Commonwealth v. Holland

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-08737

COMMONWEALTH vs. DANIEL L. HOLLAND.

Norfolk. November 10, 2016. - April 19, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.

Homicide. Armed Home Invasion. Constitutional Law, Assistance
of counsel, Fair trial. Practice, Criminal, Capital case,
Postconviction relief, Assistance of counsel, Fair trial,
Comment by judge. Mental Impairment. Insanity.

Indictments found and returned in the Superior Court
Department on November 18, 1998.

The cases were tried before Thomas E. Connolly, J., and
motions for a new trial, filed on April 3, 2006, and December
18, 2008, were heard by him.

Kevin S. Nixon for the defendant.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.

HINES, J. On October 13, 1998, the victim was shot to

death in her home. A jury convicted the defendant, the victim's

estranged husband, of murder in the first degree on the theories

of deliberate premeditation and extreme atrocity or cruelty, and
 2

armed home invasion. The defendant appealed from his

convictions and from the denial of his two motions for a new

trial. In his brief on appeal, the defendant argues that the

trial judge erred in denying his first motion for a new trial on

the ground that his trial counsel was constitutionally

ineffective in failing to investigate and present a defense of

lack of criminal responsibility. We affirm his convictions as

well as the orders denying the motions for a new trial.

Background. 1. The trial. Based on the evidence adduced

at trial, the jury could have found the following facts. The

defendant and the victim were married in 1989, and their son was

born later that year. A few years later, the couple moved into

their family home, located in Quincy. As time progressed, the

marriage became turbulent and tension grew between the couple.

In February, 1998, the victim sought and was granted a

restraining order against the defendant, the terms of which

required him to vacate the marital home. For a number of

months, the defendant stayed with family or friends and later

moved into an apartment in the Dorchester section of Boston. In

September, 1998, the defendant and his then girl friend moved to

Richmond, New Hampshire, to live with the defendant's uncle.

On the afternoon of the day of the murder, the defendant

began drinking one hundred proof peppermint schnapps and
 3

ingesting Elavil1, a prescription medication that the defendant

had found. Later that evening, the defendant purchased two

twelve packs of beer, and drove to a nearby bridge where he

drank the beers, smoked "crack" cocaine, and took more Elavil.

Next, the defendant drove to a bar just over the Massachusetts

border where he consumed more alcohol until the bartender

refused to serve him. After leaving the bar, he ingested more

Elavil and smoked crack cocaine and marijuana, before driving to

Quincy.

The defendant arrived the victim's home between

approximately 11:30 P.M. and midnight. He retrieved his golf

bag, containing golf clubs and a .22 caliber rifle, from the

trunk of his vehicle. The defendant had purchased the rifle and

.22 caliber ammunition a month or so before that night.2 Once on

the porch, the defendant dropped a can of beer and a straw, and

used the golf bag to break the front porch window of the home.

He entered and went up the stairs to the master bedroom where he

shot the victim with the rifle and beat her with the stock of

1
Elavil is an antidepressant prescription medication, which
has sedative effects.
2
When purchasing the rifle from a department store, the
defendant provided several false responses on the Bureau of
Alcohol, Tobacco, Firearms, and Explosives form that is required
to secure a firearm. He falsely indicated that he was neither
subject to a restraining order nor "under indictment or
information in any court" for which he could be imprisoned for
more than one year.
 4

the rifle until it broke into pieces. At around 8:30 A.M. the

next day, the victim's eight year old son discovered his

mother's body in the bedroom.

The victim suffered gunshot wounds to her chest and

abdomen, multiple lacerations on her head caused by blunt force

trauma, and abrasions on her back. The cause of death was

multiple gunshot wounds.

Following the murder, the defendant drove back to his

uncle's home. The defendant spoke with his uncle briefly and

then got into bed with his girl friend. She noticed that his

hands were swollen and had cuts on them. The defendant

explained that he had been in a bar fight.

When the defendant and his girl friend awoke on the morning

of October 14, they packed an overnight bag for a trip to

Massachusetts, where they planned to go to a bank to get money,

possibly to leave town. The girl friend drove while the

defendant slept in the passenger seat. The two arrived in

Braintree at around 5 P.M., after the bank had closed.

After speaking to a longtime friend of the defendant who

did not want the pair to come to her house, the girl friend

attempted to hide the vehicle, and ultimately discovered that

the defendant's golf bag was missing from the trunk. When she

asked the defendant if he had killed the victim, he said he was

not sure, but that he remembered being on the porch of the
 5

victim's home. After this conversation, the defendant and the

girl friend planned to go to Florida, where she had family. The

defendant ended up driving to Lawrence, where his cousin lived.

Shortly thereafter, the police arrived and arrested the

defendant. During a search of the defendant's vehicle, the

police found one live round of ammunition; a box of .22 caliber

ammunition; live rounds of .22 caliber ammunition in the pouch

of a sweatshirt; and full and empty beer cans that matched the

brand of beer the defendant had dropped on the porch.

At trial, the defendant testified and presented witnesses

in support of his mental impairment (diminished capacity)

defense.3 The defendant and his uncle testified extensively on

the defendant's drug and alcohol use, beginning when he was

thirteen years of age. In his later teen years, the defendant

was committed to the Department of Youth Services (DYS) because

of his increasing drug and alcohol use. Even after his release

from DYS custody, the defendant consistently used drugs and

alcohol until he was twenty-four or twenty-five years old. His

3
Although the mental impairment is often colloquially
referred to as "diminished capacity," it is well established
that "there is no 'diminished capacity' defense in this
Commonwealth." Commonwealth v. Companonio, 445 Mass. 39, 45 n.7
(2005), quoting Commonwealth v. Hardy, 426 Mass. 725, 729 n.5
(1998). However, "[i]n accordance with Commonwealth v. Gould,
380 Mass. 672, 673 (2005), a defendant 'may produce expert
testimony on the issue whether or not the impairment of his
mental processes precluded him from being able to deliberately
premeditate.'" Companonio, supra.
 6

drug use abated for a period of time after meeting and marrying

the victim.

The defendant acknowledged that, in February, 1998, he had

to vacate the marital home because, following an argument, the

victim obtained a restraining order against him. After staying

with his parents for a few weeks, the defendant left their home

and moved in with friend who lived in New Hampshire. During

this time, the defendant used alcohol and drugs, including

cocaine, prescription pills, sleeping pills, mushrooms, and

marijuana. In March, 1998, after the defendant met and began

dating his girl friend, his drug use "got out of control." The

defendant's longtime friend testified that because of the

restraining order and issues concerning the custody of the

defendant's son, the defendant was "upset," "confused," and

"stressing out," and began drinking more heavily, partying, and

using crack cocaine and other drugs.

A few months after meeting his girl friend, the defendant

moved with her into an apartment in Dorchester. While living

there, the defendant's job performance began to suffer, and he

was referred to the Employee Assistance Program. According to

the program counsellor, the defendant appeared depressed, upset,

and emotional. Although the defendant admitted that he drank

some alcohol during the week, the defendant did not mention his

drug use.
 7

The program counsellor referred the defendant to a

therapist, Dr. John D. Eckelman, who assisted the defendant in

obtaining paid stress leave from work. While on leave, the

defendant's drug use increased to the point where he was

drinking alcohol and using drugs all day. Although the

defendant was receiving his salary while on paid leave, he took

out a $20,000 loan against his retirement savings plan, using

the money to pay legal bills and rent for the Dorchester

apartment, and to purchase drugs.

In August, 1998, the defendant lost visitation rights with

his son and sunk deeper into drug and alcohol use. On August

31, 1998, the defendant went to a hospital emergency room, and

checked himself in to a detoxification facility known as NORCAP,

where he remained for approximately ten days. Shortly after

leaving the detoxification facility, however, the defendant

returned to his Dorchester apartment and resumed using drugs and

alcohol. He missed two appointments with his employee

assistance therapist. Although the defendant was supposed to

return to work in August, 1998, he failed to do so.

Throughout September, 1998, the defendant continued to use

drugs and alcohol in increasing amounts and contemplated

suicide. After exhausting his retirement loan funds, the

defendant was unable to pay rent and was evicted from his

apartment. The defendant and his girl friend moved in with the
 8

defendant's uncle in Richmond, New Hampshire. There, the

defendant continued to use drugs: crack cocaine, Klonopin,

Valium, painkillers, and alcohol. According to the defendant's

uncle, the defendant was "pretty well burned out" and "loaded"

in the days leading up to the murder.

Dr. Robert H. Joss, the defendant's retained expert and a

forensic psychologist, opined that the defendant's drug and

alcohol use on the day of the murder impaired his "ability . . .

to carry out planful action" at that time. Joss added that the

level of drugs and alcohol ingested by the defendant that day

would have impaired his executive functioning, and would be

"consistent with [the defendant] suffering blackouts."

In rebuttal, the Commonwealth called Dr. John D. Eckelman,

the therapist to whom the defendant was referred by his employee

assistance counsellor. Eckelman testified that during their

sessions, the defendant discussed his marital issues and

admitted to feeling "very stressed and pressured" in his

relationship with the victim. Although the defendant admitted

to Dr. Eckelman that he drank during the week, the defendant

apparently did not mention drug use. The Commonwealth also

called Dr. Malcolm P. Rogers, a forensic psychiatrist with

expertise in the effects of drug and alcohol consumption on the

central nervous system. After interviewing the defendant and

reviewing relevant records, Dr. Rogers opined that the defendant
 9

"did not have any significant cognitive deficits" on October 13,

1998, and that the defendant had the capacity to form the

specific intent kill the victim.

2. First motion for a new trial. In April, 2006, after

filing a timely notice of appeal in this court, the defendant

filed a motion for a new trial, claiming ineffective assistance

of counsel based on trial counsel's failure to "investigate or

develop a defense of lack of criminal responsibility stemming

from defendant's history of mental illness and from defendant's

drug and alcohol intoxication."4 We remanded the motion to the

Superior Court. Following a nonevidentiary hearing, the trial

judge denied the defendant's motion without specifically

addressing the merits of the ineffective assistance of counsel

claim.

Discussion. 1. Standard of review. Where a defendant has

been convicted of murder in the first degree, we review his

ineffective assistance of counsel claim under G. L. c. 278,

§ 33E, to determine whether counsel's action, or the failure to

act, 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.

4
The defendant filed a second motion for a new trial
claiming a violation of his Sixth Amendment right to a public
trial. He does not press the denial of this second motion for a
new trial in this appeal. Nonetheless, we have reviewed the
issue pursuant to our duty under G. L. c. 278, § 33E.
 10

Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Wright, 411

Mass. 678, 681-682 (1992), S.C., 469 Mass. 447 (2014). We focus

more broadly on whether there was error, rather than on the

"adequacy of counsel's performance." Id. at 682. If there was

error, the defendant will meet his burden to establish a

"substantial likelihood of a miscarriage" of justice only if the

error "was likely to have influenced the jury's conclusion."

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

Commonwealth v. Wright, supra. "Where a new trial is sought

based on a claim of ineffective assistance of counsel, the

burden of proving ineffectiveness rests with the defendant."

Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting

Commonwealth v. Montez, 450 Mass. 736, 755 (2008).

2. Trial counsel's failure to investigate and develop a

lack of criminal responsibility defense. a. Failure to

investigate. The defendant recounts a litany of claimed lapses

in making the case that counsel failed to investigate the

possibility that at the time of the murder, the defendant

suffered from a mental illness that would support and compel a

lack of criminal responsibility defense. In particular, he

claims that counsel erred in failing to investigate (1) the

defendant's self-reporting of a diagnosis, made some seventeen

years earlier, of mental illness (schizophrenia) and "organic

brain abnormality"; (2) facts contained in the homicide
 11

investigation reports suggesting that the defendant was mentally

ill;5 (3) a statement from his girl friend that the defendant, on

the day after the murder, told her "it had seemed like a bad

dream"; (4) the defendant's report to his investigator that he

was in a "dreamlike" state; (5) the defendant's statement to the

Commonwealth's examining psychiatrist that he remembered being

on the porch but he could not recall if it was a dream or

reality; (6) the defendant's statement during the competency

evaluation that he "hears screaming"; (7) a statement to the on-

call employee assistance therapist on August 31, 1998, that he

was having "crazy thoughts"; and (8) progress notes from the

Norfolk County jail where the defendant was being held pending

trial. These lapses, he argues, are of such moment that the

judge erred in denying his motion for a new trial. We disagree.

"Failure to investigate an insanity defense [falls] below

the level of competence demanded of attorneys, 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), S.C., 440 Mass. 245 (2003),

quoting Commonwealth v. Doucette, 391 Mass. 443, 458-459 (1984).

Thus, a duty to investigate an insanity defense arises when

counsel is aware of information suggesting at least the

5
The defendant does not specify, in his brief, the facts
upon which this contention is based.
 12

viability of a lack of criminal responsibility defense.

Roberio, supra at 280. We consider next the information

available to trial counsel and whether counsel acted reasonably

in response to that information.

The defendant's assertion that he had a history of mental

illness that warranted further investigation is not borne out by

the record. What counsel knew from the defendant and others he

consulted during his preparation for trial was not of sufficient

clarity or certainty to create a "reasonable doubt as to the

defendant's mental condition." Roberio, 428 Mass. at 280. At

best, counsel was aware that the defendant believed that he

suffered from a mental illness. The only evidence of this

condition was the defendant's self-reporting and his uncle's

claim that he suffered from mental illness and an "organic brain

abnormality," both discovered when he was committed to DYS and

hospitalized seventeen years earlier. Even if the evidence had

established that the defendant suffered from psychotic episodes

or some other mental illness when he was an adolescent,

seventeen years prior to the murder, counsel had no basis to

assume a connection between his mental condition as a teenager

and his mental condition at the time of the murder. See

Commonwealth v. Walker, 443 Mass. 213, 225-226 (2005) (suicide

attempt and military discharge occurring thirteen years before
 13

victim's killing insufficient to suggest potential insanity

defense).

In the motion for a new trial, the defendant claimed that

certain facts discovered during the homicide investigation

should have alerted counsel to the need to investigate a lack of

criminal responsibility defense. Because the defendant has not

informed us of those facts, we cannot determine whether, with

knowledge of those facts, counsel would be compelled to consider

the defense.

The statements from those persons in close contact with the

defendant, both before and after the murder, are scant evidence

that the defendant may have lacked criminal responsibility when

he killed the victim. These statements do not necessarily

signify mental illness. Instead, they may just as easily

manifest profound regret that a life has been taken in so brutal

a fashion.

Last, the defendant's reliance on progress notes from the

health services for the Norfolk County sheriff's office also

fails to advance his argument. The progress notes report that

the defendant was "quite anxious," had "excessive dwelling on

. . . problems," "low energy," "variable sleep," and "racing

thoughts on other problems."6 Similarly, a September, 1998,

6
Intake forms from the defendant's detoxification facility,
NORCAP, list a litany of symptoms as an option for "[c]hief
 14

discharge summary from NORCAP noted that the facility's

psychiatrists thought the defendant had "dysthymia"7 and "some

mood swings," and prescribed an antidepressant medication. The

report also noted, "[m]ini mental normal," "[n]eurological

negative." Notably, the discharge summary discharge disposition

reflected only follow up with a primary care physician. As we

have stated previously, "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." Spray, 467

Mass. at 473.

Given the dearth of information suggesting even the

possibility of a viable lack of criminal responsibility defense,

we discern no basis to conclude that trial counsel was obliged

to embark on a futile journey into the realm of an insanity

defense. See Commonwealth v. Lang, 473 Mass. 1, 15 (2015)

(Hines, J., concurring) (rejecting proposition that defense

counsel must "pursue a full scale mental evaluation in every

[c]omplaint," including but not limited to hallucinations,
delusions, severe agitation, manic behavior, and bizarre
behavior, but only "depression," "ETOH dependence," and "drug
dependence" were marked for the defendant.
7
Dysthymia is mild depression or a chronic, more persistent
depression that is not of the same severity as a major
depression.
 15

case where the facts or the defendant's background suggests only

a hint of a mental issue").

Even if counsel was obligated to investigate the

defendant's mental history, trial counsel was not culpably

derelict in handling the issue of the defendant's mental

condition at the time of the murder. Leading up to the trial,

the defendant was represented by three different attorneys.

Although these attorneys, both retained and appointed, did not

do all that the defendant demanded, they took appropriate and

necessary steps to investigate the defendant's mental history

and the possibility of a lack of criminal responsibility

defense. See Commonwealth v. Candelario, 446 Mass. 847, 857-858

(2006). Trial counsel had the benefit of these efforts in

preparing the defense offered at trial.

The defendant's first attorney retained Dr. Harold R.

Rosenblatt, a specialist in internal medicine and addiction

medication at the Spaulding Rehabilitation Hospital, to assess

the impact that drugs and alcohol may have had on the

defendant's mental state at the time of the murder. Although

privately retained, this attorney also filed a motion for funds

for electroencephalogram (EEG) and computerized tomography (CT)

testing of the defendant's brain functioning. Dr. Rosenblatt

did not testify at trial, but the first attorney's pretrial

disclosure indicated that Dr. Rosenblatt was prepared to opine
 16

on the effect of drugs and alcohol on the defendant's ability to

form a specific intent to kill.

The defendant's second attorney requested and received

authorization from the trial court judge to retain a

psychiatrist to examine the defendant.8 Prior to his withdrawal

from the case,9 this attorney, at the defendant's insistence,

also filed a motion for funds to hire a neurologist to evaluate

the defendant for his claimed "brain abnormality." In

advocating for the testing, defense counsel explained that

although no medical professional recommended the testing, he

sought funds because "[the defendant] feels and strongly

suspects that he suffers from a brain abnormality, which if

[sic] could be explored and shown to be true would then allow a

him a full-blown insanity defense." Noting that the defendant

8
Although the judge allowed the defendant's motion in the
amount of $5,000 in October, 2000, defense counsel represented
to the judge that the funds allotted were insufficient to hire a
psychiatrist. This attorney, who was personally selected by the
defendant for appointment by the court, withdrew from the case
after the defendant represented to the judge that the
relationship had broken down over the defense of the case.
9
The defendant filed an oral motion to "discharge" his
attorney due to a "breakdown of [the attorney-client
relationship] with regard [the defendant's] defense." The
attorney assisting the defendant's second defense attorney
stated that he was in communication with forensic psychologist
Dr. Robert Joss and a neuropsychologist to explore the impact
that prolonged substance abuse may have had on the defendant's
brain, but did not move forward with the process because he was
not primary counsel on the case. After several disruptions by
the defendant, the judge granted defense counsel's motion to
withdraw.
 17

presented no evidence (medical or otherwise), beyond his own

belief, that he suffered from an brain abnormality, the judge

denied the motion.

In December, 2000, the judge appointed the third attorney,

who eventually tried the case. At counsel's urging, the judge

ordered the defendant to undergo EEG testing and a CT scan.

Neither test yielded abnormal results. Beyond these tests,

trial counsel also took steps to have the defendant evaluated to

determine whether he was competent to stand trial. A few days

before the defendant's scheduled trial date, trial counsel filed

a motion for a competency evaluation pursuant to G. L. c. 123,

§ 15, and, in "an exercise of extreme caution," the judge

granted the motion.

After evaluating the defendant, the director of forensic

services at Bridgewater State Hospital determined that the

defendant was not suffering from a major mental illness and that

he was competent to stand trial. Other tests suggested that the

defendant was possibly "exaggerat[ing] or malingering."10 This

doctor noted:

"In my opinion, [the defendant's] behavioral
outbursts, bouts of uncooperativeness with attorneys,
insistency that his wife is not dead, and rigidity and

10
Indeed, while awaiting trial in pretrial detention, the
defendant told his girl friend during telephone conversations
that if he went to Bridgewater State Hospital, it would be
"easier," the food would be better, and he would be able to give
her a hug.
 18

stubbornness about these issue[s] make him [a] problematic
defendant, but not an incompetent one. His difficulties
are not born of a mental illness or mental defect, but
rather reflect a man who is desperately trying to avoid
reality, of which he is well aware."

Following a hearing on competency, the judge found the defendant

competent to stand trial.

Considering the totality of the information available to

counsel, the record is devoid of evidence that even remotely

suggests a more comprehensive investigation would have revealed

evidence supporting an insanity defense. See Walker, 443 Mass.

at 225-226. Accordingly, trial counsel's decision to forgo

further investigation of a lack of criminal responsibility

defense based on mental illness was not error.

In his motion for a new trial, the defendant argued that he

was prejudiced by counsel's failure to investigate the

information that counsel would have discovered if the claimed

lapses had not occurred. Rather than showing prejudice,

however, this information shows that it would not have made a

difference in the viability of a lack of criminal responsibility

defense. A July, 1981, DYS psychiatric evaluation noted that

the defendant described "recurrent experience of

depersonalization" and "paranoid delusions," but also noted that

the defendant's "[r]eality testing was intact and there were no

indications of thought disorder." Although the evaluation

concludes that the defendant was "bordering on psychotic
 19

decompensation" and recommended that he undergo further

psychiatric treatment, nothing in the evaluation suggests that

the defendant was ever diagnosed with a mental illness.

Similarly, absent from the September, 1981, follow up DYS report

detailing the defendant's treatment plan is the suggestion that

the defendant suffered from a mental illness.

The defendant also points to certain DYS records indicating

that he was an inpatient at a hospital in August, 1981.11 In his

affidavit, the defendant asserts that the EEG test administered

at the hospital he was sent to by DYS "indicated possible

schizophrenia." However, as is clear from Dr. Joss's affidavit,

EEG testing will not show schizophrenia. Therefore, the records

would have provided little if any insight into whether the

defendant suffered from such a mental illness, evidence that

could have triggered an obligation to further investigate the

issue. See Roberio, 428 Mass. at 279-280.

The defendant's reliance on seventeen year old DYS and

related hospital records is not persuasive. At most, the

records reflect only a suggestion that the defendant may have

suffered from a mental illness as an adolescent. The defendant

was thirty-four at the time of the murder. Moreover, the

defendant's EEG and CT scans showed no abnormalities. Beyond

11
Although this hospital confirmed that the defendant was
an inpatient, the facility was unable to locate his charts.
 20

indicating that the defendant appeared to exhibit signs of

depression and to be upset, tired, and emotional, neither the

employee assistance counsellor nor Dr. Eckelman's testimony

suggested that the defendant was suffering from a mental

illness.

3. Reasonableness of trial counsel's strategic decision.

Where the claimed ineffectiveness is the result of a tactical

decision of counsel, the defendant will prevail only if he

demonstrates that counsel's tactical choice was "manifestly

unreasonable" (citation omitted). Kolenovic, 471 Mass. at 674.

As a threshold matter, we do not doubt that trial counsel's

decision to forgo a lack of criminal responsibility defense in

favor of a mental impairment defense was a tactical choice. In

January, 2001, trial counsel filed a notice of intent to present

an insanity defense. However, at trial, counsel noted, "I

deliberately stayed as far away from the issue of insanity as I

could" because "I do not know if I have it," and eventually

chose to withdraw that defense.

Based on what we have said about the lack of evidentiary

support for a lack of criminal responsibility defense, we are

persuaded that counsel's strategic decision was not manifestly

unreasonable. "[A] decision not to pursue an insanity defense

for tactical reasons . . . is not tantamount to ineffective

assistance of counsel." Spray, 467 Mass. at 473.
 21

Two principles guide the "manifestly unreasonable" test.

First, "we evaluate the [strategic or tactical] decision at the

time it was made, and make 'every effort . . . to eliminate the

distorting effects of hindsight.'" Commonwealth v. Glover, 459

Mass. 836, 843 (2011), quoting Commonwealth v. Fenton F., 442

Mass. 31, 38 (2004). Second, "[s]ubstantively, [o]nly strategy

and tactics which lawyers of ordinary training and skill in

criminal law would not consider competent are manifestly

unreasonable" (quotations omitted). Kolenovic, 471 Mass. at

674, quoting Commonwealth v. Pillai, 445 Mass. 175, 186-187

(2005).

Although there was little evidence that the defendant

suffered from a mental illness at the time of the murder, there

was substantial evidence of the defendant's alcohol and drug

use. Defense counsel had information from the defendant, a

close relative, and close friends regarding his history of drug

and alcohol use. Trial counsel also had access to records from

the defendant's stay at NORCAP and from the counselling sessions

with Dr. Eckelman. Indeed, other than a mental impairment

defense based on the defendant's drug and alcohol use, counsel

had no other option.

As we have stated, "reasonableness does not demand

perfection." Kolenovic, 471 Mass. at 674. Rather, "the

manifestly unreasonable test . . . is essentially a search for
 22

rationality in counsel's strategic decisions, taking into

account all the circumstances known or that should have been

known to counsel in the exercise of his duty to provide

effective representation." Id. at 674-675. "The deference we

give to defense counsel's strategic judgment in determining

whether it was manifestly unreasonable reflects the strong

presumption that counsel knows best how to defend a client."

Glover, 459 Mass. at 843. Although trial counsel's strategic

choice failed to yield a favorable disposition for the

defendant, nevertheless, we cannot conclude that it was

manifestly unreasonable or inconsistent with what "'lawyers of

ordinary training and skill in criminal law' would deem to be

competent." Kolenovic, 471 Mass. at 675, quoting Pillai, 445

Mass. at 186-187.

4. Relief pursuant to G. L. c. 278, § 33E. In his appeal,

the defendant raises only the ineffective assistance of counsel

claim discussed above. Nevertheless, pursuant to our

obligations under G. L. c. 278, § 33E, we examine the "whole

case for its consideration of the law and the evidence." G. L.

c. 278, § 33E. See Commonwealth v. Brown, 376 Mass. 156, 166-

167 (1978).

a. Ineffective assistance of counsel in the presentation

of the mental impairment defense. Although the defendant did

not argue in his motion for a new trial that counsel's
 23

presentation of the mental impairment defense based on drug and

alcohol use was inadequate, he asserts the point indirectly in

this appeal from the denial of the first motion for new trial.

Nonetheless, we consider the issue in our G. L. c. 278, § 33E,

review in which the inquiry is whether counsel's performance in

presenting the mental impairment defense resulted in a

substantial likelihood of a miscarriage of justice.

We conclude that the defendant has failed to demonstrate

that better preparation of the mental impairment defense would

have produced more persuasive testimony from Dr. Joss or more

convincing evidence of mental impairment. In analyzing defense

counsel's presentation of the defense of mental impairment, we

"evaluate the conduct from counsel's perspective at the time."

Lang, 473 Mass. at 21 (Lenk, J., concurring), quoting Strickland

v. Washington, 466 U.S. 668, 689 (1984).

At trial, defense counsel presented the testimony of the

defendant's uncle, with whom the defendant lived prior to the

murder, and the defendant's longtime friend, both of whom

testified to the defendant's extensive and consistent history of

drug and alcohol use. Trial counsel also vigorously cross-

examined the defendant's girl friend regarding the defendant's

history of drug and alcohol use. Additionally, the defendant

testified at length to his drug and alcohol use both

historically and on the day of the victim's killing.
 24

Beyond the defendant's testimony and the testimony of the

lay witnesses, trial counsel introduced expert testimony from

Dr. Joss, a forensic psychologist experienced in evaluating

individuals in the area of criminal responsibility and

competency to stand trial. In support of his claim of

ineffective assistance of counsel, the defendant points out that

defense counsel waited until after trial had begun to contact

Dr. Joss and failed to provide him pertinent written records.

Further, the defendant notes that Dr. Joss interviewed him a

mere four days before Dr. Joss testified. Although we are

troubled by trial counsel's unorthodox approach of preparing Dr.

Joss for trial at what can unarguably be described as the

eleventh hour, ultimately the issue is not what it took to

accomplish the task but whether it was accomplished.

Notwithstanding trial counsel's ill-advised timing with respect

to contacting Dr. Joss, the testimony as to the defendant's

mental impairment on the day of the murder was adequate for its

purpose.

Dr. Joss opined that, based on the various substances that

the defendant ingested, including large quantities of alcohol,

prescription medications, crack cocaine, and marijuana, the

defendant was "impaired in his ability to plan [and] to carry

out planful action" on October 13, 1998. Moreover, Dr. Joss

opined that the amount of drugs and alcohol the defendant
 25

ingested on the night of the victim's killing was "consistent

with suffering blackouts." Importantly, Joss explained to the

jury the difference between the effect of drugs and alcohol on

cognitive function versus motor function, a topic on which the

Commonwealth focused in its cross-examination. Specifically, he

explained that a person may be able to maintain motor

coordination "reasonably well," yet be deficient in other

aspects of cognitive function. Thus, Dr. Joss opined that

although a person's mental state may be impaired, he may still

retain the physical coordination to move or travel.

To arrive at his opinion Dr. Joss interviewed the defendant

for ninety minutes and examined myriad written materials,

including the defendant's thirty-one page narrative of his drug

and alcohol abuse throughout his life, Dr. Rogers's two

evaluations, records from a "private, live-in school" where the

defendant resided for a period of time as an adolescent, and

medical records from the defendant's visit to a hospital

emergency room visit in August, 1998. Moreover, the record

suggests that even though trial counsel did not ultimately

secure Dr. Joss as an expert until midtrial, trial counsel had

been in contact with Joss well before the trial commenced.12

12
In fact, Dr. Joss was among the specialists with whom the
defendant's second set of trial counsel communicated in order to
explore the issue whether the defendant suffered from an organic
 26

Given Dr. Joss's testimony as to the defendant's mental

state at the time of the victim's killing, along with the

extensive lay witness testimony as to the defendant's use of

drugs and alcohol, we conclude that trial counsel's preparation

and presentation of the mental impairment defense was not

inadequate such that it was likely to have influenced the jury's

verdict.

b. Closed court room. We have considered the issue raised

in the defendant's second motion for a new trial and "conclude

that the motion judge properly determined that the defendant had

not borne his burden of demonstrating that the court room was

closed during any portion of the jury selection, because the

defendant offered no evidence indicating that the court room was

closed by any specific order or that court officers ever told

anyone to leave." Commonwealth v. Drayton, 473 Mass. 23, 31

(2015). Moreover, the defendant failed to object to the alleged

court room closure during trial and declined to raise the issue

on direct appeal, therefore it is deemed procedurally waived.

See Commonwealth v. Penn, 472 Mass. 610, 622 (2015), cert.

denied, 136 S. Ct. 1656 (2016), quoting Commonwealth v.

LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct.

317 (2015).

brain syndrome due to a period of prolonged substance abuse.
See note 9, supra.
 27

c. The trial judge's comments to defense counsel. We also

briefly address the trial judge's interactions with defense

counsel in the presence of the jury. On two occasions the judge

made comments during trial that, according to defense counsel,

suggested to the jury that the judge had an opinion in the case

or negatively characterized defense counsel's behavior. As we

have stated, "a judge need take no vow of silence. He is there

to see that justice is done, or at least to see that the jury

have a fair chance to do justice. . . . The judge ought not let

the jury be diverted from the real issue" (citation omitted).

Commonwealth v. Haley, 363 Mass. 513, 519 (1973). Based on our

review of the transcript, we conclude that the trial judge

adequately "[trod] the narrow path that lies between

meddlesomeness . . . and ineffectiveness" (citation omitted).

Id. at 519. Throughout the trial, the judge was generally

respectful and patient with both parties, reserving most

colloquies between the parties and the court for sidebar.

Although the judge may have gently rebuked defense counsel on

occasion, we conclude that the comments did not create a

substantial likelihood of a miscarriage of justice. See id. at

521 ("A judge may warn or rebuke counsel in a proper case").

Moreover, in an abundance of caution, the judge twice gave
 28

curative instructions reminding the jury that he was neutral on

the issue and had no opinion regarding the facts of the case.13

Conclusion. Having reviewed the entire record and the

briefs on appeal, we see no reason to reduce the verdict or

grant a new trial. Accordingly, we affirm the defendant's

convictions and the orders denying his motions for a new trial.

So ordered.

13
The trial judge instructed, "If I have said or done
anything to cause you to believe that I have any opinion
concerning the facts in this case, you are mistaken because I am
totally neutral on this issue. It is your decision, not mine,
to determine whether the Commonwealth has met its burden of
proof."