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SJC-11361

                  COMMONWEALTH   vs.   ROBERT GULLA.



         Middlesex.      January 10, 2017. - April 5, 2017.

   Present:     Gants, C.J., Botsford, Lenk, Hines, & Budd, JJ. 1


Homicide. Constitutional Law, Assistance of counsel, Fair
     trial. Practice, Criminal, Assistance of counsel, Argument
     by counsel, Instructions to jury, Capital case.



     Indictments found and returned in the Superior Court
Department on March 4, 2010.

     The cases were tried before Thomas P. Billings, J., and a
motion for a new trial, filed on October 29, 2014, was heard by
him.


     Stephen Paul Maidman for the defendant.
     Jamie Michael Charles, Assistant District Attorney (Casey
E. Silvia, Assistant District Attorney, also present) for the
Commonwealth.


     BUDD, J.    The defendant, Robert Gulla, was convicted of

murder in the first degree of the victim on the theories of



     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                     2


deliberate premeditation and extreme atrocity or cruelty. 2     In

this appeal, 3 the defendant asserts that he was denied effective

assistance of counsel and a meaningful opportunity to present a

complete defense, as well as denied a fair trial based on the

judge's failure to give certain jury instructions.   The

defendant also seeks relief under G. L. c. 278, § 33E.     After

full consideration of the record and the defendant's arguments,

we affirm the defendant's convictions and the denial of his

motion for a new trial, and decline to grant extraordinary

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

     Background.   We summarize the evidence that the jury could

have found, reserving certain details for discussion of specific

issues.   On January 23, 2010, the defendant beat, strangled,

stabbed, and shot the victim, killing her.   The victim's

homicide was the culmination of a short but violent relationship

between the two.   The defendant met the victim, who was

attending a State university, in early September of 2009 at a

college party; the defendant was not a student there.    Soon

thereafter they began a dating relationship.




     2
       The defendant also was convicted of violation of an abuse
prevention order.
     3
       This court consolidated the appeal from the denial of his
motion for a new trial due to ineffective assistance of counsel
with his direct appeal.
                                                                    3


     On September 25, 2009, an altercation between the victim

and the defendant in her dormitory led campus police to escort

the defendant off campus and issue a no-trespass order.

Approximately one and one-half weeks later, the victim lodged a

complaint with police after the two had an argument and the

defendant pushed her out of his truck and drove away, leaving

her stranded on the side of the road.

     They spent less time together after that, and the victim

began dating a fellow student; however, she continued to see the

defendant.   One night in early December the victim was visiting

with the defendant at his home where he lived with his mother

and brother.   After the two argued loudly, the defendant punched

the victim in the stomach and took her cellular telephone to

review its contents.    He later smashed it and threw it into the

woods near his house.   The defendant's mother telephoned the

police, and he subsequently was arrested.

     On January, 19, 2010, the defendant had an argument via

telephone with the victim because she was spending time with her

fellow student.   The victim thereafter applied for and received

a temporary restraining order against the defendant.

     Despite the restraining order, three days later, the

defendant borrowed his mother's automobile to pick the victim up

and drive her to his house to spend the night.   The next

evening, the defendant's mother found the two of them covered in
                                                                    4


blood lying face down, side by side on the floor of the

defendant's basement bedroom.    First responders determined that

the victim was deceased:    her body was severely bruised and

swollen, and she had several stab wounds, including to her

throat.   The injuries to her face, including bruises and a

pellet gunshot wound between the eyes, rendered her

unrecognizable.    By contrast, the defendant regained

consciousness and his wounds were less severe.    He had a large

cut on his left wrist and a pellet gunshot wound to the temple,

consistent with self-inflicted wounds; he also had superficial

cuts on his hand, consistent with forceful stabbing motions, and

an area at the back of his head that first responders described

as filled with fluid feeling "like a sponge." 4   Nearby was a copy

of the temporary restraining order and what appeared to be a

suicide note admitting his culpability for the homicide. 5

     Discussion.   1.   Ineffective assistance of counsel.    At

trial, defense counsel pursued a diminished capacity defense.

He presented a psychiatrist who testified that the defendant

suffered from a mental impairment that made him incapable of

forming the requisite intent for murder in the first degree.

The defendant claims that his trial attorney was ineffective

     4
       The defendant told first responders that the victim bit
him on the back of the head.
     5
       The note read: "To my family I love you all This is the
last thing I wanted to happen but it just did."
                                                                      5


because the attorney (1) failed to raise a lack of criminal

responsibility defense, which would have absolved the defendant

of culpability altogether; (2) failed to request a lack of

criminal responsibility instruction; and (3) failed to

adequately argue the theory that counsel did pursue, diminished

capacity, in his closing argument.     The defendant unsuccessfully

made the same claims in his motion for a new trial.

     Rather than evaluating an ineffective assistance claim

under the traditional standard of Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), 6 in cases of murder in the first degree, we

apply the standard of G. L. c. 278, § 33E, to determine whether

there was a substantial likelihood of a miscarriage of

justice.   Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992),

S.C., 469 Mass. 447 (2014).   See Commonwealth v. LaCava, 438

Mass. 708, 712-713 (2003), quoting Commonwealth v. Harbin, 435

Mass. 654, 656 (2002).   More particularly, we determine whether

there was an error in the course of the trial by defense counsel

(or the prosecutor or the judge) "and, if there was, whether

that error was likely to have influenced the jury's

conclusion."   Wright, supra at 682.    Here, the defendant has not



     6
       Under Saferian, 366 Mass. at 96, the standard is whether
an attorney's performance fell measurably below that which might
be expected from an ordinary fallible lawyer and, if so, whether
such ineffectiveness has likely deprived the defendant of an
otherwise available substantial defense.
                                                                     6


met his burden to show that there was a serious failure by his

trial counsel.

     a.     Lack of criminal responsibility defense.   The defendant

claims that the brutal nature of the crime, his attempted

suicide afterward, and his mental condition made lack of

criminal responsibility a viable, complete defense to the murder

charge. 7   Consequently, he argues, trial counsel was ineffective

for failing to pursue a lack of criminal responsibility defense,

and for failing to request a jury instruction on it.

     The decision of defense counsel regarding the best defense

to pursue at trial is a tactical one and will not be deemed

ineffective unless manifestly unreasonable when

made.     Commonwealth v. Vao Sok, 435 Mass. 743, 758 (2002).

Here, the defendant has not shown that his trial counsel's

tactical decision was manifestly unreasonable.    At a hearing on

the motion for a new trial, trial counsel testified that he

considered the lack of criminal responsibility defense but

decided against it because he was unable to find an expert who

would testify that the defendant lacked criminal responsibility

     7
       "A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
he lacks substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law." Commonwealth v. LaCava,
438 Mass. 708, 713 (2003), quoting Commonwealth v. McHoul, 352
Mass. 544, 546-547 (1967), S.C., 365 Mass. 465 (1974) and 372
Mass. 11 (1977) and 445 Mass. 143 (2005), cert. denied, 547 U.S.
1114 (2006).
                                                                    7


due to a mental disease or defect. 8   The motion judge, who was

also the trial judge, made detailed findings including that,

understanding that expert testimony is not necessary to pursue a

lack of criminal responsibility defense, see Commonwealth

v. Monico, 396 Mass. 793, 797-798 (1986), trial counsel chose

not to assert, or request an instruction for, a defense that his

own expert did not support and that could undercut the

diminished capacity defense, which he did assert and which had a

basis in the evidence.    The judge concluded that this was not

ineffective assistance.    We agree.   See Commonwealth v. Cutts,

444 Mass. 821, 828 (2005); LaCava, 438 Mass. at 714-

715; Commonwealth v. Genius, 387 Mass. 695, 697-699 (1982),

S.C., 402 Mass. 711 (1988).    See also Commonwealth v. Mosher,

455 Mass. 811, 827 (2010) ("Many decisions of defense counsel

that are characterized in hindsight as errors may have been

reasonable tactical or strategic decisions when made . . .").

     b.   Closing argument.   The defendant contends that his

trial counsel's closing argument was constitutionally

ineffective because counsel failed to argue diminished capacity

forcefully enough to the jury.    We conclude, as did the judge

below, that this claim is without merit.


     8
       The defendant's trial counsel sought opinions from three
experts, two psychologists and a psychiatrist, none of whom
found that the defendant met the legal criteria for lack of
criminal responsibility.
                                                                       8


     While "[w]ith hindsight, one can always craft a more

eloquent and forceful closing argument," trial counsel covered

all the necessary points.     Commonwealth v. Denis, 442 Mass. 617,

627 (2004).    He argued that although the two experts on the

opposing sides of the case diagnosed the defendant differently,

they both agreed that the defendant suffered from mental illness

from an early age.    The fact that the defendant had trouble

"connecting the dots" was a theme throughout counsel's closing.

He emphasized the unusual way the defendant handled common,

albeit stressful, situations as compared to a "normal person."

He also underscored, more than once, the defendant's issues with

alcohol.    Finally, he specifically asked the jury to consider

that, given the defendant's mental impairment and intoxication,

he was unable to form the intent for murder in the first degree.

"[S]uggesting ways in which counsel's closing argument might

have been stronger does not make out a claim of ineffective

assistance."    Id. at 628.

     2.    Jury instructions.   a.   Lack of criminal responsibility

instruction.    The defendant claims that he was denied a

meaningful opportunity to present a complete defense because the

trial judge did not instruct the jury on lack of criminal

responsibility, claiming that the judge should have done so

despite the fact that the defendant's trial counsel did not

request such an instruction.     The argument fails.
                                                                   9


     Although we have stated that it is best to err on the side

of giving a lack of criminal responsibility instruction where

the "appropriateness of [such an instruction] is marginal," we

did so in a case where the defendant requested the

instruction.   Commonwealth v. Mattson, 377 Mass. 638, 642, 644

(1979).   See Monico, 396 Mass. at 802-803.   Here, as

discussed supra, the defendant's trial counsel made a tactical

decision not to pursue a lack of criminal responsibility

defense, and given the paucity of evidence to support such a

defense, it would arguably have been error for the judge to have

nevertheless, sua sponte, instructed the jury on that theory.

See Commonwealth v. Norris, 462 Mass. 131, 144 (2012) (where

evidence suggests defense would be unconvincing, judge sua

sponte issuing instruction on that defense "might well . . .

interfere[] with the defendants' right to present their chosen

defenses").

     b.   Manslaughter instruction.   The defendant requested a

voluntary manslaughter instruction on the theory that he killed

the victim during a fight (pointing to evidence of the injury to

the back of his head) or, alternatively, that he killed the

victim upon learning anew that she had been unfaithful to him.

See Commonwealth v. Valentin, 474 Mass. 301, 311 (2016),

quoting Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006)

("Where an instruction on voluntary manslaughter is requested, a
                                                                     10


trial judge should so instruct the jury if any view of the

evidence would warrant a finding that the unlawful killing arose

not from malice, but 'from . . . sudden passion induced by

reasonable provocation, sudden combat, or excessive force in

self-defense'").     The judge denied the request.   The defendant

objected at the time and now claims that the denial deprived him

of his right to a fair trial.     We review the ruling for

prejudicial error, and find none.     See Commonwealth v. Kelly,

470 Mass. 682, 687-688 (2015).

     The evidence at trial did not support a finding of sudden

passion induced by reasonable provocation, sudden combat, or

excessive use of force in self-defense.    Although the defendant

told first responders that the victim bit him, there is no

evidence that she initiated physical contact.    See Commonwealth

v. Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come

from the victim").

     As for the theory that the defendant was provoked by the

victim's infidelity, "[v]oluntary manslaughter based on heat of

passion requires evidence that there was 'provocation that would

have been likely to produce in an ordinary person' such a state

of mind as would overcome reflection or restraint and that the

provocation 'actually did produce such a state of mind in the

defendant.'"   Commonwealth v. Tassinari, 466 Mass. 340, 355

(2013), quoting Commonwealth v. Sirois, 437 Mass. 845, 854
                                                                   11


(2002).   Here, given the evidence that the defendant had prior

knowledge of the victim's relationship with her fellow student,

he cannot claim a sudden discovery that would serve as

reasonable provocation.   See Commonwealth v. LeClair, 429 Mass.

313, 316-317 (1999).   There was no error.

     3.   Review under G. L. c. 278, § 33E.   We have reviewed the

briefs and the entire record and discern no reason to reduce the

degree of guilt or grant a new trial pursuant to our powers

under G. L. c. 278, § 33E.

                                    Judgments affirmed.
