" when made. 

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting 

Commonwealth v. Adams, 374 Mass. 722, 728 (1978). "[S]trategic 

choices made after less than complete investigation are 

reasonable [only] to the extent that reasonable professional 

judgments support the limitation on investigation." 

Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting 

 

15 At the evidentiary hearing on the motion, the defendant's 

trial counsel explained:

"I think it's difficult to defend on a series of 

fallback position[s], you know, my [client] didn't do it. 

If he did, it was self-defense. If you don't buy that, he 

was crazy. I think you dilute your chances of winning if 

you throw up a series of defenses. . . . It depends on the 

specifics of [each] case and what my goal is in the case, 

what I think is realistic. I think you try cases -- there 

are two different kinds of cases to be tried. One where 

you actually think you have a chance of winning, and one 

where you don't believe you actually have a chance of 

winning. And I think your strategic behavior is different 

in those two situations, and I would be much more likely to 

throw in the kitchen sink, so to speak, if I thought there 

was no chance of winning period. . . . [I]f you think that 

you really do have a chance of winning, then you want to 

maximize that chance by not throwing in the kitchen sink, 

by focusing on what is . . . really at issue and not having 

a strategy that goes in two different directions."

The defendant's trial counsel testified that he believed that in 

this case, the defense of self-defense was a potentially winning 

argument.
19

Strickland v. Washington, 466 U.S. 668, 690-691 (1984). I 

conclude that the standard for constitutionally effective 

assistance of counsel is not met where defense counsel, as a 

matter of practice, declines to investigate or otherwise 

consider the defendant's mental condition in circumstances where 

an alternative viable defense is available. Regardless of the 

strategic choice of a defense, counsel must engage in a rational 

calculation of the need for and scope of an evaluation of the 

defendant's mental condition.

We previously have held that the "[f]ailure to investigate 

an insanity defense falls below the level of competence" 

demanded of an attorney "if facts known to, or accessible to, 

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

mental condition." Commonwealth v. Roberio, 428 Mass. 278, 279-

280 (1998), quoting Commonwealth v. Doucette, 391 Mass. 443, 

458-459 (1984). Here, it is undisputed that the defendant had a 

psychiatric history and that defense counsel was aware of that 

history. The defendant revealed to defense counsel some aspects 

of his psychiatric history, which counsel described as 

"significant." In addition, defense counsel was aware that 

predecessor counsel had sought funds for a social worker to 

develop a "social history [of the defendant] and screen for 

mental illness." This information was sufficient to trigger an 

obligation to at least consider an investigation of the 
20

defendant's mental condition. Here, however, counsel 

acknowledged a failure even to consider an investigation, 

explaining that he categorically rejects a lack of criminal 

responsibility defense, regardless of its merits, if any other 

defense is available.16 The failure to do so, given the 

available information suggesting that the defendant had a 

substantial psychiatric history, did not meet this standard.

I do not believe that counsel is obligated to pursue a full 

scale mental evaluation in every case where the facts or the 

defendant's background suggest only a hint of a mental issue. I 

conclude, however, that where counsel is aware of information 

that may call into question the defendant's criminal 

responsibility, he must first make a reasoned choice whether 

further investigation is warranted. In this regard, I emphasize 

the distinction between the facts of this case and Commonwealth

v. Kolenovic, 471 Mass. 664 (2015), where we declined to impose 

on counsel a duty to investigate further the defendant's mental 

condition. In Kolenovic, supra at 669-670, 678, counsel 

arranged a preliminary psychiatric evaluation, but made an 

informed strategic decision not to pursue the matter further.

 

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

testified as follows: "I remember [that the defendant] 

mentioned [that] he had a significant psychiatric history [but] 

I was not that interested in a psychiatric defense. And so, I 

wasn't pressing him and asking for details and engaging him in 

that conversation."
21

Counsel's failure in this case to take any steps to inform 

himself of the defendant's mental condition rendered this aspect 

of his representation ineffective.

As the defendant implicitly recognizes, a claim of 

ineffective assistance of counsel that focuses on counsel's 

asserted failure to investigate a lack of criminal 

responsibility defense is generally, and perhaps necessarily, 

linked to a claim that counsel was ineffective for not 

presenting a lack of criminal responsibility defense at trial. 

Thus, here, the defendant's ineffective assistance claim joins 

the two: although he emphasizes counsel's failure to 

investigate his mental condition, he also claims that counsel's 

failure to present a "mental impairment" defense was deficient. 

A defense attorney's duty in this respect is to exercise a 

reasonable judgment in making the ultimate choice of the defense 

to be presented at the trial, taking into account the array of 

potentially viable defenses.

In my analysis of this issue, I assume, as the defendant 

argues, that Dr. Paul Spiers's expert opinion would have been 

available to counsel, if he had appropriately undertaken some 

investigation of the defendant's mental health history before 

trial. The question then posed is whether, after failing to 

investigate a lack of criminal responsibility or mental 

impairment defense, counsel's decision not to present an
22

available defense on that basis also was ineffective. Based on 

this record, I am persuaded that, even assuming the availability 

of a viable lack of criminal responsibility defense, counsel's 

strategic choice to defend the case solely on a self-defense 

theory was not manifestly unreasonable.17

This was not a case where defense counsel's strategic 

decision left the defendant without any defense at all, 

Commonwealth v. Haggerty, 400 Mass. 437, 441-442 (1987), and 

there is no suggestion in the record or by appellate counsel in 

argument that the alternative self-defense theory was not 

supported by the facts or that it was not presented competently 

by counsel. In the absence of any record support for a 

conclusion that counsel irrationally pursued a defense that 

lacked viability, I would not disturb an otherwise reasonable 

strategic choice. It was eminently reasonable to consider, 

regardless of the possibility of a favorable expert opinion that 

the defendant lacked criminal responsibility, the inherent 

difficulty in persuading a jury of the merits of that defense as 

 

17 As we have said, the more favorable standard of review 

articulated in Commonwealth v. Wright, 411 Mass. at 682, applies 

where the defendant has been convicted of murder in the first 

degree and asserts a claim of ineffective assistance of counsel. 

Notwithstanding the more limited deference to counsel when the 

defendant stands convicted of murder in the first degree, we may 

still rely on the manifestly unreasonable test in Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974), to evaluate the claimed 

inadequacy in counsel's performance.
23

a factor in the choice of a defense, and to reject this option 

in favor of a defense deemed to be more acceptable to a jury. 

See Commonwealth v. Spray, 467 Mass. 456, 473 (2014) ("a 

decision not to pursue an insanity defense for tactical reasons, 

for instance because in the circumstances the defense would be 

factually weak, is not tantamount to ineffective assistance of 

counsel"); Commonwealth v. Walker, 443 Mass. at 228 (affirming 

denial of motion for new trial in part based on fact that 

defense counsel's trial strategy of pursuing one defense, as 

opposed to multiple defenses, was not manifestly unreasonable, 

"especially where the mental health defense would have 'severely 

weakened' the defense of self-defense"). In addition, as the 

judge found, presenting both defenses would have been 

pragmatically (although not legally) inconsistent. See 

Commonwealth v. Walker, 443 Mass. at 226 (although mental health 

defense and self-defense would not necessarily have been 

incompatible, mental impairment defense "likely would have an 

adverse impact on the claim of self-defense").

Applying the manifestly unreasonable test to counsel's 

decision to forgo a lack of criminal responsibility defense in 

the circumstances of this case, I cannot say that "lawyers of 

ordinary training and skill" would not consider his strategic 

choice to be competent. Thus, I conclude that counsel's 
24

decision to forgo a lack of criminal responsibility defense on 

this basis was not manifestly unreasonable.

Also, consistent with the view expressed in Commonwealth v. 

Kolenovic, 471 Mass. at 678, I add that counsel was not 

obligated to present a defense based on Dr. Spiers's expert 

opinion that the defendant suffered from a mental impairment at 

the time of the offense. Because we have recognized that "a 

defendant's legal counsel is uniquely qualified to assess the 

nuances that attend the development of the trial strategy," 

counsel reasonably may decline to accept the advice of a 

retained expert. Id.

Last, the defendant's reliance on Commonwealth v. Federici, 

427 Mass. 740 (1998), to advance the argument that he was 

entitled to make the choice whether to present a mental 

impairment defense and that counsel's strategic decision not to 

do so constituted ineffective assistance of counsel, is 

misplaced.18 In Federici, supra at 743-744, we determined only 

that a defendant's choice to forgo an insanity defense is a 

 

18 In Commonwealth v. Federici, 427 Mass. 740, 743-744 

(1998), the defendant, at trial, personally opposed the judge's 

proposal to instruct the jury on lack of criminal 

responsibility, then argued on appeal that the judge erred in 

failing to give that instruction despite the defendant's 

objection. We concluded that, "[i]n the circumstances, the 

judge had no obligation to do more and was entitled to rely on 

the defendant's refusal to present a defense of insanity." Id. 

at 746.
25

constitutionally protected right. Our holding did not reach the 

issue whether the defendant has an affirmative right to decide, 

independently of counsel, to present that defense. Even if I 

were to accept that view, the defendant would gain nothing by it 

given the particular circumstances of this case. Contrary to 

the defendant in Federici, the defendant expressed no wish or 

choice on the subject of presenting or forgoing a lack of 

criminal responsibility defense, and did not attempt to make any 

decision on the matter. Also, as the record reflects, the 

defendant steadfastly maintains that he will not present a 

mental impairment defense even he is granted a new trial.19

The confluence of these factors persuades me that counsel's 

strategic decision to forgo a defense of lack of criminal 

responsibility was not manifestly unreasonable. Although I do 

not reach the issue of prejudice in my analysis, I discern no 

basis for concluding that counsel's strategic choices, even if 

erroneous, created a substantial likelihood of a miscarriage of 

justice where the evidence against the defendant was strong and 

 

19 The defendant forcefully expressed his resolve not to 

present a mental impairment defense at a new trial. In the 

interview with the Commonwealth's expert, the defendant stated: 

"No, I'm not going to do that, you mean insanity? . . . I'm not 

a retard. I just have mental health history. I don't want to 

go to Bridgewater. . . I know what it is to be NGI -- go to 

Bridgewater and be forced to take medication and all that 

stuff."
26

counsel ably defended the indictment. Commonwealth v. Wright, 

411 Mass. at 682.
LENK, J. (concurring, with whom Gants, C.J., and Cordy, J., 

join). I agree with Justice Hines's conclusion that the 

defendant is not entitled to relief on his motion for a new 

trial based on ineffective assistance of counsel. I disagree 

however, on the reasons for that conclusion. Justice Hines 

rejects the defendant's motion because she determines that a 

hypothetical strategic decision, which defense counsel never 

actually made, was "not manifestly unreasonable." Ante at . 

I believe that the "manifestly unreasonable" standard should 

apply only when we are assessing the strategic decisions that 

defense counsel actually made, and not imagined decisions that 

counsel could have made.

The familiar test for a defendant's entitlement to relief 

under G. L. c. 278, § 33E, set forth by this court in 

Commonwealth v. Wright, 411 Mass 678, 682 (1992), has two parts. 

The court asks "[1] whether there was an error in the course of 

trial (by defense counsel, the prosecutor, or the judge), and, 

[2] if there was, whether that error was likely to have 

influenced the jury's conclusion." Id.

Justice Hines concludes that defense counsel's "failure 

even to consider an investigation" into a potential lack of 

criminal responsibility defense, "given the available 

information suggesting that the defendant had a substantial 

psychiatric history, did not meet th[e] standard" for effective 
2

assistance of counsel. Ante at . I agree with that 

determination. Then, however, instead of proceeding to the 

second part of the analysis and asking whether counsel's error 

was likely to have influenced the jury's conclusion, Justice 

Hines reconstructs a hypothetical choice that counsel might have 

made, had counsel completed an adequate investigation. She 

"assume[s] . . . that Dr. Paul Spiers's expert opinion [that the 

defendant lacked criminal responsibility for the killing] would 

have been available to counsel, if he had appropriately 

undertaken some investigation of the defendant's mental health 

history before trial." Ante at . Concluding that, "even 

assuming the availability of a viable lack of criminal 

responsibility defense, counsel's strategic choice to defend the 

case solely on a self-defense theory was not manifestly 

unreasonable," she concludes that the defendant's convictions 

should be affirmed. Ante at .

Our case law does not support this assessment of counsel's 

strategic decisions in isolation from his constitutionally 

inadequate investigation. On the contrary, we have held that 

"strategic choices made after less than complete investigation 

are reasonable [only] to the extent that reasonable professional 

judgments support the limitation on investigation." 

Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting 

Strickland v. Washington, 466 U.S. 668, 690-691 (1984). In 
3

making a judgment about whether the scope of an attorney's 

investigation met the constitutional standard of effectiveness, 

therefore, we are also invariably making a judgment about the 

reasonableness of the attorney's strategic choices: counsel's 

strategic choice here was unreasonable because it involved 

deciding against a defense that counsel had done nothing to 

investigate.

Furthermore, assessing defense counsel's strategic decision 

in isolation from the inadequate investigation violates the rule 

that we "evaluate the conduct from counsel's perspective at the 

time." Strickland v. Washington, 466 U.S. at 689. See 

Commonwealth v. Adams, 374 Mass. 722, 729 (1978) ("The test is 

not to be made with the advantage of hindsight"). Normally this 

rule operates to protect attorneys against the "distorting 

effects of hindsight," and to combat the temptation "to secondguess counsel's assistance after conviction or adverse 

sentence." Strickland v. Washington, supra. Yet I see no 

reason why it should not operate with the same force in cases 

like this one, where the defense attorney's strategic choice is 

unreasonable in light of the limited investigation on which it 

was based. Id.

Finally, because we are not assessing the strategic choice 

that counsel actually made, the "manifestly unreasonable" 

standard is inappropriate. Justice Hines states that, despite 
4

the "more favorable standard of review" for convictions of 

murder in the first degree under G. L. c. 278, § 33E, "we may 

still rely on the manifestly unreasonable test in Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974), to evaluate the claimed 

inadequacy in counsel's performance." Ante at note 17. While I 

agree that the "manifestly unreasonable" standard remains 

applicable under § 33E review, that standard does not constitute 

the general standard against which to measure any "claimed 

inadequacy in counsel's performance." On the contrary, the 

"manifestly unreasonable" standard is a special standard that 

applies where the attorney's purportedly constitutionally 

ineffective conduct involved a strategic decision, rather than 

some other claimed inadequacy such as a lack of appropriate 

investigation or preparation by defense counsel. Commonwealth

v. Martin, 427 Mass. 816, 822 (1998). We have emphasized that 

the "manifestly unreasonable" standard is highly deferential. 

Commonwealth v. Glover, 459 Mass. 836, 843 (2011). That 

deference reflects the recognition that the "distorting effects 

of hindsight," while always present in ineffective assistance of 

counsel claims, are especially severe where the court is 

assessing a trial strategy after it proved unsuccessful. See 

Strickland v. Washington, 466 U.S. at 689. See also 

Commonwealth v. Glover, supra.
5

The deference involved in the "manifestly unreasonable" 

standard only makes sense if we are assessing the strategic 

choice actually made by "fully informed [defense] counsel." 

Commonwealth v. Adams, 374 Mass. at 728. Had defense counsel 

here adequately investigated the defendant's psychiatric history 

and then decided to forgo a lack of criminal responsibility 

defense in favor of a self-defense theory, we would be hard 

pressed to find that strategic decision manifestly unreasonable. 

But that is not what happened. Instead, the choice that defense 

counsel actually made was to elect a defense without even 

investigating a lack of criminal responsibility defense. That 

strategic decision was manifestly unreasonable, and I see no 

reason why our assessment of its reasonableness should be any 

different simply because we can imagine a different lawyer who, 

after completing an adequate investigation into a lack of 

criminal responsibility defense, might have opted against it.

To say that the court should assess only the strategic 

decision that counsel actually made does not mean that we must 

close our eyes to the weakness of the lack of criminal 

responsibility defense that defense counsel failed to 

investigate. The second part of the § 33E analysis requires the 

court to ask "whether [the] error was likely to have influenced 

the jury's conclusion." Commonwealth v. Wright, 411 Mass. at 

682. And whereas, in determining whether there was an error by 
6

defense counsel, we "evaluate the conduct from counsel's 

perspective at the time," Strickland v. Washington, 466 U.S. at 

689, the inquiry into whether the error was prejudicial, both 

under § 33E review and otherwise, is expressly hypothetical. 

Where the case comes to this court on § 33E review, we ask 

whether "we are substantially confident that, if the error had 

not been made, the jury verdict would have been the same." 

Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting 

Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass. 

822 (2004).

In this case, I conclude that the defendant cannot make 

that showing. The defendant has offered no evidence indicating 

that he would have agreed to present a lack of criminal 

responsibility defense at the time of the original trial, and 

has clearly asserted that he would not present the defense at a 

new trial. See Commonwealth v. Comita, 441 Mass. 86, 90 (2004). 

Because, under Commonwealth v. Federici, 427 Mass. 740, 744-745 

(1998), the decision to present a lack of criminal 

responsibility defense lies solely with him, the absence of any 

evidence indicating his willingness to present the defense 

prevents him from establishing prejudice as a result of 

counsel's failure to investigate such a defense.1

 

1 Even if the defendant had agreed to present a lack of 

criminal responsibility defense, I would still question whether 
7

My disagreement with Justice Hines's analysis of this issue 

is not merely a technical quibble. On the contrary, I believe 

that her expansion of the highly deferential "manifestly 

unreasonable" standard beyond our evaluation of strategic 

decisions that counsel actually made could have a significant 

impact upon other cases, where the defendant is able to show an 

error by counsel. Under that approach, a defendant's 

ineffective assistance of counsel claim would fail whenever the 

court can imagine a hypothetical lawyer who could have made a 

considered strategic judgment to present the case in a certain 

 

the failure to do so created a substantial likelihood of a 

miscarriage of justice. Where a defendant moves for a new trial 

based on ineffective assistance of counsel in failing adequately 

to investigate a potential lack of criminal responsibility 

defense, the judge may not deny the motion based on the judge's 

own assessment of a potential expert's credibility or based on 

the general observation that juries routinely reject lack of 

criminal responsibility defenses. See Commonwealth v. Roberio, 

428 Mass. 278, 281 n.5 (1998). Nevertheless, to prevail on such 

a motion, the defendant must establish that "counsel's failure 

to raise" a lack of criminal responsibility defense "was likely 

to have influenced the jury's conclusion," thus requiring some 

judicial assessment of the strength of the defense. Id. at 281.

Here I question whether a lack of criminal responsibility 

defense would have been a substantial defense and see no 

reasonable basis for thinking the outcome at trial likely would 

have been different had the defense been offered. I come to 

that view given the considerably less than compelling quality of 

the proposed lack of criminal responsibility defense as 

ultimately outlined by the defense expert and the diluting 

effect of such a defense on the viable self-defense claim 

actually presented at trial. These considerations are, of 

course, the same factors that lead Justice Hines to determine 

that the hypothetical strategic choice to forgo an ineffective 

assistance of counsel defense was not manifestly unreasonable.
8

way, even if the court has already found that defense counsel's 

actual decision did not reflect such a considered strategic 

judgment. That approach significantly diminishes the force of 

claims of ineffective assistance of counsel as protection 

against wrongful or unfair convictions.