Petition for Writ of Certiorari — Quillie Merle Spray, Petitioner v. Kelly A. Ryan, Superintendent, State Correctional Institution at Shirley

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Case: 17-1814

Document: 00117403122

Page: 1

Date Filed: 02/19/2019

Entry ID: 6233616

United States Court of Appeals

For the First Circuit

_____________________

No. 17-1814

QUILLIE MERLE SPRAY,

Petitioner, Appellant,

KELLY A. RYAN, Superintendent of MCI - Shirley,

Respondent, Appellee.

__________________

Before

Howard, Chief Judge,

Lynch and Barron, Circuit Judges.

__________________

JUDGMENT

Entered: February 19, 2019

Petitioner-Appellant Quillie Merle Spray appeals from the order of the district court

denying his petition for habeas corpus, filed pursuant to 28 U.S.C. §2254. We review the district

court's denial of habeas relief de novo. Moore v. Dickhaut, 842 F.3d 97, 99 (1st Cir. 2016). We

have carefully reviewed all of the parties' submissions, and the record. Essentially for the reasons

set forth in the magistrate judge's Report and Recommendation dated June 1, 2017 (and adopted

by the district court judge on August 8, 2017), we affirm the order denying the petition.

The judgment of the district court is affirmed. See 1st Cir. R. 27.0(c).

Spray's Motion for Appointment of Counsel is denied.

So ordered.

By the Court:

Maria R. Hamilton, Clerk

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Quille Merle Spray

Petitioner

CIVIL ACTION

Kelly Ryan

NO. 1:14-cv-13877-PBS

Respondent

ORDER OF DISMISSAL

SARIS, C.J.

In accordance with Court’s Order dated August 8, 2017 adopting Report and

Recommendation and Denying Petitioner’s Writ of Habeas Corpus (28:2254) ( Docket

No. 1) , it is hereby ORDERED that the above-entitled action be and hereby is

dismissed.

By the Court,

8/9/2017

/s/ C. Geraldino-Karasek

Date

Deputy Clerk

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

QUILLIE MERLE SPRAY,

)

Petitioner,

)

KELLY RYAN,

)

Superintendent

)

Respondent.

)

____________________________________)

Civil Action No. 1:14-cv-13877-PBS

REPORT AND RECOMMENDATION ON

PETITION FOR WRIT OF HABEAS CORPUS

June 1, 2017

BOAL, M.J.

On October 16, 2014, Quillie Merle Spray II (“Spray”), who was convicted of first

degree murder and is currently serving a life sentence in a Massachusetts correctional facility,

petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Docket No. 1 (the

“Petition”). Respondent Kelly Ryan (“Respondent”) opposes the Petition. Docket No. 22.

This case arose from the stabbing death of Sherylann Miller on December 9, 2000.

Spray, who worked as a tiler at the restaurant Miller managed, killed her after a physical

altercation in the back room of the restaurant. Spray raises one claim in the Petition, alleging

that his trial counsel did not provide him with constitutionally required effective assistance of

counsel. Specifically, Spray contends that his counsel failed to investigate and present a mental

health defense at trial. Docket No. 18 at p. 1; Docket No. 1 at p. 5.

For the reasons set forth below, I recommend that the District Judge DENY the Petition.

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PROCEDURAL HISTORY

Spray was charged and tried on four separate counts: (1) murder; (2) assault and battery

by means of a dangerous weapon; (3) possession of a firearm in a motor vehicle; and (4)

possession of ammunition without a firearm identification card. Supplemental Answer (“S.A.”),

Ex. 1, p. 10. On January 21, 2003, after a two-week trial at which Spray testified, a jury found

Spray guilty of first-degree murder by reason of extreme atrocity or cruelty, and assault and

battery by means of a dangerous weapon. S.A., Ex. 24. After the jury rendered the verdict, the

trial judge dismissed the assault and battery count as merged with the first-degree murder count.

Id. at p. 15. The jury returned not guilty verdicts on the firearm and ammunition counts. Id. at

pp. 4-5.

On July 16, 2010, Spray filed a second motion for a new trial,1 and raised the same claim

that forms the basis of this Petition—ineffective assistance of counsel. S.A., Ex. 1, p. 8; S.A.,

Ex. 6. On September 18, 2012, the trial court denied Spray’s second motion for a new trial, and

on October 25, 2012, Spray filed a notice of appeal of the order denying his second motion for a

new trial. S.A. Ex. 1, p. 10; S.A. Ex. 10. On January 7, 2013, the SJC consolidated Spray’s

direct appeal, as well as appeals from his motions for a new trial, and on March 13, 2014,

affirmed Spray’s conviction and the orders denying his two motions for a new trial. Spray, 467

Mass. 456, 477 (2014); S.A. Ex. 17.

On October 16, 2014, Spray filed the instant Petition. Docket. No. 1. On January 6,

2015, Respondent filed an answer. Docket No. 12. On March 16, 2015, Spray filed his

On February 28, 2007, pursuant to Mass. R. Crim. P. 30(b), Spray filed his first motion for a

new trial on the ground that two eyewitnesses had recanted pre-trial affidavits and trial

testimony. S.A., Ex., 1, p. 7; S.A. Ex. 3. On June 22, 2007, the trial court denied Spray’s first

motion for a new trial, and on February 13, 2003, Spray filed a notice of appeal of the order

denying his motion. S.A., Ex. 5. The claims raised in Spray’s first motion are not raised in the

Petition. See S.A., Ex. 3; Docket No. 18.

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Memorandum of Law in Support of Petition for Writ of Habeas Corpus. Docket No. 18. On

July 27, 2015, Respondent filed her Opposition. Docket No. 22.

II.

FACTUAL BACKGROUND2

The SJC found the following facts:

a. Facts.

Based on the evidence at trial, the jury could have found the following. In

December, 2000, a fast-food restaurant was under construction in Clinton.

The defendant, his brother Gary Spray, his sister-in-law Monica Spray, and

his cousin Thomas Barron, who lived in Oklahoma and all worked together

on tiling jobs there, were hired to install tile in that restaurant. The

defendant, Gary, Monica, and occasionally Thomas had worked in similar

jobs across the country; Gary and Monica often worked as a team on such

jobs, while the defendant worked by himself.

Gary, Monica, and Thomas initially were solely responsible for the

December 2000, job in Clinton. However, they were delayed in starting the

1,500-mile drive to Massachusetts, and the defendant decided to travel to

Clinton as well. He drove to Massachusetts alone, arriving in Clinton in the

early morning hours of Thursday, December 7, 2000. Gary, Monica, and

Thomas arrived in a separate vehicle late that afternoon; their arrival was

delayed by an unscheduled stop in St. Louis, where they had “a little drug

party” involving mostly methamphetamines. While at the job site on

Friday, the defendant and Gary spoke with the general contractor, who

observed that they were already behind schedule.

The victim, Sherylann Miller, was also present at the construction site where

the defendant and his relatives were working. Miller was the general

manager of the future restaurant, and was in the process of accepting job

applications and conducting interviews for employment there. Since the

heating system had yet to be installed, the area was being kept warm by

propane heaters. At one point, the defendant heard the victim say that she

was cold, and suggested that they move closer to the heater; she also

apologized to the defendant when she stepped on freshly laid tile. The two

had no prior relationship and did not interact any further that day.

At approximately 4 P.M. on Saturday, December 9, the defendant, Gary,

Monica, and Thomas were working at the job site when the defendant

walked out the door. The other three continued to install tile until they heard

the victim “hollering,” “No, don’t!” and “Stop, stop!” Monica turned

Absent clear and convincing evidence to the contrary, the recitation of the facts by the SJC is

presumed to be correct. See 28 U.S.C. § 2254(e)(1); Gunter v. Maloney, 291 F.3d 74, 76 (1st

Cir. 2002); Evans v. Thompson, 518 F.3d 1, 3 (1st Cir. 2008).

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around to see the defendant “wrestling” with the victim and “punching on

her” while “dragging her backwards.” Thomas saw the defendant holding

the victim “around the waist or kind of in a bear hug.”

Monica began “jumping up and down and hitting herself in the chest,” and

said to Gary, “It’s Merle, it’s Merle.” Gary turned around to see the

defendant “punching [the victim] in the back.” Gary ran to the defendant,

pushed him against the wall, and asked, “What the fuck are you doing?

What are you doing to this lady?” The defendant responded, “We’ll tell

them somebody else done it.” By that time, the victim had fallen to the floor

and a large amount of blood had begun to flow from her body. Gary directed

Monica and Thomas to telephone for help. Monica ran to a nearby gasoline

station and the attendant there telephoned 911. The defendant walked to the

front of the restaurant, saying, “Let’s get this tile laid so we can get out of

here and go to the house.”

Clinton police responded within two minutes of receiving the 911 call.

They encountered the family in various states of shock outside the

restaurant. Monica was “hysterical”; Thomas was pacing nervously and

crying; and Gary was standing over the defendant, yelling repeatedly,

“What the fuck did you do that for?” The defendant was sitting on the curb

outside the restaurant, acting “very calm” and not seeming at all upset.

Monica pointed to the defendant and said, “He stabbed her, he did it.”

Thomas and Gary also indicated to police that the defendant had stabbed

the victim. In response to questions regarding the whereabouts of the

weapon, Gary stated that the defendant had had a knife, and that it had a

green handle and a blade approximately five inches in length.

Police found the victim lying on the floor in the back of the restaurant with

a large pool of blood around her head. The victim was transported to a local

hospital, and then transferred via helicopter to a hospital in Worcester,

where she was pronounced dead in the early morning hours of the following

day.

Shortly after police arrived and his relatives identified him as the one who

had stabbed the victim, the defendant was arrested, handcuffed, and placed

in a police cruiser. Gary continued to yell at the defendant while he sat in

the cruiser, “What are you doing, you didn’t even know her.” Monica was

permitted to change clothes and throw out the clothing she had been

wearing, as she had soiled herself.

The defendant, Gary, Monica, and Thomas were transported in separate

police cruisers to the Clinton police station. There, Gary, Monica, and

Thomas each gave a written statement while sitting in separate rooms;

police observed that none appeared to be under the influence of drugs or

alcohol. Gary again provided a description of the weapon used in the attack,

and said that he had seen the defendant kneel down beside a bucket at the

scene. Officers located the bucket, filled with dirty water and plaster or

mud, and retrieved a green-handled knife with a serrated edge from it; a red4

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handled knife was also recovered from the scene. The green-handled knife

was brought back to the police station where Gary identified it as belonging

to the defendant.

While the defendant was booked and fingerprinted, officers observed a cut

on his left hand. A Clinton police officer and a State trooper interviewed

the defendant after reading him the Miranda rights and presenting him with

a card listing those rights, which he initialed. The defendant agreed to speak

with police, and to allow police to transcribe his statement. During the

interview, the defendant denied having had anything to do with the

stabbing; police described him as “calm, cool, collected, very cooperative,”

and said that he did not appear to be under the influence of drugs or alcohol.

Later that evening, the defendant’s vehicle was towed; an inventory search

produced an unlicensed firearm, ammunition, and spent shell casings.

At approximately 2 A.M. Sunday morning, police learned that the victim

had died as a result of her injuries, and booked the defendant on the

additional charge of murder. Later that afternoon, after advising him of the

Miranda rights, and procuring a waiver of his right to a prompt arraignment

pursuant to Commonwealth v. Rosario, 422 Mass. 48 (1996), police again

interviewed the defendant. He denied knowing anything about the source

of the victim’s injuries, but, in response to repeated questioning, eventually

stated, “If I did do it, I didn’t mean to kill her.”

An autopsy revealed that the victim died as a result of six stab wounds to

the neck, and that her injuries were consistent with having been stabbed

from behind. Two of the wounds severed her spinal cord. Forensic testing

established that a sample from a blood stain on the defendant’s shirt cuff

matched the victim’s blood. A hair matching the victim’s was found on the

green knife, as well as a piece of fabric that was consistent with the fabric

of the jacket that the victim was wearing at the time of the attack.

e. Second motion for new trial.

In July, 2010, represented by new appellate counsel, the defendant filed a

second motion for a new trial. He argued that trial counsel was ineffective

for failing to investigate a defense based on lack of criminal responsibility,

where posttrial [sic] investigation yielded substantial evidence that the

defendant's mental health was impaired at the time of the stabbing.

According to the defendant, affidavits of various family members and

documentary evidence revealed his significant history of alcohol and

methamphetamine abuse; previous psychotic episodes, including

hallucinations, potentially associated with methamphetamine abuse; and the

presence of various “stressors” in his life at the time of the killing. Given

the unusual and apparently motiveless circumstances of the crime, and the

strength of the evidence against him, the defendant asserted that trial

counsel “should have recognized his prospects for acquittal were minimal—

even nonexistent” and instead pursued the “obvious alternative” of a

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defense premised on his mental state. The defendant argued that, had

evidence related to his mental state been presented to the jury, it could have

influenced the verdict.

A judge who was not the trial judge denied the motion after a hearing at

which a clinical psychologist, trial counsel, and the defendant testified. The

psychologist, Dr. Helene Presskreischer, opined that it was most likely that,

at the time of the stabbing, the defendant was suffering from a spontaneous

recurrence of a methamphetamine-induced psychosis and acted in what he

perceived to be self-defense; this psychosis would have affected his ability

to appreciate the wrongfulness of, and to control, his behavior such that he

could have been found not guilty by reason of insanity. Presskreischer's

opinion was based on the defendant's nearly twenty-year history of chronic

methamphetamine abuse beginning at the age of fourteen; prior incidents of

hallucinations; and certain “stressors” in his life at the time of the killing,

including his father's recent death and the defendant's having taken over the

family tiling business, his ongoing divorce, and the stressful and noisy

working environment prior to the murder.

Presskreischer testified to her review of a number of medical records and

reports concerning the defendant's previous psychotic episodes. In 1997,

three years before the stabbing, he was observed waving and yelling at

motorists driving by his home. Police transported him to a community

health center, where he reported that someone was trying to kill him and

that he had seen four satellites collide over his house; he was diagnosed with

amphetamine-induced psychotic disorder, with hallucination. Sometime

after his father's death in 1999, the defendant's mother observed the

defendant “talking crazy” and, concerned, asked his cousin Terry to come

to the house. When Terry arrived, the defendant was moving about his

house as if to evade detection, and was frightened that someone was trying

to kill him. Terry took him to the hospital. Several months before the

stabbing, Gary found the defendant in “stocking feet” outside his home,

standing in snow and ice, holding a gun. He discovered that the defendant

had shot bullet holes in his bathroom ceiling and garage door, in order to

fend off intruders who he believed were trying to kill him. No evidence of

intruders was discovered.

Presskreischer opined that, based on her observations of the defendant

during their meetings, he continued to suffer from residual psychosis. She

also testified to the long-term effects of methamphetamine abuse. She said

that chronic abuse of the drug can lead to structural changes in the brain that

may cause up to three-quarters of abusers to experience psychotic episodes.

She testified further that, even when active drug use has ceased, users can

experience “flashbacks,” or spontaneous recurrences of psychotic episodes,

that may be triggered by even mild “psychosocial stressors.” While the

specific diagnosis of spontaneous recurrence of methamphetamine-induced

psychosis was not listed in the edition of the Diagnostic and Statistical

Manual of Mental Disorders (DSM) that was current at the time of trial, that

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edition did include a chapter on amphetamine-induced disorders;

Presskreischer also submitted a bibliography of articles on the topic

published in peer-reviewed journals before the date of the stabbing.

The judge found that “the post-trial affidavits and expert testimony of Dr.

Presskreischer suggest that methamphetamine psychosis may have been a

viable defense,” but nonetheless concluded that “the facts known to, or

accessible to [trial counsel], did not raise a reasonable doubt as to the

defendant's mental state” and that “[t]he investigation conducted by [trial

counsel] was constitutionally effective based on the information available

to her.” The judge noted that trial counsel met with the defendant

approximately twelve times prior to trial, and during such meetings, the

defendant consistently maintained his innocence. Although he told trial

counsel of his history of drug abuse, the defendant also stated that he was

not under the influence of methamphetamine or other drugs at the time of

the crime, and that he had not used any drugs on the day of the stabbing.

The judge found that trial counsel conducted a reasonable investigation of

the defendant's family; the defendant's mother provided the name of an

Oklahoma facility where the defendant received drug and mental health

treatment as a teenager, but trial counsel was unsuccessful in obtaining

medical records from that facility. The judge found that trial counsel was

not otherwise on notice of any mental health problems affecting the

defendant, and did not observe or learn of any instances of hallucinations,

delusions, or other indicators of mental illness.

Spray, 467 Mass. at 458-66.

III.

DISCUSSION

Habeas Corpus Standard of Review

Spray may not obtain federal habeas relief under 28 U.S.C. § 2254(d) unless he can show

that the SJC’s decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). The “contrary to” prong is satisfied when the state court “applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases,” Williams v. Taylor, 529

U.S. 362, 405 (2000), or if “the state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different]

result.” Id. at 406. The “unreasonable application” prong is satisfied if the state court “identifies

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the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. 413. In reviewing a case under §

2254(d)(1), “an unreasonable application of federal law is different from an incorrect

application of federal law.” Id. at 410.

The AEDPA also allows relief from a state court judgment if that judgment is based on

an “unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). “Under this standard, ‘the state court’s factual findings

are entitled to a presumption of correctness that can be rebutted only by clear and convincing

evidence to the contrary.’” RaShad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (citations omitted).

“Unless the petitioner can carry this heavy burden, a federal habeas court must credit the state

court’s findings of fact.” Id. (citations omitted).

Sixth Amendment Right to Effective Assistance of Counsel

Spray argues that he did not receive constitutionally effective assistance from his trial

counsel because she failed to investigate and present a mental health defense at trial.

Ineffective Assistance of Counsel Standard

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of Counsel for his defense.” U.S. CONST., amend. VI.

The right to the assistance of counsel implicitly includes the right to effective counsel. Strickland

v. Washington, 466 U.S. 668, 686 (1984).

Clearly established federal law governing ineffective assistance of counsel claims is

based primarily on the principles set forth in Strickland. Under the Strickland analysis, Spray

must show that: (1) counsel’s performance was deficient, i.e. counsel made errors so serious that

counsel was not functioning as “counsel” as guaranteed by the Sixth Amendment; and, (2) the

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deficient performance prejudiced the defense, i.e. counsel’s errors were so serious as to deprive

the defendant of a fair trial. Strickland, 466 U.S. at 687.

Not every lawyerly slip constitutes ineffective assistance of counsel for Sixth

Amendment purposes. Id. at 693. “Judicial scrutiny of counsel’s performance must be highly

deferential” and “every effort [should] be made to eliminate the distorting effects of hindsight.”

Id. at 689. This Court “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance, that is, the defendant must overcome the

presumption that under the circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1995)).

To satisfy the first prong of the Strickland test, Spray must show that trial counsel’s

performance was deficient to the point of being “objectively unreasonable.” See United States v.

McGill, 11 F.3d 223, 226 (1st Cir. 1993); Companonio v. O’Brien, 672 F.3d 101, 109 (1st Cir.

2012). Reasonable conduct falls “within the range of competence demanded of attorneys in

criminal cases.” United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978) (quoting McMann

v. Richardson, 397 U.S. 759, 770-71 (1970)). In other words, performance is constitutionally

deficient “only if no competent attorney would have acted as [counsel] did.” Companonio, 672

F.3d at 110.

To establish prejudice, a defendant must demonstrate “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. “[T]he question is not whether a court can be certain counsel’s

performance had no effect on the outcome or whether it is possible a reasonable doubt might

have been established if counsel acted differently.” Harrington v. Richter, 562 U.S. 86, 111

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(2011). Rather, “the likelihood of different result must be substantial, not just conceivable.” Id.

at 792.

Because all of the appeals were consolidated, the SJC reviewed Spray’s claim of

ineffective assistance of counsel under the “substantial likelihood of a miscarriage of justice

standard.” Spray, 467 Mass. at 471. Accordingly, the SJC, citing Commonwealth v. Wright,

411 Mass. 678, 681 (1992), stated that it would consider “whether there was an error in the

course of the trial . . . and, if there was, whether that error was likely to have influenced the

jury’s conclusion.” Spray, 467 Mass. at 472. This standard is more favorable to Spray than both

the Strickland standard and the Massachusetts constitutional standard. See Kirwan v. Spencer,

631 F.3d 582, 590, n. 3 (1st Cir. 2011); Knight v. Spencer, 447 F.3d 6, 10 (1st Cir. 2006).

“Because the standard that the SJC employed is at least as protective of the defendant’s rights as

its federal counterpart, [this Court] may defer under section 2254(d)(1) to its determination.”

Kirwan, 631 F.3d at 590, n. 3 (internal citation and quotation marks omitted). Further, the First

Circuit has held that where the SJC applies the more favorable “substantial likelihood of a

miscarriage of justice” standard, its decision will not be deemed “contrary to” the Strickland

criteria. Knight, 447 F.3d at 24.

Accordingly, the pivotal issue for this Court is whether the SJC’s decision was

unreasonable under the Strickland standard. Harrington, 562 U.S. at 101. “This is different from

asking whether defense counsel’s performance fell below Strickland’s standard.” Id. “Federal

habeas courts must guard against the danger of equating unreasonableness under Strickland with

unreasonableness under § 2254(d).” Id. at 105. “When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Id.

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Because the Strickland standard is a general one, the range of reasonable applications of

Strickland is substantial. Harrington, 562 U.S. at 105. Further, “[a] state court must be granted a

deference and latitude that are not in operation when the case involves review under the

Strickland standard itself.” Id. at 785. The standards created by Strickland and § 2254(d) are

both “highly deferential,” and when the two apply in tandem, review is “doubly” so. Id. at 788

(internal quotations and citations omitted.).

Discussion

In his second motion for a new trial, Spray argued that his trial counsel was ineffective

for failing to investigate a mental health condition that may have led to the presentation of a

mental health defense at trial. S.A., Ex. 6. According to evidence elicited from a post-trial

investigation, Spray was likely suffering from some form of mental health disorder at the time of

the stabbing. Id. Spray argued that if this evidence had been presented to the jury, it would have

had a substantial possibility of influencing the outcome of his trial. Id.

At the SJC, Spray argued that the motion judge disregarded significant evidence relating

to his trial counsel’s failure to investigate into his mental health. S.A. Ex. 17, Ex. 13, pp. 11-12.

Spray argued that this failure constituted inadequate assistance of counsel in light of not only the

strengths of the mental health defense, but the weaknesses of an actual innocence defense. Id. at

p. 12. Under this theory, Spray contended that his trial counsel not only had notice of a potential

mental health condition, but that his counsel improperly substituted her own judgment for that of

a mental health professional in deciding not to investigate. Id. at p. 15. Such improper

substitution, Spray argued, caused his counsel to forego any consideration of investigating or

presenting a mental health defense. Id. at pp. 16-18.

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The SJC recognized that the failure to raise a substantial defense, including an insanity

defense, may be considered ineffective assistance of counsel, but only where the jury verdict

would have been different if the error had not been made. Spray, 467 Mass. at 472 (citing

Commonwealth v. Sena, 429 Mass. 590, 595 (1999)). Ultimately, the SJC found that Spray’s

counsel’s performance was neither deficient nor prejudicial. This Court finds that the SJC’s

decision was neither contrary to, nor an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.

Counsel’s Performance

Spray argues that due to the overwhelming nature of the evidence against him, lack of

motive, past drug use, and past mental health treatment, his counsel’s decision to present a

defense of actual innocence constituted ineffective assistance of counsel. Docket No. 18 at p. 25.

The role of a federal habeas court in evaluating whether counsel’s performance was

deficient is to view the performance subjectively from the point of view of trial counsel, and with

a deferential slant with regard to professional judgment. Ouber v. Guarino, 293 F.3d 19, 25 (1st

Cir. 2002). “[A] reviewing court must not lean too heavily on hindsight” and should review a

tactical decision on the basis of what counsel actually knew or should have known at the time

they made the decision. Id. (quoting Bell v. Cone, 535 U.S. 685, 701 (2002)). A court “must

respect counsel’s strategic choices, recognizing that ‘the law does not require counsel to raise

every available nonfrivolous defense.’” U.S. v. Arias, 94 F. Supp. 3d 93, 102 (D. Mass. 2015)

(Section 2255 case)(quoting Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)).

According to the SJC, it was reasonable to determine that the facts and circumstances

which were known, or reasonably should have been known by counsel at the time she decided to

pursue a defense of actual innocence did not amount to notice of a need to investigate a mental

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health defense. The SJC also found that at all times prior to trial, Spray maintained his

innocence, and never suggested to his counsel that he may have committed the stabbing at any of

his twelve meetings with his counsel. Spray, 467 Mass. at 474. Spray did discuss his history of

past methamphetamine use with counsel, but stated that he was neither under the influence of

methamphetamine or other drugs on the day of the stabbing, nor had he used any drugs that day.

Id.

Importantly, however, Spray did notify his counsel that as a teenager, he had received

treatment for alcohol abuse at a facility in Oklahoma. Spray, 467 Mass. at 474. Viewing

Spray’s past treatment as a potential source of relevant information regarding his mental health,

his counsel interviewed Spray’s mother, who contradicted the statement that the treatment had

been for alcohol abuse. Id. at 475. According to Spray’s mother, the treatment had been for

drug abuse and other mental health treatment. Counsel subsequently attempted to obtain copies

of Spray’s twenty year-old medical records from the Oklahoma facility, but was unsuccessful.

Id. Counsel also interviewed Spray’s family members regarding his past treatment, but as the

SJC found, the investigation uncovered no concrete information that would have put counsel on

notice of the need to order a psychiatric evaluation. Spray, 467 Mass. at 474-6.

The SJC further found that counsel’s awareness of the existence of these old records was

the only indication that Spray’s counsel knew about any of Spray’s past issues with mental

health disorders. Id. In the absence of any contemporary and concrete information, the SJC’s

finding that there was not sufficient information available to characterize counsel’s decision as

unprofessional was not an unreasonable determination of fact.

The SJC further found Spray’s counsel could not reasonably have known that chronic

methamphetamine abuse gives rise to potential drug induced psychoses, and therefore could lead

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Case 1:14-cv-13877-PBS Document 27 Filed 06/01/17 Page 14 of 18

to a successful lack of criminal responsibility defense if properly investigated and presented. Id.

at 476-77. The SJC noted that in the early 2000s there was only “limited prevalence of

methamphetamine use in the Commonwealth” and consequently attorneys had limited exposure

to methamphetamine-induced psychosis. Id. at 476. Spray did not exhibit any hallucinatory

behavior during the trial preparation or the trial itself. Id. at 474. In addition, Spray’s post-trial

evaluating psychiatrist verified that counsel’s unfamiliarity was justifiable. Id. at 475-77.

The cases cited by Spray to support his position are distinguishable. For example, in

Genius v. Pepe, 50 F.3d 60 (1st Cir. 1995), a court-appointed psychiatrist testified that the

petitioner was mentally deficient but not criminally responsible and the petitioner was sent to be

evaluated to determine whether he was incompetent to stand trial. Those circumstances are not

present in this case.

Similarly, the other cases cited by Spray are inapposite. In each of those cases, courts

found that counsel was constitutionally ineffective because there was concrete evidence

regarding mental health issues and, therefore, counsel was on notice of the petitioners’

psychiatric disorders.3 Here, Spray points to the facts of the crime itself, Spray’s drug use, and

See Jacobs v. Horn, 395 F.3d 92 (3d Cir. 2005) (finding that where trial counsel actually

presented a diminished capacity defense, but failed to adequately support it through

investigation, the petitioner had not received effective assistance of counsel); Newman v.

Harrington, 726 F.3d 921 (7th Cir. 2013) (finding that because the petitioner’s mother provided

counsel with copies of psychiatric evaluation records reflecting a long history of severe mental

and cognitive disabilities in the first meeting between counsel and the petitioner, the failure to

investigate into the petitioner’s mental fitness was ineffective assistance of counsel.); Jennings v.

Woodford, 290 F.3d 1006 (9th Cir. 2002) (finding that where counsel failed to consult with a

psychiatrist that had examined the petitioner while represented by different counsel, and failed to

investigate a prior court-ordered involuntary commitment for psychiatric evaluation of which

counsel had knowledge, the petitioner had not received effective assistance of counsel); Seidel v.

Merkel, 146 F.3d 750, 755 (9th Cir. 1998) (finding that where counsel failed to investigate

knowing that the petitioner had been treated by a prison psychiatrist while awaiting trial,

petitioner’s medical records indicated previous treatment at a Department of Veterans Affairs

hospital for a mental disorder, and that the petitioner’s Own Recognizance Report prepared in

A. 16

Case 1:14-cv-13877-PBS Document 27 Filed 06/01/17 Page 15 of 18

Spray’s mother’s mention of prior mental health treatment for which counsel tried but was

unable to obtain any record. However, the SJC acknowledged the existence of this information

and still concluded that Spray’s counsel was “not under a constitutional duty to undertake a

supplemental investigation.” Spray, 467 at 476. This conclusion is consistent with federal law.

Spray also points to the SJC’s acknowledgement that “another attorney might well have

investigated the psychological effects of [methamphetamine] . . . abuse.” Docket No. 18, p.

21(quoting Spray, 467 Mass. at 476). Spray argues that potentially persuasive information

would have been revealed had such an investigation been conducted. Id. This line of argument,

however, is precisely the kind of second-guessing that federal law proscribes as constituting

grounds for habeas relief. See Strickland, 466 U.S. at 689. Indeed, the SJC agreed that while the

decision not to conduct further investigation may in retrospect have been incorrect, it correctly

decided that the actionable issue is not whether it was a sound decision, but whether counsel was

under a constitutional duty to investigate further. Spray, 467 Mass. at 476. “Just as there is no

expectation that competent counsel will be a flawless strategist or tactician, an attorney may not

be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what

appear to be remote possibilities.” Harrington, 562 U.S. at 110.

Requiring counsel in all instances to disregard their own assessment of the value of

conducting extensive psychological investigation only serves to “promote costly defensive

lawyering focused not on the specifics of the case counsel is actually defending, but on the

avoidance of post-trial allegations of ineffectiveness.” Rosado v. Allen, 482 F. Supp. 2d 94, 107

advance of a bail hearing documented previous psychiatric treatment, the petitioner had not

received effective assistance of counsel.); Frazier v. Huffman, 343 F.3d 780, 794 (6th Cir. 2003)

(finding that where counsel failed to investigate but was aware of an injury to the part of

petitioner’s brain responsible for decision-making, impulse control, and reasoning, yet failed to

order a psychiatric evaluation, the petitioner had not received effective assistance of counsel.

A. 17

Case 1:14-cv-13877-PBS Document 27 Filed 06/01/17 Page 16 of 18

(D. Mass. 2007). “A lawyer certainly need not consult a psychological expert in every case in

which the defendant has exhibited anti-social tendencies in the past.” Id. An attorney,

therefore, necessarily must make the decision to investigate further based at least in part on their

own assessment of their client. “Pursuing any line of inquiry involves some use of time and

distracts in some degree from other possible defenses that might be pursued.” Genius, 147 F.3d

at 67. Put another way, this Court may only find the SJC’s decision unreasonable where counsel

had substantially more than a mere inclination that a psychiatric evaluation might be fruitful.

Here, an evaluation of Spray may have yielded results that would have permitted counsel

to present a lack of criminal responsibility defense, and another attorney may have ordered the

evaluation based on the information before counsel in this matter. However, Spray’s counsel’s

investigation did not produce any indications sufficient for this Court to determine that it was

unreasonable for the SJC to decide that the failure to order an evaluation was not a complete

departure from established professional norms. See Rompilla v. Beard, 545 U.S. 374, 383

(2005) (“reasonably diligent counsel may draw a line when they have good reason to think

further investigation would be a waste”).

Consistent with Strickland, the SJC also properly considered Spray’s own actions and

their effect on the overall determination of reasonableness of counsel’s decision not to

investigate further. Strickland, 446 U.S. at 691. As the SJC noted, Spray consistently

maintained his innocence prior to trial. Spray, 467 Mass. at 473. Accordingly, he gave his

counsel “reason to believe that pursuing [further] investigations would be fruitless.” Id.

Accordingly, this Court finds that the SJC’s decision that the failure of Spray’s counsel to further

investigate into Spray’s mental health was not unreasonable.

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Case 1:14-cv-13877-PBS Document 27 Filed 06/01/17 Page 17 of 18

Prejudice

Not only must Spray show that his trial counsel’s performance fell below constitutionally

sufficient standards, but he must also show that, but for such conduct, the outcome of the

proceeding would have been different. Strickland, 466 U.S. at 694.

The SJC reviewed Spray’s ineffective assistance of counsel claim by asking “whether

there was an error in the course of the 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.” Spray, 467

Mass. at 472 (quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992)). Further, the SJC

asked whether—in the event Spray’s counsel committed an error—it was “substantially

confident that, if the error had not been made, the jury verdict would have been the same.” Id.

(quoting Commonwealth v. Ruddock, 428 Mass. 288, 292, n. 3 (1998)). The SJC found that

even under this standard, which is more favorable to Spray than the standard articulated in

Strickland, the decision to present an actual innocence defense was not prejudicial. Id.

Spray argues that “clearly [he] would have had a better chance of prevailing at trial if

counsel had presented a defense of a lack of criminal responsibility.” Docket No. 18 at p. 32.

Spray speculates that a psychiatric evaluation “would have uncovered details that would have led

to an insanity defense, and such a defense would have been more logical and viable given the

circumstances of the incident.” Id. at p. 35. Although the SJC ultimately rejected his argument

that the decision to present an actual innocence defense was prejudicial, Spray alleges that even

the SJC acknowledged an insanity defense was more viable than a defense of actual innocence.

Id. However, this overstates the SJC’s opinion, which concluded that the insanity defense “might

have been a more powerful defense.” Spray, 467 Mass. at 476 (emphasis added). In fact,

although the SJC appeared to endorse the insanity defense as a potentially stronger defense, it did

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not directly analyze the issue of whether the decision to present an actual innocence defense was

prejudicial. Accordingly, this Court finds that while the evidence Spray outlines in his

memorandum may create a doubt as to whether the trial would have ended with a different result,

the doubt is not so substantial that it rises to the level of prejudicial, and therefore the SJC’s

decision was not unreasonable. Harrington, 562 U.S. at 111.

Accordingly, Spray fails to demonstrate prejudice.

IV.

RECOMMENDATION

For the foregoing reasons, I recommend that the Court DENY the Petitioner Quillie

Merle Spray II’s Petition for Writ of Habeas Corpus in its entirety.

REVIEW BY DISTRICT JUDGE

The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any

party who objects to these proposed findings and recommendations must file specific written

objections thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report

and Recommendation. The written objections must specifically identify the portion of the

proposed findings, recommendations, or report to which objection is made, and the basis for such

objections. See Fed. R. Civ. P. 72 and Habeas Corpus Rule 8(b). The parties are further advised

that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to

comply with Fed. R. Civ. P. 72(b) will preclude further appellate review of the District Court’s

order based on this Report and Recommendation. See Phinney v. Wentworth Douglas Hospital,

199 F.3d 1 (1st Cir. 1999); Sunview Condo. Ass’n v. Flexel Int’l, 116 F.3d 962 (1st Cir. 1997);

Pagano v. Frank, 983 F.2d 343 (1st Cir. 1993).

/s/ Jennifer C. Boal

JENNIFER C. BOAL

United States Magistrate Judge

A. 20

Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

KeyCite Yellow Flag - Negative Treatment

Distinguished by Com. v. Hampton, Mass.App.Ct., September 2, 2015

467 Mass. 456

Supreme Judicial Court of Massachusetts,

Worcester.

COMMONWEALTH

Quillie Merle SPRAY, Second.

Argued Nov. 8, 2013.

Decided March 13, 2014.

Synopsis

Background: Defendant was convicted in

the Superior Court Department, Worcester

County, Peter W. Agnes, Jr., J., of

murder in the first degree. The Superior

Court Department, Agnes, J., and John S.

McCann, J., denied defendant's motions for

a new trial. Defendant appealed.

Holdings: The Supreme Judicial Court,

Lenk, J., held that:

[1] confession was voluntary;

[2] defendant was not prejudiced by joinder

for trial of firearms charges;

[3] defendant was not prejudiced by any

error in admission of hearsay testimony

from a State trooper regarding witness's

identification of knife as belonging to

defendant;

[4] trial court did not abuse its discretion

in denying without a hearing defendant's

motion for a new trial; and

[5] trial counsel was not ineffective in

forgoing a comprehensive examination of

the defendant's mental state.

Affirmed.

West Headnotes (26)

[1]

Criminal Law

Particular cases

Criminal Law

Deception

Defendant's

confession

was

voluntary in prosecution for

murder in the first degree,

although officers varied their line

of questioning at one point to

ask why he had committed the

crime after he had repeatedly

denied committing the murder,

and defendant invoked his right to

counsel immediately after making

the inculpatory statement, where

change in the form of question

fell far short of an intentional

misrepresentation that could have

undermined the defendant's ability

to make a free choice, at no

point did officers improperly imply

that confessing would benefit

the defendant, or exaggerate

the strength of the evidence

against him, and officers properly

21U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

questioned the defendant about

the circumstances of the stabbing

and any involvement he had in it.

U.S.C.A. Const.Amend. 5.

While police officers' use of

trickery and other deceptive

tactics during an interrogation

may cast doubt on both the

validity of a suspect's waiver

of rights and the voluntariness

of any ensuing confession, the

interrogator's use of trickery is to

be considered as part of the totality

of the circumstances. U.S.C.A.

Const.Amend. 5.

2 Cases that cite this headnote

[2]

Criminal Law

Voluntariness

Commonwealth bears the heavy

burden of establishing that

the confession was voluntary.

U.S.C.A. Const.Amend. 5.

1 Cases that cite this headnote

[3]

Cases that cite this headnote

[5]

Where the use of a false

statement by police officers

during interrogation is the only

factor pointing in the direction

of involuntariness, it will not

ordinarily result in suppression.

U.S.C.A. Const.Amend. 5.

Criminal Law

What constitutes voluntary

statement, admission, or

confession

Criminal Law

Voluntariness

In meeting burden of establishing

that the confession was voluntary,

the Commonwealth must prove

beyond a reasonable doubt that,

in light of the totality of the

circumstances surrounding the

making of the statement, the will of

the defendant was not overborne,

but that the statement was the

result of a free and voluntary act.

U.S.C.A. Const.Amend. 5.

1 Cases that cite this headnote

[4]

Criminal Law

Deception

Criminal Law

Deception

Cases that cite this headnote

[6]

Criminal Law

Particular cases

Defendant was not prejudiced

by joinder for trial of firearms

charges, namely possession of a

firearm in a motor vehicle, and

possession of ammunition without

a firearm identification card, and

murder in the first degree charge,

although the charges were not

related offenses, where defendant

did not point to a specific

right or defense tactic that was

22U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

unavailable to him as a result of

such joinder, and defendant was

acquitted of the firearms charges.

Rules Crim.Proc., Rule 9(a), 47

M.G.L.A.

1 Cases that cite this headnote

[7]

Criminal Law

Joint or Separate Trial of

Separate Charges

Factors a judge may consider in

determining whether offenses are

related as would support joinder

for trial include factual similarities,

closeness of time and space, and

whether evidence of the other

offenses would be admissible in

separate trials on each offense.

Rules Crim.Proc., Rule 9(a), 47

M.G.L.A.

Cases that cite this headnote

[8]

Criminal Law

Joint or Separate Trial of

Separate Charges

Offenses are related for purposes

of joinder if the evidence in its

totality shows a common scheme

and pattern of operation that tends

to prove each of the complaints.

Rules Crim.Proc., Rule 9(a), 47

M.G.L.A.

2 Cases that cite this headnote

[9]

Criminal Law

Proceedings; waiver

A defendant claiming that two

or more offenses have been

joined improperly for trial bears

the burden of demonstrating

prejudice from misjoinder. Rules

Crim.Proc.,

Rule

9(a),

M.G.L.A.

1 Cases that cite this headnote

[10] Criminal Law

Grounds

Prejudice requiring severance does

not arise from the mere fact

that the defendant's chances for

acquittal of one of the charges

might have been better had the

offenses been tried separately;

rather, the defendant must show

that a particular tactic or right

was foreclosed by the joinder.

Rules Crim.Proc., Rule 9(a), 47

M.G.L.A.

3 Cases that cite this headnote

[11] Criminal Law

Joinder or severance of counts

or codefendants

Discernment by the factfinder

in assessing the evidence by

convicting the defendant on one

charge and acquitting him on

others is a strong indication that

a misjoinder of offenses has not

resulted in any actual prejudice to

the defendant. Rules Crim.Proc.,

Rule 9(a), 47 M.G.L.A.

23U.S. Government Works.

original

Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

2 Cases that cite this headnote

[12] Criminal Law

Admissions, declarations, and

hearsay; confessions

Defendant was not prejudiced

by any error in admission

of hearsay testimony from a

State trooper regarding witness's

identification of knife as belonging

to defendant in prosecution for

murder in the first degree,

although the testimony created

an additional linkage between

the defendant and the stabbing,

where the linkage was cumulative

of other evidence against the

defendant, including testimony

about witness's description of the

defendant's knife at the scene of the

crime, testimony from an employee

of the general contractor who saw

a green knife next to the defendant

before the stabbing, eyewitness

accounts, and forensic evidence.

Cases that cite this headnote

[13] Criminal Law

Identity

Testimony by a third party,

such as a police officer,

regarding a witness's extrajudicial

identification is substantively

admissible if the identifying

witness is unable or unwilling to

make an identification in court and

is available for cross-examination.

1 Cases that cite this headnote

[14] Criminal Law

Identity

It is immaterial to admissibility

of testimony by a third party,

such as a police officer,

regarding a witness's extrajudicial

identification, that the identifying

witness disavows having made a

prior extrajudicial identification,

or even denies having any basis for

making an identification.

1 Cases that cite this headnote

[15] Criminal Law

Identity

Testimony by a third party,

such as a police officer,

regarding a witness's extrajudicial

identification is admissible to

establish identifying features of

a defendant because of the

superior probative worth of an

identification made closer in time

to the events in question.

1 Cases that cite this headnote

[16] Criminal Law

Identity and presence of

accused

Where the identifying witness

disavows his or her earlier

identification,

other

prioridentification testimony can be put

24U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

to the jury, who can determine

whose version to believe.

Cases that cite this headnote

[17] Criminal Law

Contradictory statements by

witness

Criminal Law

Hearing and rehearing in

general

Judge, who was also the trial

judge, did not abuse his discretion

in denying without a hearing

defendant's motion for a new

trial in prosecution for murder

in the first degree, where he

reviewed the recantation affidavits

and determined that they were not

credible, and, even if true, the

absence of the witness's testimony

at trial would not have changed the

verdict, and judge had knowledge

of what occurred at trial so that he

could properly assess questions of

credibility.

6 Cases that cite this headnote

[18] Criminal Law

Motion for new trial

Substantial likelihood of a

miscarriage of justice standard

applied to defendant's appeals of

the denial of his first and second

motions for a new trial, where they

were consolidated.

2 Cases that cite this headnote

[19] Criminal Law

Motion for new trial

In reviewing an order granting or

denying a motion for a new trial,

Supreme Judicial Court accords

deference to the views of a motion

judge who was also the trial judge.

6 Cases that cite this headnote

[20] Criminal Law

Hearing and rehearing in

general

Even where a motion for a new

trial is based on the recantation

of trial witnesses, a defendant may

be required to present the evidence

upon affidavits alone.

1 Cases that cite this headnote

[21] Criminal Law

Discretion of court as to new

trial

The decision to grant or deny a

motion for a new trial is left to

the sound discretion of the motion

judge.

4 Cases that cite this headnote

[22] Criminal Law

Raising of Particular Defense

or Contention

Criminal Law

Capacity to commit crime;

insanity or intoxication

25U.S. Government Works.

original

Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

Trial counsel was not ineffective

in forgoing a comprehensive

examination of the defendant's

mental state, and relying instead

on defense of actual innocence,

in prosecution for murder in the

first degree, although defendant's

mother spoke of the defendant

“talking crazy” and being taken

to the hospital, over ten months

before the stabbing, there was no

apparent motive for the crime,

and defendant had a flat affect,

where there were no facts known

or accessible to trial counsel

that would have put her on

notice of the need to obtain

a psychiatric evaluation of her

client, even after she conducted

additional investigation, trial

counsel met with defendant

approximately 12 times, during

which defendant did not appear

to be suffering from psychiatric

problems,

hallucinations,

defendant did not tell counsel

of any prior psychotic episodes

or hallucinatory behavior, and

there were no reports in

the record of the defendant

suffering from any hallucinations

or psychotic episodes while

incarcerated

awaiting

trial.

U.S.C.A. Const.Amend. 6.

Cases that cite this headnote

[23] Criminal Law

Effective assistance

Supreme Judicial Court considers

claims of ineffective assistance of

counsel to determine whether there

was an error in the course of

the 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. U.S.C.A.

Const.Amend. 6; M.G.L.A. c. 278,

§ 33E.

4 Cases that cite this headnote

[24] Criminal Law

Raising of Particular Defense

or Contention

If Supreme Judicial Court

concludes that counsel erred by

failing to raise a substantial

defense, a new trial is called

for on the basis of ineffective

assistance of counsel, unless Court

is substantially confident that, if

the error had not been made, the

jury verdict would have been the

same. U.S.C.A. Const.Amend. 6.

4 Cases that cite this headnote

[25] Criminal Law

Capacity to commit crime;

insanity or intoxication

Failure to investigate an insanity

defense would fall below the

level of competence demanded

of attorneys, as required for

relief on the basis of ineffective

assistance of counsel, if facts

26U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

known to, or accessible to,

trial counsel raised a reasonable

doubt as to the defendant's

mental

condition.

U.S.C.A.

Const.Amend. 6; M.G.L.A. c. 278,

§ 33E.

2 Cases that cite this headnote

[26] Criminal Law

Capacity to commit crime;

insanity or intoxication

A failure to investigate an insanity

defense is especially unreasonable,

as required for relief on the

basis of ineffective assistance of

counsel, where it is the only

viable defense available to a

defendant; however, 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. U.S.C.A.

Const.Amend. 6; M.G.L.A. c. 278,

§ 33E.

4 Cases that cite this headnote

Attorneys and Law Firms

**895 Kenneth I. Seiger for the defendant.

Donna–Marie Haran, Assistant District

Attorney, for the Commonwealth.

Present:

IRELAND,

C.J.,

SPINA,

CORDY, DUFFLY, & LENK, JJ.

Opinion

LENK, J.

*457 The defendant appeals from his

conviction of murder in the first degree on

a theory of extreme atrocity or cruelty, and

from the denial of two motions for new

trial. The defendant, his brother, his sisterin-law, and his cousin worked together in

a tiling business based in Oklahoma. While

working on a job at a restaurant in Clinton,

the defendant stabbed and killed the general

manager with no apparent provocation or

motive. The defense at trial was based on

a theory of actual innocence and that the

defendant's sister-in-law was the true culprit.

The defendant argues error in the denial of

a motion to suppress statements; improper

joinder of charges for trial; admission of

certain hearsay evidence; and the denial of

his first motion for a new trial without

an evidentiary hearing. The defendant

also argues that his trial counsel was

ineffective for failing to pursue a defense

of lack of criminal responsibility, based on

evidence that the defendant may have been

suffering from a spontaneous recurrence of

methamphetamine-induced psychosis at the

time of the stabbing.

We conclude that there was no error

requiring reversal and, after a review of the

entire record pursuant to our responsibility

under G.L. c. 278, § 33E, that there is no

reason to exercise our power to reduce the

27U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

defendant's conviction to a lesser degree of

guilt or to order a new trial. We affirm.

*458 1. Background. a. Facts. Based on the

evidence at trial, the jury could have found

the following. In December, 2000, a fastfood restaurant was under construction in

Clinton. The defendant, his brother Gary

Spray, his sister-in-law Monica Spray, and

his cousin Thomas Barron, 1 who lived in

Oklahoma and all worked together on tiling

jobs there, were hired to install tile in that

restaurant. The defendant, Gary, Monica,

and occasionally Thomas had worked in

similar jobs across the country; Gary and

Monica often worked as a team on such jobs,

while the defendant worked by himself.

Gary, Monica, and Thomas initially were

solely responsible for the December, 2000,

job in Clinton. However, they were

delayed in starting the 1,500–mile drive to

Massachusetts, and the defendant decided

to travel to Clinton as well. He drove to

Massachusetts alone, arriving in Clinton

in the early morning hours of Thursday,

December 7, 2000. Gary, Monica, and

Thomas arrived in a separate vehicle late

that afternoon; their arrival was delayed by

an unscheduled stop in St. Louis, where they

had “a little drug party” involving mostly

methamphetamines. While at the job site on

Friday, the defendant and Gary spoke with

the general contractor, who observed that

they were already behind schedule.

The victim, Sherylann Miller, was also

present at the construction site where the

defendant and his relatives were working.

Miller was the general manager of the

future restaurant, and was in the process of

accepting job applications and conducting

interviews for employment there. Since the

heating system had yet to be installed,

the area was being kept warm by **896

propane heaters. At one point, the defendant

heard the victim say that she was cold, and

suggested that she move closer to the heater;

she also apologized to the defendant when

she stepped on freshly laid tile. The two had

no prior relationship and did not interact

any further that day.

At approximately 4 P.M. on Saturday,

December 9, the defendant, Gary, Monica,

and Thomas were working at the job

site when the defendant walked out the

door. The other three continued *459

to install tile until they heard the victim

“hollering,” “No, don't!” and “Stop, stop!”

Monica turned around to see the defendant

“wrestling” with the victim and “punching

on her” while “dragging her backwards.”

Thomas saw the defendant holding the

victim “around the waist or kind of in a bear

hug.”

Monica began “jumping up and down and

hitting herself in the chest,” and said to

Gary, “It's Merle, it's Merle.” 2 Gary turned

around to see the defendant “punching

[the victim] in the back.” Gary ran to the

defendant, pushed him against the wall, and

asked, “What the fuck are you doing? What

are you doing to this lady?” The defendant

responded, “We'll tell them somebody else

done it.” By that time, the victim had fallen

to the floor and a large amount of blood

had begun to flow from her body. Gary

directed Monica and Thomas to telephone

28U.S. Government Works.

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Com. v. Spray, 467 Mass. 456 (2014)

5 N.E.3d 891

for help. Monica ran to a nearby gasoline

station and the attendant there telephoned

911. The defendant walked to the front of the

restaurant, saying, “Let's get this tile laid so

we can get out of here and go to the house.”

defendant while he sat in the cruiser, “What

are you doing, you didn't even know her.”

Monica was permitted to change clothes and

throw out the clothing she had been wearing,

as she had soiled herself.

Clinton police responded within two minutes

of receiving the 911 call. They encountered

the family in various states of shock outside

the restaurant. Monica was “hysterical”;

Thomas was pacing nervously and crying;

and Gary was standing over the defendant,

yelling repeatedly, “What the fuck did you

do that for?” The defendant was sitting on

the curb outside the restaurant, acting “very

calm” and not seeming at all upset. Monica

pointed to the defendant and said, “He

stabbed her, he did it.” Thomas and Gary

also indicated to police that the defendant

had stabbed the victim. In response to

questions regarding the whereabouts of the

weapon, Gary stated that the defendant had

had a knife, and that it had a green handle

and a blade approximately five inches in

length.

The defendant, Gary, Monica, and Thomas

were transported in separate police cruisers

to the Clinton police station. There, Gary,

Monica, and Thomas each gave a written

statement while sitting in separate rooms;

police observed that none appeared to be

under the influence of drugs or alcohol. Gary

again provided a description of the weapon

used in the attack, and said that he had seen

the defendant **897 kneel down beside a

Police found the victim lying on the floor

in the back of the restaurant with a large

pool of blood around her head. The victim

was transported to a local hospital, and then

transferred via helicopter to a hospital in

Worcester, where she was pronounced dead

in the early morning hours of the following

day.

Shortly after police arrived and his relatives

identified him as *460 the one who had

stabbed the victim, the defendant was

arrested, handcuffed, and placed in a police

cruiser. Gary continued to yell at the

bucket at the scene. 3 Officers located the

bucket, filled with dirty water and plaster

or mud, and retrieved a green-handled knife

with a serrated edge from it; a red-handled

knife was also recovered from the scene. The

green-handled knife was brought back to the

police station, where Gary identified it as

belonging to the defendant. 4

While the defendant was booked 5 and

fingerprinted, officers observed a cut on

his left hand. A Clinton police officer and

a State trooper interviewed the defendant

after reading him the Miranda rights and

presenting him with a card listing those

rights, which he initialed. The defendant

agreed to speak with police and to allow

police to transcribe his statement. During

the interview, the defendant denied having

had anything to do with the stabbing; police

described him as “calm, cool, collected,

very cooperative,” and said that he did not

appear to be under the influence of drugs

or alcohol. Later that evening, the *461

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defendant's vehicle was towed; an inventory

search produced an unlicensed firearm,

ammunition, and spent shell casings.

At approximately 2 A.M. Sunday morning,

police learned that the victim had died

as a result of her injuries, and booked

the defendant on the additional charge of

murder. Later that afternoon, after advising

him of the Miranda rights, and procuring a

waiver of his right to a prompt arraignment

pursuant to Commonwealth v. Rosario, 422

Mass. 48, 661 N.E.2d 71 (1996) (Rosario ),

police again interviewed the defendant. He

denied knowing anything about the source

of the victim's injuries, but, in response to

repeated questioning, eventually stated, “If I

did do it, I didn't mean to kill her.”

An autopsy revealed that the victim died

as a result of six stab wounds to the neck,

and that her injuries were consistent with

having been stabbed from behind. Two

of the wounds severed her spinal cord.

Forensic testing established that a sample

from a blood stain on the defendant's shirt

cuff matched the victim's blood. 6 A hair

matching the victim's was found on the green

knife, as well as a piece of fabric that was

consistent with the fabric of the jacket that

the victim was wearing at the time of the

attack.

b. Pretrial motions. The defendant filed a

pretrial motion to suppress all statements

made by him to the police, as well as

all evidence obtained as a result of the

search of his vehicle. He argued that the

statements made to the police should be

suppressed as involuntary, and that items

found in his vehicle should be suppressed

because they were the result of an illegal

warrantless search. Both the defendant and

the Commonwealth filed motions **898

in limine regarding the admissibility of the

statements made by the defendant's family

members to the police.

After a hearing at which a number of local

and State police officers testified, the motion

judge allowed the defendant's motion in part

and denied it in part. The judge held that,

with regard to the police interviews of the

defendant on December 9 and 10, 2000,

the Commonwealth had met its burden of

proving a valid waiver of Miranda rights

beyond a reasonable doubt; the defendant

had signed a written waiver form and there

was no *462 evidence that the defendant

was under the influence of drugs or

alcohol, and no evidence of police coercion.

However, the judge ruled that, because the

second interview came to an end when the

defendant said, “I think I need a lawyer,”

no subsequent statement could be admitted

unless the Commonwealth proved that the

defendant initiated further communication

with police officers. See Commonwealth v.

Contos, 435 Mass. 19, 30, 754 N.E.2d 647

(2001). Since the Commonwealth failed to

meet this burden, the judge suppressed the

defendant's statements to police after the

termination of the second interview when

an officer approached him to ask about

ownership of the firearm found in his vehicle.

The judge ruled that the warrantless search

of the defendant's vehicle was lawful as an

inventory search of an impounded vehicle,

and that the firearm and ammunition

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discovered during the search should not

be suppressed. The judge determined that

“it was reasonable for the police to take

measures to guard against a potential claim

of liability,” where the vehicle was exposed

to a risk of theft or vandalism where it

was parked, and where the police had

a reasonable basis to believe that the

defendant would not be released due to the

high cash bail.

Finally, the judge determined that

statements made by Gary, Monica, and

Thomas to police were admissible under the

excited utterance exception to the hearsay

rule, since they were made within minutes of

the stabbing and there was ample evidence

that each was very upset and under the

influence of a startling event.

c. Trial proceedings. The defendant was

tried on the charges of murder, assault and

battery by means of a dangerous weapon,

possession of a firearm in a motor vehicle,

and possession of ammunition without a

firearm identification card. He testified in his

own defense. The defendant said that he did

not kill the victim and did not know who

did; he was installing tile when he looked up

and saw the victim lying on the floor. When

the defendant knelt down to check on her,

Gary came running and shoved him against

the wall, accusing him of stabbing the victim.

The defense strategy was to maintain

the defendant's innocence and to suggest

that Monica was the true perpetrator.

Counsel suggested that Monica, as a

methamphetamine addict, *463 robbed and

killed the victim in order to obtain money for

drugs. Monica's guilt was evidenced by her

quickness to blame the defendant and deflect

attention from herself, her melodramatic

state after the attack, and the fact that,

immediately after the stabbing, she threw

away her clothes before the police could

examine them. Because Monica “fingered”

the defendant immediately, counsel argued,

the police focused their investigation on the

defendant from the start and, as a result, did

not search Monica's vehicle. Counsel also

impeached the credibility of Gary, Monica,

and Thomas by pointing to their heavy

methamphetamine use prior to the stabbing.

The jury convicted the defendant of murder

in the first degree on a theory of extreme

atrocity or cruelty and assault **899

and battery by means of a dangerous

weapon; the defendant was acquitted of the

firearms and ammunition charges. The judge

dismissed the assault and battery conviction

as merged with the murder conviction. See

Commonwealth v. Valliere, 437 Mass. 366,

371–372, 772 N.E.2d 27 (2002).

d. First motion for new trial. In February,

2007, the defendant moved for a new trial

pursuant to Mass. R.Crim. P. 30(b), as

appearing in 435 Mass. 1501 (2001), on

the ground that two eyewitnesses, Gary

and Monica, had recanted their testimony.

The defendant submitted affidavits from

Gary and Monica averring that they, in

fact, did not see the defendant argue with,

fight with, or stab the victim. Gary stated

also in his affidavit that, before trial, he

wanted to alter the statement he gave

to Clinton police on the evening of the

stabbing, but the prosecutor told him that if

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he changed it, he “would do an automatic

[seven] years for perjury.” Monica stated

that either the assistant district attorney's

partner or secretary “coached [her] into

saying only yes or no to defense counsel's

questions [and] not to be explicit in [her]

answers” and that she “was under the

influence of methamphetamine and many

other mind-altering drugs—[her] memory of

what happened wasn't close to the truth.”

In response, the prosecutor submitted an

affidavit stating that he never told Gary that

he would serve time for perjury if he changed

his statement.

The motion judge, who was also the trial

judge, denied the motion without a hearing,

declining to credit Gary's and Monica's

*464 affidavits. The judge found that

the affidavits contradicted accounts that

the two repeatedly had given throughout

the proceedings as well as other evidence

presented at trial, and that the affidavits

were less credible in light of the six years that

had passed since the stabbing. Moreover, the

judge concluded that, even if the affidavits

were accurate, the evidence against the

defendant was “solid” without Gary's and

Monica's trial testimony.

e. Second motion for new trial. In

July, 2010, represented by new appellate

counsel, the defendant filed a second

motion for a new trial. He argued that

trial counsel was ineffective for failing

to investigate a defense based on lack

of criminal responsibility, where posttrial

investigation yielded substantial evidence

that the defendant's mental health was

impaired at the time of the stabbing.

According to the defendant, affidavits of

various family members and documentary

evidence revealed his significant history

of alcohol and methamphetamine abuse;

previous psychotic episodes, including

hallucinations, potentially associated with

methamphetamine abuse; and the presence

of various “stressors” in his life at the

time of the killing. Given the unusual and

apparently motiveless circumstances of the

crime, and the strength of the evidence

against him, the defendant asserted that

trial counsel “should have recognized his

prospects for acquittal were minimal—

even nonexistent” and instead pursued the

“obvious alternative” of a defense premised

on his mental state. The defendant argued

that, had evidence related to his mental state

been presented to the jury, it could have

influenced the verdict.

A judge who was not the trial judge

denied the motion after a hearing at which

a clinical psychologist, trial counsel, and

the defendant testified. The psychologist,

Dr. Helene Presskreischer, opined that it

was most likely that, 7 at the time of

the **900 stabbing, the defendant was

suffering from a spontaneous recurrence

of a methamphetamine-induced psychosis

and acted in what he perceived to be selfdefense; this psychosis would have affected

his ability to appreciate the wrongfulness of,

and to control, his behavior such that he

could have been found not guilty by *465

reason of insanity. Presskreischer's opinion

was based on the defendant's nearly twentyyear history of chronic methamphetamine

abuse beginning at the age of fourteen;

prior incidents of hallucinations; and certain

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“stressors” in his life at the time of the killing,

including his father's recent death and the

defendant's having taken over the family

tiling business, his ongoing divorce, and

the stressful and noisy working environment

prior to the murder. 8

Presskreischer testified to her review

of a number of medical records and

reports concerning the defendant's previous

psychotic episodes. In 1997, three years

before the stabbing, he was observed

waving and yelling at motorists driving

by his home. Police transported him to a

community health center, where he reported

that someone was trying to kill him and

that he had seen four satellites collide

over his house; he was diagnosed with

amphetamine-induced psychotic disorder,

with hallucination. Sometime after his

father's death in 1999, the defendant's

mother observed the defendant “talking

crazy” and, concerned, asked his cousin

Terry to come to the house. When Terry

arrived, the defendant was moving about

his house as if to evade detection, and was

frightened that someone was trying to kill

him. Terry took him to the hospital. Several

months before the stabbing, Gary found

the defendant in “stocking feet” outside his

home, standing in snow and ice, holding a

gun. He discovered that the defendant had

shot bullet holes in his bathroom ceiling and

garage door, in order to fend off intruders

who he believed were trying to kill him. No

evidence of intruders was discovered.

Presskreischer opined that, based on her

observations of the defendant during their

meetings, he continued to suffer from

residual psychosis. She also testified to

the long-term effects of methamphetamine

abuse. She said that chronic abuse of

the drug can lead to structural changes

in the brain that may cause *466 up

to three-quarters of abusers to experience

psychotic episodes. She testified further

that, even when active drug use has

ceased, users can experience “flashbacks,”

or spontaneous recurrences of psychotic

episodes, that may be triggered by even

mild “psychosocial stressors.” While the

specific diagnosis of spontaneous recurrence

of methamphetamine-induced psychosis was

not listed in the edition of the Diagnostic

and Statistical Manual of Mental Disorders

(DSM) that was current at the time

of trial, that edition did include a

chapter on amphetamine-induced disorders;

Presskreischer also submitted a bibliography

of articles on the topic published in peerreviewed journals before the date of the

stabbing.

The judge found that “the post

trial affidavits and expert testimony

of Dr. Presskreischer suggest that

methamphetamine psychosis may have

been a viable defense,” but nonetheless

concluded that “the facts known to, or

accessible to [trial **901 counsel], did

not raise a reasonable doubt as to the

defendant's mental state” and that “[t]he

investigation conducted by [trial counsel]

was constitutionally effective based on

the information available to her.” The

judge noted that trial counsel met with

the defendant approximately twelve times

prior to trial, and during such meetings,

the defendant consistently maintained his

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innocence. Although he told trial counsel of

his history of drug abuse, the defendant also

stated that he was not under the influence

of methamphetamine or other drugs at the

time of the crime, and that he had not used

any drugs on the day of the stabbing. The

judge found that trial counsel conducted a

reasonable investigation of the defendant's

family; the defendant's mother provided the

name of an Oklahoma facility where the

defendant received drug and mental health

treatment as a teenager, but trial counsel was

unsuccessful in obtaining medical records

from that facility. The judge found that

trial counsel was not otherwise on notice

of any mental health problems affecting the

defendant, and did not observe or learn of

any instances of hallucinations, delusions, or

other indicators of mental illness.

The defendant appeals from his conviction

of murder and from the denials of his

motions for a new trial.

[1] 2. Discussion. a. Denial of motion to

suppress statements. *467 The defendant

argues that the motion judge erred in

denying his motion to suppress his statement

to police that “if [he] did do it, [he]

didn't mean to kill [the victim],” as it

was involuntary. The defendant contends

that involuntariness is demonstrated by

his invocation of his right to counsel

immediately after making the inculpatory

statement, and by the interviewing officers'

use of a “ruse” while questioning him, in

that they asked him why he had committed

the killing after he repeatedly had denied

involvement. The involuntariness of the

statement was exacerbated, the defendant

maintains, by his “long isolation” in a

holding cell before the ruse was employed.

[2]

[3]

As in all cases where the

Commonwealth intends to rely on a

defendant's confession to a crime, the

Commonwealth here “bear[s] the ‘heavy

burden of establishing that [the confession]

was voluntary.’ ” Commonwealth v. Baye,

462 Mass. 246, 256, 967 N.E.2d 1120

(2012), quoting Commonwealth v. Meehan,

377 Mass. 552, 563, 387 N.E.2d 527 (1979),

cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092,

63 L.Ed.2d 185 (1980). “In meeting this

burden, the Commonwealth must prove

beyond a reasonable doubt that ‘in light of

the totality of the circumstances surrounding

the making of the statement, the will of

the defendant was [not] overborne,’ but

rather that the statement was ‘the result of

a free and voluntary act.’ ” Id., quoting

Commonwealth v. Durand, 457 Mass. 574,

595–596, 931 N.E.2d 950 (2010).

[4]

[5] While police officers' use of

trickery and other deceptive tactics during

an interrogation may cast doubt on both the

validity of a suspect's waiver of rights and

the voluntariness of any ensuing confession,

“the interrogator's use of trickery is to

be considered as part of the totality

of the circumstances.” Commonwealth v.

DiGiambattista, 442 Mass. 423, 433, 813

N.E.2d 516 (2004). “[W]here the use of a

false statement is the only factor pointing in

the direction of involuntariness, it will not

ordinarily result in suppression.” Id.

The officers' interrogation tactics in this

case were not of a variety that we have

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previously condemned as impermissibly

misleading. The officers properly questioned

the defendant about the circumstances of

the stabbing and any involvement **902

he had in it. Although they varied their

line of questioning at one point to ask why

the defendant had committed the crime,

such a change in the form of a question

falls far short of an intentional *468

misrepresentation that “may undermine ‘the

defendant's ability to make a free choice,’

” Commonwealth v. Scoggins, 439 Mass.

571, 576, 789 N.E.2d 1080 (2003), quoting

Commonwealth v. Meehan, supra at 563,

387 N.E.2d 527, nor does it constitute a

false statement. At no point did officers

improperly imply that confessing would

benefit the defendant, or exaggerate the

strength of the evidence against him. See

Commonwealth v. Johnson, 463 Mass. 95,

105, 972 N.E.2d 460 (2012).

That the defendant invoked his right

to counsel immediately after making the

inculpatory statement does not render

otherwise voluntary statements involuntary.

Cf. Commonwealth v. Contos, 435 Mass. 19,

27–32, 754 N.E.2d 647 (2001) (statements

made after invocation of right to counsel

should have been suppressed, but error

was harmless where statements “mirrored”

similar voluntary statements made prior to

invoking right). The same is true regarding

the length of time between the defendant's

initial arrest and the time at which the

statement in question was made. Although

the statement was made during an interview

in the midafternoon of the day following

his arrest, after the defendant had been

held in the police station overnight, he

was advised properly of his right to a

prompt arraignment under Rosario, supra,

and executed a waiver. There is no indication

that the defendant was deprived of food

or sleep while being held at the police

station, nor is there any suggestion “that the

delay in any way tainted the otherwise free,

intelligent and voluntary statements of the

defendant.” Commonwealth v. Butler, 423

Mass. 517, 526, 668 N.E.2d 832 (1996).

[6] b. Joinder of charges at trial. The

defendant argues that the joinder of the

firearms charges with the murder charge

for trial posed a substantial likelihood of

a miscarriage of justice, where they were

not “related offenses” within the meaning of

Mass. R.Crim. P. 9(a), 378 Mass. 859 (1979).

[7] [8] Mass. R.Crim. P. 9(a) permits the

joinder of “related offenses” for trial “if they

are based on the same criminal conduct or

episode or arise out of a course of criminal

conduct or series of criminal episodes

connected together or constituting parts of a

single scheme or plan.” “Factors a judge may

consider in determining whether offenses

are related include factual similarities, ...

closeness of time and space[, and] ...

whether evidence of the other offenses would

be admissible in separate trials on each

offense.” *469 Commonwealth v. Pillai, 445

Mass. 175, 180, 833 N.E.2d 1160 (2005),

and cases cited. “Offenses are related if the

‘evidence in its totality shows a common

scheme and pattern of operation that tends

to prove’ each of the complaints.” Id.,

quoting Commonwealth v. Feijoo, 419 Mass.

486, 494–495, 646 N.E.2d 118 (1995). See

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Commonwealth v. Sylvester, 388 Mass. 749,

755–758, 448 N.E.2d 1106 (1983).

in any actual prejudice to the defendant.”

Commonwealth v. Green, 52 Mass.App.Ct.

98, 103, 750 N.E.2d 1041 (2001). See

[9] [10] A defendant claiming that two or Commonwealth v. Delaney, 425 Mass. 587,

more offenses have been joined improperly 595, 682 N.E.2d 611 (1997), cert. denied, 522

for trial bears the burden of demonstrating U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655

prejudice from misjoinder. Commonwealth (1998).

v. Zemtsov, 443 Mass. 36, 45, 818 N.E.2d

1057 (2004). “Prejudice requiring severance

[12] c. Admission of hearsay evidence.

does not arise from the mere fact that the The defendant argues that the improper

defendant's chances for acquittal of [one admission of hearsay evidence created a

of the charges] might have been better” substantial likelihood of a miscarriage

had the offenses been tried separately. of justice. Specifically, he contends that

Commonwealth v. Gallison, 383 Mass. 659, testimony from a State trooper regarding

672, 421 N.E.2d 757 (1981). Rather, the Gary's identification of the green-handled

defendant must show that a particular tactic knife as belonging to the defendant, not

or right was foreclosed by the joinder. See id. objected to at trial, was improper, since too

much time had elapsed for it to qualify as

**903 [11] Here, while the firearms and an excited utterance; made almost *470 five

murder charges were not “related offenses,” hours after the stabbing at the police station,

the defendant has not met his burden it was not a “spontaneous reaction to an

of demonstrating a specific ground of exciting event.” Commonwealth v. DiMonte,

prejudice. It is the case, as the defendant 427 Mass. 233, 240, 692 N.E.2d 45 (1998).

argues, that “the firearms charges were

[13] [14] [15] [16] The Commonwealth

entirely distinct from the homicide.” The

victim was stabbed with a knife; the firearm argues that the testimony was proper as an

played no role in the attack, but was extrajudicial identification, rather than as

discovered in the defendant's vehicle as part an excited utterance. “Testimony by a third

of an inventory search following his arrest, party, such as a police officer, regarding

along with ammunition. However, the a witness's extrajudicial identification is

defendant claims only that joinder tended substantively admissible if the identifying

to show his bad character or propensity witness is unable or unwilling [to make

to commit a crime; he does not point to an identification] in court and is available

a specific right or defense tactic that was for cross-examination.... [I]t is immaterial

unavailable to him as a result of such that the identifying witness disavows having

joinder. In any event, the jury acquitted the made a prior extrajudicial identification, or

defendant of the firearms charges. “Such even denies having any basis for making

discernment by the factfinder in assessing an identification.” Commonwealth v. Raedy,

the evidence is a strong indication that 68 Mass.App.Ct. 440, 446–447, 862 N.E.2d

a misjoinder of offenses has not resulted 456 (2007), citing Commonwealth v. Cong

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Duc Le, 444 Mass. 431, 441, 828 N.E.2d

501 (2005). Such testimony is admissible to

establish identifying features of a defendant

“because of the superior probative worth

of an identification made closer in time

to the events in question.” Commonwealth

v. Daye, 393 Mass. 55, 61, 469 N.E.2d

483 (1984), overruled on other grounds

by Commonwealth v. Cong Duc Le, supra.

Where the identifying witness disavows

his or her earlier identification, other

prior identification testimony can be put

to the jury, who “can determine whose

version to believe.” Commonwealth v. Cong

Duc Le, supra at 439–440, 828 N.E.2d

501. In addition to testimony regarding

the defendant's physical characteristics, see

Commonwealth v. Weichell, 390 Mass. 62,

72, 453 N.E.2d 1038 (1983), cert. denied,

465 U.S. 1032, 104 S.Ct. 1298, 79 L.Ed.2d

698 (1984), we have permitted descriptions

of the weapon used by the defendant under

this rule. See Commonwealth v. Martinez, 431

Mass. 168, 170–171, 175–176, 726 N.E.2d

913 (2000) (statement regarding color of

defendant's gun, by declarant who knew that

defendant possessed silver gun and saw him

shoot victim with it, was properly admitted).

**904 Here, though he denied that the knife

produced at trial belonged to the defendant,

Gary both testified that he previously had

identified the knife as the defendant's and

was available for cross-examination. The

knife had unique features, including a green

handle and a serrated edge, and matched the

earlier description that Gary had given to

police at the scene of the crime. However,

Gary did not witness the defendant use

the knife to *471 commit a crime, as in

Commonwealth v. Martinez, id. at 171, 726

N.E.2d 913, but rather identified the knife

on the basis of his personal knowledge

regarding his brother's possessions. Neither

is it clear from the record when Gary last saw

the defendant in custody of the knife.

Assuming without deciding, however, that it

was error to admit the testimony, any such

error did not create a substantial likelihood

of a miscarriage of justice. Although the

testimony created an additional linkage

between the defendant and the stabbing, that

linkage was cumulative of other evidence

against the defendant, including testimony

about Gary's description of the defendant's

knife at the scene of the crime, testimony

from an employee of the general contractor

who saw a green knife next to the defendant

before the stabbing, eyewitness accounts,

and forensic evidence.

[17] d. Denial of first motion for new

trial without hearing. The defendant argues

that it was error to deny the first

motion for a new trial without a hearing,

particularly where the motion was based

on recantation affidavits of Gary and

Monica. The defendant maintains that an

evidentiary hearing on the motion was

required, given that recantation by witnesses

requires “serious consideration from the

motion judge.” See Commonwealth v. Jones,

432 Mass. 623, 632–633, 737 N.E.2d 1247

(2000), quoting Commonwealth v. Watson,

377 Mass. 814, 837–838, 388 N.E.2d 680

(1979), S.C., 409 Mass. 110, 565 N.E.2d 408

(1991).

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[18] [19] [20] [21] Because the defendant'sa hearing, the motion judge properly “[took]

appeals of the denial of his first and into account his knowledge of what occurred

second motions for a new trial have at trial [in order to] assess questions **905

been consolidated with his direct appeal, of credibility.” Commonwealth v. Ortiz, 393

we review them under the substantial Mass. 523, 536–537, 471 N.E.2d 1321 (1984),

likelihood of a miscarriage of justice citing Commonwealth v. Little, 384 Mass.

standard. Commonwealth v. Gomez, 450 262, 269, 424 N.E.2d 504 (1981). There was

Mass. 704, 711, 881 N.E.2d 745 (2008), no abuse of discretion.

citing Commonwealth v. Morgan, 449 Mass.

343, 353, 868 N.E.2d 99 (2007). See G.L.

[22] e. Ineffective assistance of counsel. The

c. 278, § 33E. Further, with respect to the defendant argues that in deciding the second

first motion for a new trial, “[i]n reviewing motion for a new trial, the motion judge

an order granting or denying a motion for erred in “papering over a wealth of evidence”

a new trial, we accord deference to the regarding the inadequacy of trial counsel's

views of a motion judge who was also the investigation of a defense based on the

trial judge.” Commonwealth v. LeFave, 430 defendant's mental health. The defendant

Mass. 169, 176, 714 N.E.2d 805 (1999), citing contends that trial counsel's forgoing

Commonwealth v. Grace, 397 Mass. 303, 307, of a comprehensive examination of the

491 N.E.2d 246 (1986). Even where a motion defendant's mental state and reliance instead

for a new trial is based on the recantation of on “so palpably inadequate a defense”

trial witnesses, a defendant “may be required of actual innocence was constitutionally

to present the evidence upon affidavits ineffective assistance.

alone.” *472 Commonwealth v. Jones,

supra at 632, 737 N.E.2d 1247, quoting

[23] [24] Pursuant to G.L. c. 278, § 33E,

Commonwealth v. Coggins, 324 Mass. 552, we consider claims of ineffective assistance

557, 87 N.E.2d 200, cert. denied, 338 U.S. to determine “whether there was an error

881, 70 S.Ct. 152, 94 L.Ed. 541 (1949). The in the course of the trial (by defense

decision to grant or deny a motion for a new counsel, the prosecutor, or the judge) and,

trial “is left to the sound discretion of the if there was, whether that error was likely

motion judge.” Id. at 633, 737 N.E.2d 1247, to have influenced the jury's conclusion.”

citing Commonwealth v. Stewart, 383 Mass. Commonwealth v. Wright, 411 Mass. 678,

253, 418 N.E.2d 1219 (1981).

682, 584 N.E.2d 621 (1992). If we conclude

“that counsel erred by failing to raise a

Here, the motion judge, who was also substantial defense, ‘a new trial is called for

the trial judge, reviewed the recantation unless we are substantially confident that, if

affidavits and determined that they were the error had not been made, the jury verdict

not credible, and, even if true, the absence would have been the same.’ ” Commonwealth

of Gary's and Monica's testimony at trial v. Sena, 429 Mass. 590, 595, 709 N.E.2d 1111

would not have changed the verdict. In (1999), S.C., 441 Mass. 822, 809 N.E.2d 505

denying the motion for a new trial without (2004), quoting Commonwealth v. Ruddock,

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5 N.E.3d 891

428 Mass. 288, 292 n. 3, 701 N.E.2d 300

(1998).

parents told defense counsel, prior to trial,

that the defendant had received mental

health treatment at the suggestion of the

[25] [26] “Failure to investigate an insanity police, “before [the] crime and before trial.”

defense would fall below the level of Id. at 279, 700 N.E.2d 830. Trial counsel

competence demanded of attorneys, if did not follow up on this information, nor

facts known to, or accessible to, trial did he attempt to obtain further information

counsel raised a reasonable doubt as to from the local mental health center or ask

*473 the defendant's mental condition.” the defendant to submit to a psychiatric

Commonwealth v. Doucette, 391 Mass. 443, evaluation. Id. Instead, trial counsel made

458–459, 462 N.E.2d 1084 (1984), citing his own assessment of the defendant's mental

Osborne v. Commonwealth, 378 Mass. 104, health. Id. We stated in that case that trial

111, 389 N.E.2d 981 (1979). Such a failure to counsel “could not have made an accurate

investigate an insanity defense is especially assessment of the defendant's mental state

unreasonable where it is the only viable at the time of the crime without expert

defense available to a defendant. See, e.g., training.” Id. at 279 n. 2, 700 N.E.2d 830.

Commonwealth v. Haggerty, 400 Mass. 437, The defendant argues that here, likewise,

441–442, 509 N.E.2d 1163 (1987) (defendant trial counsel's **906 opinion as to his

deprived of effective assistance of counsel mental state was an inadequate substitute for

where “defense counsel abandons the only a court-appointed psychiatric evaluation.

defense available to a defendant and leaves

the defendant without any defense at The Commonwealth maintains that the

all”). However, a decision not to pursue circumstances here instead should be

an insanity defense for tactical reasons, compared to Commonwealth v. Walker, 443

for instance because in the circumstances Mass. 213, 225–228, 820 N.E.2d 195 (2005),

the defense would be factually weak, is where we rejected the defendant's argument

not tantamount to ineffective assistance of that trial counsel rendered ineffective

counsel. See, e.g., Commonwealth v. Genius, assistance. There, trial counsel was aware of

387 Mass. 695, 699, 442 N.E.2d 1157 (1982), the defendant's history of alcohol and drug

S.C., 402 Mass. 711, 524 N.E.2d 1349 (1988). abuse, his prior suicide attempt, and the fact

*474 that he had been discharged from the

The defendant argues that this case is akin armed services due to psychiatric problems.

to Commonwealth v. Roberio, 428 Mass. Id. at 223, 820 N.E.2d 195. However, we

278, 279–282, 700 N.E.2d 830 (1998), S.C., held that such facts were insufficient to

440 Mass. 245, 797 N.E.2d 364 (2003), suggest a potential mental health defense,

where we held that the defendant's right to where the suicide attempt and discharge

effective assistance of counsel was violated had occurred thirteen years previously and

by trial counsel's failure to investigate neither incident suggested that the defendant

a defense based on a lack of criminal was suffering from mental illness at the time

responsibility. In that case, the defendant's of the crime. Id. at 225, 820 N.E.2d 195.

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Moreover, in meetings with trial counsel, the

defendant consistently presented himself as

a responsible father and maintained that he

had committed the crime in self-defense. Id.

at 226, 820 N.E.2d 195. The Commonwealth

argues that trial counsel similarly lacked

notice of the defendant's mental problems in

this case, and that a defense based on a lack

of criminal responsibility would have been

inconsistent with the defendant's adamant

and unfailing denial of any involvement in

the killing.

Although the question is a close one, we

are ultimately convinced that trial counsel's

assistance was not ineffective. It remains the

case that an attorney's own assessment of her

client cannot replace the opinion of a mental

health professional with expert training, see

Commonwealth v. Roberio, supra at 279 n. 2,

700 N.E.2d 830; however, here, there were

no facts known or accessible to trial counsel

that would have put her on notice of the

need to obtain a psychiatric evaluation of her

client, even after she conducted additional

investigation.

Trial counsel met with the defendant

approximately twelve times. During those

meetings, the defendant did not appear

to be suffering from psychiatric problems,

nor did he report any prior hallucinations.

Although he discussed his history of chronic

methamphetamine abuse, and the fact that

he had been treated for alcohol abuse as a

teenager, he stated that he was not under

the influence of methamphetamine at the

time of the stabbing, nor had he consumed

the drug that day. There is no suggestion

in the record that he told counsel of any

prior psychotic episodes or hallucinatory

behavior. The defendant complied with

counsel's recommendations as to how to

conduct himself during the arraignment,

and did not exhibit hallucinatory behavior

either during trial preparation or during the

trial itself. There are likewise no reports in

the record of the defendant suffering from

any hallucinations or psychotic episodes

while incarcerated awaiting trial. As in

Commonwealth v. Walker, supra at 226,

820 N.E.2d 195, where the *475 defendant

consistently maintained that he was acting in

self-defense, here, too, the defendant claimed

innocence, thus presenting trial counsel with

a theory of defense to pursue at trial other

than lack of criminal responsibility. Indeed,

the two discussed strategy at their many

meetings.

In addition to meeting with the defendant

on twelve occasions, trial counsel actively

communicated with the defendant's mother.

Counsel asked her about the incident

involving treatment at a rehabilitation center

for alcohol abuse that the defendant had

discussed with her. The defendant's mother

indicated that the care the defendant had

received was not, in fact, related to alcohol,

but that when he was fifteen or **907

sixteen years old, 9 the defendant had had a

“break” for which he received mental health

treatment. Counsel attempted to obtain

the medical records, almost twenty years

old, from the treatment facility, but was

unsuccessful in doing so.

However, there is no evidence that the

defendant's mother discussed with trial

counsel the incident that the mother later

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recounted in her affidavit submitted in

connection with the defendant's second

motion for a new trial, where she spoke

of the defendant “talking crazy” and being

taken to the hospital, over ten months

before the stabbing. There is likewise no

evidence that the hallucinations described

by other family members in affidavits,

submitted ten years after the stabbing, were

recounted to counsel before the trial in

2003. In addition to speaking with the

defendant's mother, counsel spoke with the

defendant's ex-wife, with his brother Gary,

and with his cousin Thomas in preparing

her defense. None of them mentioned that

the defendant was suffering or had suffered

from psychiatric problems, nor did any

speak of the defendant having experienced

hallucinations at any point.

Thus, the only information concerning

possible mental illness of which trial counsel

was on notice was a “break” that had

occurred while the defendant was a teenager,

approximately two decades earlier. After

interviewing four different family members

and attempting to locate nearly twenty year

old medical records, counsel had no concrete

information available to her *476 regarding

the defendant's current mental state that

would have suggested a defense of lack of

criminal responsibility. Cf. Commonwealth

v. Walker, supra at 225, 820 N.E.2d 195

(counsel was informed that defendant had

attempted suicide thirteen years earlier, but

such incident did not suggest that defendant

was suffering from mental illness).

We recognize that, given the unusual

and apparently motiveless circumstances

of the crime, the defendant's flat

affect, the Commonwealth's forensic and

eyewitness evidence, and the defendant's

history of methamphetamine abuse, another

attorney might well have investigated the

psychological effects of this type of drug

abuse to determine whether it would have

had a possible connection with the crime.

Research into the effects of long-term

methamphetamine abuse would presumably

have revealed the extant DSM chapter on

amphetamine-induced disorders, including

amphetamine-induced psychotic disorder

with hallucinations, 10 as well as academic

literature on the spontaneous recurrence

of methamphetamine-induced psychosis. In

light of the strong evidence against him,

establishing that the defendant was suffering

from methamphetamine-induced psychosis

at the time of the stabbing might have been

a more powerful defense.

However, in the circumstances here,

particularly where trial counsel was not on

notice of the defendant's belatedly-asserted

prior psychotic episodes and hallucinations,

she was not under a constitutional duty

to undertake a supplemental investigation.

This is especially so given the limited

prevalence of methamphetamine use in the

Commonwealth in the early 2000s, and

the attendant limited exposure of attorneys

to methamphetamine-related **908 crimes

at that time. Trial counsel testified at the

hearing on the second motion for a new

trial that, at the time of trial preparation,

methamphetamine was “not something

that was common yet to our area.”

Presskreischer, the psychologist, who opined

that the defendant was “most likely” 11

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suffering from a *477 spontaneous

recurrence of methamphetamine-induced

psychosis, acknowledged that she had

no professional experience with psychosis

induced by methamphetamine in particular,

since that drug is not as common in the “midAtlantic States” as it is in other parts of

the country. Indeed, a 2001 report on drug

prevalence in the Commonwealth notes that,

at the time,

“[m]ethamphetamine [was] available in

small quantities in Massachusetts, but the

drug [was] not a significant threat to users

or society. Some reporting occasionally

suggest[ed] that methamphetamine might

be growing in popularity in New England,

but the region [had] yet to see a widespread

increase in trafficking, distribution, or use.

Methamphetamine production occur[ed]

in Massachusetts on only a very small

scale.”

National Drug Intelligence Center,

Massachusetts Drug Threat Assessment

at 32 (2001).

We discern no error in the judge's

determination that the defendant did not

demonstrate that facts known or accessible

to trial counsel would have put her on

notice of a potential mental health defense.

Nor do we discern error in his conclusion

that trial counsel's failure to investigate a

mental health defense did not fall below

constitutional standards of competency.

Accordingly, because the defendant was

not deprived of the effective assistance of

counsel, the motion for a new trial properly

was denied.

f. Relief under G.L. c. 278, § 33E. We

have conducted plenary review of the entire

record pursuant to our obligation under

G.L. c. 278, § 33E. We are satisfied that

the defendant did not receive ineffective

assistance of counsel and that he was

afforded a fair trial. The extraordinary

remedy of relief under G.L. c. 278, § 33E, is

not warranted in the circumstances of this

case, and therefore, we decline to disturb the

jury's verdict.

Judgment affirmed.

Orders denying motions for a new trial

affirmed.

All Citations

467 Mass. 456, 5 N.E.3d 891

Footnotes

Because they share a last name, we refer to husband and wife Gary Spray and Monica Spray by their first names. For

consistency, we also refer to the defendant's cousins Thomas Barron and Terry Barron by their first names.

The defendant was known by his middle name, Merle.

Gary testified that he had given police information regarding the weapon only because police threatened that, if he did not

do so, neither he nor Monica nor Thomas would be permitted to leave the Commonwealth. The officers denied making

any threats.

One of the general contractor's employees also testified at trial that he had seen a green-handled knife with a serrated

edge on the floor beside the defendant while he was working on Friday afternoon. While Gary acknowledged having

identified the weapon, he denied that the knife produced at trial belonged to the defendant. The defendant also denied

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5 N.E.3d 891

that the knife produced at trial belonged to him, and stated that he did not bring his green knife with him on the trip from

Oklahoma to Massachusetts.

As part of the booking process, the defendant was advised of the Miranda rights, a printed copy of which also appeared

on the booking sheet.

The defendant's shirt cuff was the only portion of his clothing that tested positive for human blood.

Dr. Helene Presskreischer declined to give her opinion to a reasonable degree of psychological certainty.

Presskreischer's conclusions were founded on, inter alia, four meetings with the defendant that lasted a total of

approximately eight hours; affidavits from and communications with the defendant's friends, family, and trial counsel; the

defendant's medical records; and deposition testimony from a psychiatrist retained by the decedent victim's estate in a

related civil proceeding, who concluded, to a reasonable degree of medical certainty, that the defendant stabbed the

victim while in a state of drug-induced psychosis.

The defendant was thirty-three years old at the time of the stabbing.

The DSM chapter available, however, would not have included the diagnosis of spontaneous recurrence of

methamphetamine-induced psychosis, the diagnosis that the defendant's expert proffered at the motion for new trial

hearing in 2012 to characterize the defendant's mental state at the time of the stabbing, over a decade earlier.

See footnote 7, supra.

End of Document

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28 U.S.C.A. § 2254

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the

applicant.

(2) An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts

of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be

estopped from reliance upon the requirement unless the State, through counsel, expressly

waives the requirement.

courts of the State, within the meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question presented.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States;

(2) resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court

proceedings, the court shall not hold an evidentiary hearing on the claim unless the

applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

A. 56

(ii) a factual predicate that could not have been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and

convincing evidence that but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State court

proceeding to support the State court's determination of a factual issue made therein, the

applicant, if able, shall produce that part of the record pertinent to a determination of the

sufficiency of the evidence to support such determination. If the applicant, because of

indigency or other reason is unable to produce such part of the record, then the State shall

produce such part of the record and the Federal court shall direct the State to do so by

order directed to an appropriate State official. If the State cannot provide such pertinent

part of the record, then the court shall determine under the existing facts and

circumstances what weight shall be given to the State court's factual determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such

court to be a true and correct copy of a finding, judicial opinion, or other reliable written

indicia showing such a factual determination by the State court shall be admissible in the

Federal court proceeding.

(h) Except as provided in section 408 of the Controlled Substances Act, in all

proceedings brought under this section, and any subsequent proceedings on review, the

court may appoint counsel for an applicant who is or becomes financially unable to afford

counsel, except as provided by a rule promulgated by the Supreme Court pursuant to

statutory authority. Appointment of counsel under this section shall be governed by

section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.

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Massachusetts General Law, c. 123 § 15

§ 15. Competence to stand trial or criminal responsibility; examination; period of

observation; reports; hearing; commitment; delinquents

(a) Whenever a court of competent jurisdiction doubts whether a defendant in a criminal

case is competent to stand trial or is criminally responsible by reason of mental illness or

mental defect, it may at any stage of the proceedings after the return of an indictment or

the issuance of a criminal complaint against the defendant, order an examination of such

defendant to be conducted by one or more qualified physicians or one or more qualified

psychologists. Whenever practicable, examinations shall be conducted at the court house

or place of detention where the person is being held. When an examination is ordered, the

court shall instruct the examining physician or psychologist in the law for determining

mental competence to stand trial and criminal responsibility……

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.