Commonwealth v. Finstein

687 N.E.2d 638, 426 Mass. 200, 1997 Mass. LEXIS 403
CourtMassachusetts Supreme Judicial Court
DecidedDecember 4, 1997
StatusPublished
Cited by34 cases

This text of 687 N.E.2d 638 (Commonwealth v. Finstein) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Finstein, 687 N.E.2d 638, 426 Mass. 200, 1997 Mass. LEXIS 403 (Mass. 1997).

Opinion

Wilkins, C.J.

A jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. We have before us the defendant’s appeal from his conviction, in which he does not assert any trial error but seeks a reduction in the verdict or a new trial pursuant to G. L. c. 278, § 33E. He has also appealed from the denial of his motion for a new trial which was based on a claim of ineffective assistance of trial counsel. We affirm the conviction and the order denying the defendant’s motion for a new trial.

The jury were warranted in finding the following facts. On the morning of December 15, 1989, the defendant stabbed the [201]*201seventy-nine year old victim to death in her apartment in Waltham. Shortly before the homicide, the defendant rang the doorbell of an upstairs neighbor of the victim. When the upstairs neighbor came to the common front door of the building, the defendant asked whether she would like to purchase some shoes. She said that she would not. The defendant, who was carrying a clipboard and acted normal, inquired if the residents of the first-floor apartment were at home. The upstairs neighbor said that they were not. The defendant left. As the neighbor was about to walk up the stairs to her apartment, the victim, who had just returned home through her back door, opened the front door of her apartment and inquired of her neighbor who had been at the front door. The victim took some literature about shoes that the defendant had left for the residents of her apartment and went back into her apartment. Shortly thereafter the upstairs neighbor heard a scream from the victim and called for help. Another neighbor looked through the kitchen window and saw the victim lying on her back in the bathroom. He then ran to the front of the house where he saw a man calmly coming down the front steps. The neighbor asked the man if he wanted something, and he calmly replied, “Nope.”

The victim had five stab wounds and some injuries to her face. A police officer found a piece of broken clipboard under the victim. A fingerprint of the defendant was on the clipboard. There were bloody footprints and drag marks from the kitchen to the bathroom. The clipboard, which could have caused the injuries to the victim’s face, had been stolen from the desk of a supervisor at a shoe wholesaler where the defendant had been employed until about a week before the murder. In his work with shoe cartons, the defendant had used a knife with a three-inch blade, a knife that a medical examiner testified could have inflicted the victim’s wounds. A search of the defendant’s home produced one of the defendant’s sneakers with blood on it. The sneaker had the pattern of a footprint that had been formed on the victim’s kitchen floor.

The defendant defended on the ground that someone other than he had committed the murder. There were discrepancies in the witnesses’ descriptions of the “salesman.” No one had selected the defendant’s photograph from an array. Ap[202]*202proximately 500 people worked within the building that housed the defendant’s former employer and any number of people could have taken the clipboard. More than two million pairs of sneakers of the type the defendant owned had been sold. The police found no other clothes of the type described by witnesses during the search of the defendant’s home. No knife was ever found. Some of the victim’s wounds were greater in depth than the length of the type of knife that the defendant had used at work.

The defendant’s sole argument of substance in this appeal relates to evidence that was not presented at his trial and that he alleged in his motion for a new trial, filed on June 7, 1994, should have been introduced. The defendant asserts that he had a borderline I.Q. and a history of drug dependency, especially heroin dependency, and that he had withdrawal symptoms that had a significant bearing on his mental capacity at the time of the killing. His lawyer knew of the defendant’s history of heroin use and before trial had moved, but without success, for funds for a drug dependency evaluation of the defendant. The defendant argues that the failure of his trial counsel to pursue the matter was ineffective assistance of counsel in a constitutional sense.

The motion judge, who was also the trial judge, found that at the time of the murder, the defendant was using from two to five bags of heroin a day. The defendant told the forensic psychiatrist who testified on his behalf at the hearing on the motion for a new trial that he had experienced panic, acute anxiety, paranoia, and desperation when deprived of heroin. The psychiatrist testified that, because of the defendant’s state of withdrawal from heroin at the time of the murder superimposed on the defendant’s neuropsychological deficits, the defendant reacted impulsively to the victim’s screaming and at that time lacked the capacity to premeditate the crime, to act with extreme atrocity or cruelty, or to act with malice.

It is this evidence that the defendant asserts would have provided him “with a defense based on diminished capacity.” There is no defense of diminished capacity in this State. See Commonwealth v. Parker, 420 Mass. 242, 245 n.3 (1995). The [203]*203evidence that the defendant asserts should have been presented to the jury would have tended to show that he lacked the capacity to premeditate, to act with extreme atrocity or cruelty, or to act with malice. That evidence would have been a “defense” only in the sense that it would have tended to undercut the Commonwealth’s proof of the defendant’s state of mind.

A psychiatrist testified for the Commonwealth that an inability to control impulses was not typical of heroin withdrawal, that the defendant’s conduct and appearance before and after the murder did not support the conclusion that he was undergoing acute heroin withdrawal, and that the defendant had the capacity to plan and to have those thought processes that are elements of deliberate premeditation, extreme atrocity or cruelty, and malice. The judge credited this testimony, and concluded that the defendant’s expert testimony, weighed with that of the Commonwealth’s expert, would not likely have influenced the jury’s findings. On the other hand, there is no basis for concluding that, if presented as a witness, the defendant’s expert would not have been permitted to testify at trial as he did at the hearing on the motion for a new trial.

The issue before the judge was whether defense counsel’s performance fell measurably below that of an ordinary fallible lawyer and, if so, whether “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See Commonwealth v. White, 409 Mass. 266, 272 (1991); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, the claim is that defense counsel committed a tactical error, the defendant must demonstrate that defense counsel’s tactical judgment was manifestly unreasonable. Commonwealth v. Roberts, 423 Mass. 17, 20 (1996). Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

The decision of defense counsel not to pursue the state of mind evidence was not unreasonable. The defendant consistently maintained that he wanted to present the defense that he was not the person who killed the victim. The judge found, based on the evidence, including the testimony of the defendant’s trial counsel, that defense counsel knew that there was no eyewit

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Bluebook (online)
687 N.E.2d 638, 426 Mass. 200, 1997 Mass. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-finstein-mass-1997.