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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2015, was temporarily withdrawn by the court and has been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 self-

defense, heat of passion on reasonable provocation, and heat of

passion induced by sudden combat.     He also instructed on self-

defense 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 second-

guess 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.
