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SJC-11403

                  COMMONWEALTH    vs.   EUNICE M. FIELD.



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

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


Homicide. Constitutional Law, Assistance of counsel, Admissions
     and confessions, Voluntariness of statement. Mental
     Impairment. Evidence, Admissions and confessions,
     Voluntariness of statement, Videotape, Competency.
     Practice, Criminal, Capital case, Assistance of counsel,
     Admissions and confessions, Voluntariness of statement,
     Competency to stand trial.



     Indictment found and returned in the Superior Court
Department on October 21, 2010.

     The case was tried before Charles J. Hely, J., and a motion
for a new trial, filed on June 16, 2014, was heard by him.


     Elizabeth Caddick for the defendant.
     Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.


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

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

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


deliberate premeditation and extreme atrocity or cruelty.     The

defendant appeals from her conviction and from the denial of her

motion for a new trial.

    The defendant asserts several claims of ineffective

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

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

mental impairment, including impeaching the Commonwealth's

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

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

defendant's competency to stand trial.    Although we conclude

that trial counsel erred by failing to consult with a mental

health expert, the error does not require reversal of the

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

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

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

relief under G. L. c. 278, § 33E.

    Background.   We recite the facts the jury could have found

in the light most favorable to the Commonwealth, reserving

certain details for our analysis of the issues.

    The defendant, who was prescribed medication for bipolar

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

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

the victim had a strained relationship for some time leading up

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


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

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

defendant's romantic relationship with the girl friend ending in

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

romantic relationship with the girl friend, the defendant

harbored resentment toward the victim.      According to the

defendant, the victim prevented her from visiting a sick mutual

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

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

telephoned the victim and arranged to meet her the following

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

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

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

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

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

addressed to the former girl friend, which stated that the

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

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


     1
         The note stated:

          "I love you with all my heart. I know you know that.
     I'm sorry for not giving you a better life. My heart aches
     for what I have done to you. But remember to always follow
     your heart. My mind is tired now, so I have to go. Your
     [sic] the best thing that ever happened to me. I will love
     you always for that, but something happened to me, with my
     bipolar and all, I snapped. Lorraine will get what she
     deserves for coming between you and me. I love you. . .
                                                                     4


    The defendant traveled to the victim's apartment in

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

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

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

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

remained in her motor vehicle. Officers found the defendant,

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

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

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

just killed someone.

    The defendant was brought into the police station and

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

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

also provided the officers with the name of the apartment

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

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

responded that she understood them and that she wished to waive

them.   Police conducted a videotaped interview in which the

defendant made incriminating statements.

    The defendant was then transported to the Bridgewater

police station.   After the standard booking procedure, she again

waived her Miranda rights.    The police conducted another


    Eunice. P.S. Someday we will all know the real truth.
    P.S.S. [sic] . . . Tell Truth. 'Wasn't my pain real'? by
    Eunice Field."
                                                                    5


videotaped interview, during which she made additional

incriminating statements.   The police searched the victim's

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

doorway and bloodstains throughout the apartment.

    The two videotaped interviews were introduced at trial.

The Commonwealth also called an expert who testified that, in

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

manic behavior, depression, delusions, or hallucinations, and

stated that he believed that she was criminally responsible for

her actions.

    The defendant did not contest that she had killed the

victim.   Counsel argued essentially that the defendant's severe

bipolar disorder prevented her from forming the requisite intent

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

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

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

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

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

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

newly appointed counsel argued that trial counsel had been

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

After an evidentiary hearing at which a mental health expert

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

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


any errors committed by trial counsel did not affect the

evidence that the defendant deliberately premeditated the

murder.   The defendant timely appealed, and the appeal was

consolidated with her direct appeal.

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

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

his direct appeal from an underlying conviction of murder, we

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

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

defendant's arguments on appeal stem from the ineffective

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

trial.

    In capital murder cases, we review ineffective assistance

of counsel claims by first determining "whether the alleged

lapse created a substantial likelihood of a miscarriage of

justice, a standard more favorable to the defendant than the

constitutional standard otherwise applied under Commonwealth v.

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

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

determine whether trial counsel erred and whether any such error

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

ineffective assistance of counsel claim is based on a tactical

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

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


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

471 Mass. 664, 674 (2015).

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

with overwhelming evidence, including noncustodial admissions

from the defendant,2 counsel's goal from the beginning of the

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

The defendant claims that, had counsel consulted with a mental

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

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

first degree, by presenting evidence regarding her mental

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

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

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

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

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

murder with deliberate premeditation.   See Commonwealth v.

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

     Trial counsel apparently recognized, as evidenced by his ex

parte motion for expert funds prior to trial, that the

defendant's mental state was central to his strategy of


     2
       Although, as discussed infra, the defendant asserts that
her custodial statements made to both Brockton and Bridgewater
police officers should have been suppressed, she does not
contest the admissibility of her earlier noncustodial statements
to the Brockton police, in which she admitted that she had
killed the victim.
                                                                     8


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

trial counsel knew that the defendant had claimed that she had

run out of her prescription bipolar medication several days

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

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

due to her bipolar disorder.

    Although trial counsel's overarching strategy to avoid a

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

available defense, it was apparent from facts known and

available to counsel that the defendant's mental impairment

would be central to this defensive strategy.    Nonetheless, trial

counsel never consulted with an expert regarding the defendant's

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

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

(2003) (failure to investigate criminal responsibility defense

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

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

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

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

records for mental health issue was not unreasonable when

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

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

counsel did not provide a tactical justification for his failure

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


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

tactical or strategic judgments . . . are called into question

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

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

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

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

thought he understood the issues and he was skeptical that the

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

Accordingly, we conclude trial counsel erred by failing at least

to consult with an expert regarding the defendant's mental

impairment at the time she killed the victim.

    Because of this conclusion, we now examine whether that

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

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

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

ineffective assistance, the defendant must establish that

consulting with an expert would have enabled trial counsel to

mount an effective defense based on her lack of capacity for

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

(defendant bears burden to prove ineffectiveness).     Moreover,

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

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

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

at 220.
                                                                   10


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

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

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

extreme atrocity or cruelty.   He did not testify that the

defendant lacked the capacity to deliberately premeditate.

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

conclusion that the defendant had formulated a plan to kill the

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

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

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

Therefore, even assuming that the expert would have assisted the

defense argument that the defendant could not have committed the

murder with extreme atrocity or cruelty, the record does not

establish that the expert could have assisted trial counsel in

either presenting a defense to, or more effectively cross-

examining the Commonwealth's expert regarding, deliberate

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

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

consultation with the expert would have altered the jury’s



     3
       We note also that the judge instructed the jury regarding
lack of criminal responsibility, even though the motion judge
noted that the defendant had, at no time, demonstrated that lack
of criminal responsibility was an available ground of defense.
The defendant does not, however, argue on appeal that she was
not criminally responsible. Nor did the defense expert so
testify at the new trial motion hearing.
                                                                  11


conviction of murder in the first degree based on deliberate

premeditation.

     2. Failure to suppress the two police interviews.     The

defendant argues that, had trial counsel consulted with an

expert, he could have successfully suppressed both videorecorded

police interviews for being involuntary, based on her state of

mind.    Without these recordings, the defendant contends, the

jury would not have had a sufficient basis to find either

premeditation or extreme atrocity or cruelty.

     Trial counsel believed that allowing the jury to view the

video recordings of both police interviews and to observe her

strange behavior firsthand would increase the likelihood that

the jury would find that the defendant had not premeditated the

killing or acted with extreme atrocity or cruelty.    Trial

counsel's choice not to challenge the admissibility of the

interviews, therefore, was a tactical decision that was not

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

whether counsel's judgment was manifestly unreasonable because

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

cannot conclude on this record that the admission of the

videorecorded interviews was likely to have affected the jury's

     4
      Given the overwhelming evidence of guilt   separate and
distinct from the videorecorded interviews, it   was reasonable to
allow the jury to see the defendant's behavior   for themselves,
rather than having witnesses describe it in an   antiseptic
fashion.
                                                                   12


verdict of murder by deliberate premeditation.      See Fulgiam, 477

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

failure to move to suppress, defendant must show motion would

have succeeded and that failure created substantial likelihood

of miscarriage of justice).

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

Brockton police station, the defendant made incriminating

statements, including that she intended to kill the victim

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

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

defendant contends that, without this evidence, the jury could

not have convicted the defendant of murder in the first degree

based on deliberate premeditation.   We disagree.

    The defendant's expert testified at the hearing on the

motion for a new trial that the defendant exhibited some strange

behaviors during the interview, such as slurred speech, requests

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

answering questions.   The expert further testified that the

defendant may have been experiencing auditory hallucinations.

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

defendant was not capable of voluntarily making these statements

or waiving her Miranda rights.

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

involuntary and should have been suppressed, there was still
                                                                    13


compelling evidence of premeditation.    Most significantly, the

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

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

relationship with her girl friend.    Additionally, the defendant

telephoned the victim the night before the killing to arrange

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

Facebook post that, although not directly alluding to the victim

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

defendant was preparing to take some sort of drastic action the

following day.   Finally, the defendant harbored ill feelings

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

and had arranged to meet the victim that morning.

    b.   The Bridgewater police interview.    The defendant argues

that the second recorded interview formed the evidentiary basis

that allowed the jury to conclude that the defendant had acted

with extreme atrocity or cruelty.    The defendant asserts that

the interview could have been suppressed based on either a lack

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

assertion that she wanted to stop answering questions until she

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

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

questions, that decision must be "scrupulously honored"

[citation omitted]).
                                                                   14


    Many of the incriminating statements from the second

interview supported the Commonwealth's theory of extreme

atrocity or cruelty, providing evidence of conscious suffering

by the victim and the defendant's indifferent attitude towards

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

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

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

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

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

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

felt good about what she had done.

    Even assuming, however, that the Bridgewater interview

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

atrocity or cruelty and that the interview should have been

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

degree would still stand, based on the compelling evidence of

deliberate premeditation.    Accordingly, even if the defendant

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

deliberate premeditation from other sources (such as her

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

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

admission of the video recording was likely to have influenced

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

premeditation.    Wright, 411 Mass. at 682.
                                                                   15


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

defendant argues that trial counsel was ineffective for failing

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

Such an inquiry is appropriate where there is a "substantial

question of possible doubt" regarding the defendant's competency

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

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

Commonwealth bears a burden to demonstrate a defendant's

competency when the issue is raised before trial, Commonwealth

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

burden to demonstrate ineffectiveness when seeking a new trial.

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

burden.

    The defendant has presented no evidence, beyond trial

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

understood the mental impairment defense, that the defendant was

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

was no testimony that the defendant lacked the ability to

consult with a reasonable degree of understanding.   Although the

defendant argues on appeal that consulting with an expert may

have helped trial counsel realize that the defendant lacked that

ability, the defendant presented no evidence to support such a

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

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


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

on this record, that the defendant has raised a substantial

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

Mass. at 48-49.

    Conclusion.    We have reviewed the entire pursuant to our

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

unreasonably failed to consult with a mental health expert for

trial, we conclude that the defendant has failed to establish

that such a consultation would have provided a basis to

challenge the Commonwealth's theory of premeditated murder.

Because we conclude that, even if the interviews should have

been excluded and even if the second interview formed the sole

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

ample evidence of premeditation independent of the interviews,

the conviction of murder in the first degree stands.

Accordingly, neither trial counsel's shortcomings nor the

interests of justice require entry of a lesser degree of guilt

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

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

                                    So ordered.
