Commonwealth v. Gulla , 476 Mass. 743 ( 2017 )

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revision and are superseded by the advance sheets and bound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-11361
COMMONWEALTH vs. ROBERT GULLA.
Middlesex. January 10, 2017. - April 5, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, & Budd, JJ. 1
Homicide. Constitutional Law, Assistance of counsel, Fair
trial. Practice, Criminal, Assistance of counsel, Argument
by counsel, Instructions to jury, Capital case.
Indictments found and returned in the Superior Court
Department on March 4, 2010.
The cases were tried before Thomas P. Billings, J., and a
motion for a new trial, filed on October 29, 2014, was heard by
him.
Stephen Paul Maidman for the defendant.
Jamie Michael Charles, Assistant District Attorney (Casey
E. Silvia, Assistant District Attorney, also present) for the
Commonwealth.
BUDD, J. The defendant, Robert Gulla, was convicted of
murder in the first degree of the victim on the theories of
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
deliberate premeditation and extreme atrocity or cruelty. 2 In
this appeal, 3 the defendant asserts that he was denied effective
assistance of counsel and a meaningful opportunity to present a
complete defense, as well as denied a fair trial based on the
judge's failure to give certain jury instructions. The
defendant also seeks relief under G. L. c. 278, § 33E. After
full consideration of the record and the defendant's arguments,
we affirm the defendant's convictions and the denial of his
motion for a new trial, and decline to grant extraordinary
relief pursuant to G. L. c. 278, § 33E.
Background. We summarize the evidence that the jury could
have found, reserving certain details for discussion of specific
issues. On January 23, 2010, the defendant beat, strangled,
stabbed, and shot the victim, killing her. The victim's
homicide was the culmination of a short but violent relationship
between the two. The defendant met the victim, who was
attending a State university, in early September of 2009 at a
college party; the defendant was not a student there. Soon
thereafter they began a dating relationship.
2
The defendant also was convicted of violation of an abuse
prevention order.
3
This court consolidated the appeal from the denial of his
motion for a new trial due to ineffective assistance of counsel
with his direct appeal.
3
On September 25, 2009, an altercation between the victim
and the defendant in her dormitory led campus police to escort
the defendant off campus and issue a no-trespass order.
Approximately one and one-half weeks later, the victim lodged a
complaint with police after the two had an argument and the
defendant pushed her out of his truck and drove away, leaving
her stranded on the side of the road.
They spent less time together after that, and the victim
began dating a fellow student; however, she continued to see the
defendant. One night in early December the victim was visiting
with the defendant at his home where he lived with his mother
and brother. After the two argued loudly, the defendant punched
the victim in the stomach and took her cellular telephone to
review its contents. He later smashed it and threw it into the
woods near his house. The defendant's mother telephoned the
police, and he subsequently was arrested.
On January, 19, 2010, the defendant had an argument via
telephone with the victim because she was spending time with her
fellow student. The victim thereafter applied for and received
a temporary restraining order against the defendant.
Despite the restraining order, three days later, the
defendant borrowed his mother's automobile to pick the victim up
and drive her to his house to spend the night. The next
evening, the defendant's mother found the two of them covered in
4
blood lying face down, side by side on the floor of the
defendant's basement bedroom. First responders determined that
the victim was deceased: her body was severely bruised and
swollen, and she had several stab wounds, including to her
throat. The injuries to her face, including bruises and a
pellet gunshot wound between the eyes, rendered her
unrecognizable. By contrast, the defendant regained
consciousness and his wounds were less severe. He had a large
cut on his left wrist and a pellet gunshot wound to the temple,
consistent with self-inflicted wounds; he also had superficial
cuts on his hand, consistent with forceful stabbing motions, and
an area at the back of his head that first responders described
as filled with fluid feeling "like a sponge." 4 Nearby was a copy
of the temporary restraining order and what appeared to be a
suicide note admitting his culpability for the homicide. 5
Discussion. 1. Ineffective assistance of counsel. At
trial, defense counsel pursued a diminished capacity defense.
He presented a psychiatrist who testified that the defendant
suffered from a mental impairment that made him incapable of
forming the requisite intent for murder in the first degree.
The defendant claims that his trial attorney was ineffective
4
The defendant told first responders that the victim bit
him on the back of the head.
5
The note read: "To my family I love you all This is the
last thing I wanted to happen but it just did."
5
because the attorney (1) failed to raise a lack of criminal
responsibility defense, which would have absolved the defendant
of culpability altogether; (2) failed to request a lack of
criminal responsibility instruction; and (3) failed to
adequately argue the theory that counsel did pursue, diminished
capacity, in his closing argument. The defendant unsuccessfully
made the same claims in his motion for a new trial.
Rather than evaluating an ineffective assistance claim
under the traditional standard of Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), 6 in cases of murder in the first degree, we
apply the standard of G. L. c. 278, § 33E, to determine whether
there was a substantial likelihood of a miscarriage of
justice. Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992),
S.C., 469 Mass. 447 (2014). See Commonwealth v. LaCava, 438
Mass. 708, 712-713 (2003), quoting Commonwealth v. Harbin, 435
Mass. 654, 656 (2002). More particularly, we determine whether
there was an error in the course of the trial by defense counsel
(or the prosecutor or the judge) "and, if there was, whether
that error was likely to have influenced the jury's
conclusion." Wright, supra at 682. Here, the defendant has not
6
Under Saferian, 366 Mass. at 96, the standard is whether
an attorney's performance fell measurably below that which might
be expected from an ordinary fallible lawyer and, if so, whether
such ineffectiveness has likely deprived the defendant of an
otherwise available substantial defense.
6
met his burden to show that there was a serious failure by his
trial counsel.
a. Lack of criminal responsibility defense. The defendant
claims that the brutal nature of the crime, his attempted
suicide afterward, and his mental condition made lack of
criminal responsibility a viable, complete defense to the murder
charge. 7 Consequently, he argues, trial counsel was ineffective
for failing to pursue a lack of criminal responsibility defense,
and for failing to request a jury instruction on it.
The decision of defense counsel regarding the best defense
to pursue at trial is a tactical one and will not be deemed
ineffective unless manifestly unreasonable when
made. Commonwealth v. Vao Sok, 435 Mass. 743, 758 (2002).
Here, the defendant has not shown that his trial counsel's
tactical decision was manifestly unreasonable. At a hearing on
the motion for a new trial, trial counsel testified that he
considered the lack of criminal responsibility defense but
decided against it because he was unable to find an expert who
would testify that the defendant lacked criminal responsibility
7
"A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
he lacks substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law." Commonwealth v. LaCava,
438 Mass. 708, 713 (2003), quoting Commonwealth v. McHoul, 352
Mass. 544, 546-547 (1967), S.C., 365 Mass. 465 (1974) and 372
Mass. 11 (1977) and 445 Mass. 143 (2005), cert. denied, 547 U.S.
1114 (2006).
7
due to a mental disease or defect. 8 The motion judge, who was
also the trial judge, made detailed findings including that,
understanding that expert testimony is not necessary to pursue a
lack of criminal responsibility defense, see Commonwealth
v. Monico, 396 Mass. 793, 797-798 (1986), trial counsel chose
not to assert, or request an instruction for, a defense that his
own expert did not support and that could undercut the
diminished capacity defense, which he did assert and which had a
basis in the evidence. The judge concluded that this was not
ineffective assistance. We agree. See Commonwealth v. Cutts,
444 Mass. 821, 828 (2005); LaCava, 438 Mass. at 714-
715; Commonwealth v. Genius, 387 Mass. 695, 697-699 (1982),
S.C., 402 Mass. 711 (1988). See also Commonwealth v. Mosher,
455 Mass. 811, 827 (2010) ("Many decisions of defense counsel
that are characterized in hindsight as errors may have been
reasonable tactical or strategic decisions when made . . .").
b. Closing argument. The defendant contends that his
trial counsel's closing argument was constitutionally
ineffective because counsel failed to argue diminished capacity
forcefully enough to the jury. We conclude, as did the judge
below, that this claim is without merit.
8
The defendant's trial counsel sought opinions from three
experts, two psychologists and a psychiatrist, none of whom
found that the defendant met the legal criteria for lack of
criminal responsibility.
8
While "[w]ith hindsight, one can always craft a more
eloquent and forceful closing argument," trial counsel covered
all the necessary points. Commonwealth v. Denis, 442 Mass. 617,
627 (2004). He argued that although the two experts on the
opposing sides of the case diagnosed the defendant differently,
they both agreed that the defendant suffered from mental illness
from an early age. The fact that the defendant had trouble
"connecting the dots" was a theme throughout counsel's closing.
He emphasized the unusual way the defendant handled common,
albeit stressful, situations as compared to a "normal person."
He also underscored, more than once, the defendant's issues with
alcohol. Finally, he specifically asked the jury to consider
that, given the defendant's mental impairment and intoxication,
he was unable to form the intent for murder in the first degree.
"[S]uggesting ways in which counsel's closing argument might
have been stronger does not make out a claim of ineffective
assistance." Id. at 628.
2. Jury instructions. a. Lack of criminal responsibility
instruction. The defendant claims that he was denied a
meaningful opportunity to present a complete defense because the
trial judge did not instruct the jury on lack of criminal
responsibility, claiming that the judge should have done so
despite the fact that the defendant's trial counsel did not
request such an instruction. The argument fails.
9
Although we have stated that it is best to err on the side
of giving a lack of criminal responsibility instruction where
the "appropriateness of [such an instruction] is marginal," we
did so in a case where the defendant requested the
instruction. Commonwealth v. Mattson, 377 Mass. 638, 642, 644
(1979). See Monico, 396 Mass. at 802-803. Here, as
discussed supra, the defendant's trial counsel made a tactical
decision not to pursue a lack of criminal responsibility
defense, and given the paucity of evidence to support such a
defense, it would arguably have been error for the judge to have
nevertheless, sua sponte, instructed the jury on that theory.
See Commonwealth v. Norris, 462 Mass. 131, 144 (2012) (where
evidence suggests defense would be unconvincing, judge sua
sponte issuing instruction on that defense "might well . . .
interfere[] with the defendants' right to present their chosen
defenses").
b. Manslaughter instruction. The defendant requested a
voluntary manslaughter instruction on the theory that he killed
the victim during a fight (pointing to evidence of the injury to
the back of his head) or, alternatively, that he killed the
victim upon learning anew that she had been unfaithful to him.
See Commonwealth v. Valentin, 474 Mass. 301, 311 (2016),
quoting Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006)
("Where an instruction on voluntary manslaughter is requested, a
10
trial judge should so instruct the jury if any view of the
evidence would warrant a finding that the unlawful killing arose
not from malice, but 'from . . . sudden passion induced by
reasonable provocation, sudden combat, or excessive force in
self-defense'"). The judge denied the request. The defendant
objected at the time and now claims that the denial deprived him
of his right to a fair trial. We review the ruling for
prejudicial error, and find none. See Commonwealth v. Kelly,
470 Mass. 682, 687-688 (2015).
The evidence at trial did not support a finding of sudden
passion induced by reasonable provocation, sudden combat, or
excessive use of force in self-defense. Although the defendant
told first responders that the victim bit him, there is no
evidence that she initiated physical contact. See Commonwealth
v. Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come
from the victim").
As for the theory that the defendant was provoked by the
victim's infidelity, "[v]oluntary manslaughter based on heat of
passion requires evidence that there was 'provocation that would
have been likely to produce in an ordinary person' such a state
of mind as would overcome reflection or restraint and that the
provocation 'actually did produce such a state of mind in the
defendant.'" Commonwealth v. Tassinari, 466 Mass. 340, 355
(2013), quoting Commonwealth v. Sirois, 437 Mass. 845, 854
11
(2002). Here, given the evidence that the defendant had prior
knowledge of the victim's relationship with her fellow student,
he cannot claim a sudden discovery that would serve as
reasonable provocation. See Commonwealth v. LeClair, 429 Mass.
313, 316-317 (1999). There was no error.
3. Review under G. L. c. 278, § 33E. We have reviewed the
briefs and the entire record and discern no reason to reduce the
degree of guilt or grant a new trial pursuant to our powers
under G. L. c. 278, § 33E.
Judgments affirmed.