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Commonwealth v. Yancy10/21/2003
Essex.
September 8, 2003
Homicide. Intent. Mental Impairment. Intoxication. Evidence, Intent, Intoxication. Constitutional Law, Assistance of counsel. Practice, Criminal , Capital case, Assistance of counsel, Instructions to jury. Witness, Expert, Unavailability.
The defendant was convicted of deliberately premeditating the murder of his girl friend, Diane Aleksa, and his estranged wife, Sylvia Ann Holland Yancy, on November 6, 1994, in Lynn. The defense was lack of capacity to specifically intend and deliberately premeditate the killings. The defendant filed a motion for a new trial in which he alleged that trial counsel's failure to call Dr. Thomas C. Hill, a neuroradiologist who performed a single photon emission computerized tomography (SPECT) scan of the defendant's brain, to testify about the defendant's organic brain defect, "denuded of a defense" and thereby denied him the effective assistance of counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The trial judge had retired, and the motion for a new trial was heard by a different judge, who denied the motion. The defendant appealed from the denial of his motion for a new trial, which has been consolidated with this direct appeal. On appeal, the defendant argues that he is entitled to a new trial either because he was denied the effective assistance of counsel, or because the judge's instructions on mental impairment were inadequate. In the alternative, he asks us to exercise our power under G. L. c. 278, § 33E, to reduce the convictions to murder in the second degree. We affirm the convictions and decline to reduce them. We also affirm the denial of the defendant's motion for a new trial.
1. Background.
The defendant did not contest the fact that he shot the victims. The focus of the defense at trial was that, because of an organic brain defect and intoxication by alcohol and drugs, there was a reasonable doubt that the defendant had the capacity deliberately to premeditate or to form the specific intent to kill. Defense counsel elicited or stressed evidence to support the defense, and he called a forensic psychiatrist to give opinion testimony.
By early November, 1994, the defendant had been separated from his wife for approximately six months, and he was living with his girl friend. The wife and girl friend lived within five blocks of one another in Lynn. The defendant had a long-standing problem with alcohol. He had been using cocaine for about one year, and on occasion he would take Valium or use marijuana. Because he had been drinking heavily, the defendant had been unable to work for several days at the two jobs he held, one as a cook and the other as a janitor. The defendant was prone to depression and mood swings. He had suffered a serious head injury in the past.
At approximately noon on Saturday, November 5, the defendant telephoned his cousin, Donald, and asked for help. Donald went to the defendant's apartment, where he found the defendant intoxicated, crying, and contemplating suicide. Donald saw an assortment of drugs in plain view. They went out for a ride, and Donald agreed to take the defendant to a detoxification center the following Monday.
The two men then went to the apartment shared by their mothers. The defendant told his mother that he was going to get help and that he wanted her to hold his insurance papers until he returned from treatment. The defendant's daughter visited her grandmother while the defendant was there. She took a walk with the defendant, and he told her that he was tired of living and intended to kill himself. She asked him, "What about
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