 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Yancy10/21/2003
te the killings.
2. Assistance of counsel.
The defendant argues that he was denied effective assistance of counsel because his trial counsel failed to call Dr. Hill, whose testimony was necessary to the proper presentation of his defense, and that such failure deprived him of a substantial ground of defense. At the hearing on the defendant's motion for a new trial, counsel testified that he engaged Dr. Hill to perform a SPECT scan of the defendant's brain based on the recommendation of Dr. Bursztajn, who said that it might produce relevant information on the issue of the defendant's mental capacity. Counsel had met with Dr. Bursztajn at least fifteen times to prepare for trial. Part of that preparation included the testing done by Dr. Hill. There is no suggestion that counsel ever discussed the defendant's SPECT scan results with Dr. Hill, but Dr. Bursztajn had discussed the defendant's SPECT scan with Dr. Hill. Counsel had intended to call Dr. Hill to testify about the SPECT scan, but learned on the eve of trial that Dr. Hill would not be available to testify because of a planned vacation in Florida. Counsel did not request a continuance of the trial based on this development. Counsel offered no tactical reason for proceeding without Dr. Hill, except to say, " y main focus was Doctor Bursztajn['s] testifying before the jury about [the defendant's] mental state, which I thought was what the case was all about, and Doctor Hill's SPECT test was a vehicle to get us to Doctor Bursztajn's testimony."
The defendant argues that the failure to call Dr. Hill left the burden of presenting the SPECT scan evidence to Dr. Bursztajn, who was not qualified to make that presentation, and his presentation was unimpressive. He further contends that Dr. Bursztajn failed in three particular areas that would have benefited from Dr. Hill's testimony, namely: (1) he failed to offer any evidence of the frontal lobe abnormalities of the defendant's brain, which the defendant contends is "the seat of man's cognitive powers"; (2) he failed to present evidence that the defendant's temporal lobe abnormality was "unusual, unexpected, and dramatic," and that such abnormalities appear much more frequently in persons who suffer seizures and psychiatric disorders; and (3) even if Dr. Hill had testified only on surrebuttal, he could have refuted virtually everything said by Dr. Kelly that downplayed the significance of SPECT scans.
Our review under G. L. c. 278, § 33E, of claims of ineffective assistance of counsel is more favorable to a defendant than the constitutional standard of review of such claims. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992). We consider "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." Id. Because there was no tactical basis for counsel's decision not to call Dr. Hill or to seek a continuance of the trial to a time when he would be available to testify, we do not apply the "manifestly unreasonable" test. See Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
Although Dr. Bursztajn did not offer any evidence on the defendant's frontal lobe abnormalities, Dr. Hill's testimony would not have aided the defense in any of the ways asserted. Dr. Hill was admittedly not a psychiatrist, and during the hearing on the motion for a new trial, he resisted every effort to elicit an opinion as to how such an abnormality might affect the defendant's behavior. He described the defendant's frontal lobe abnormalities as "subtle" or "small."
At the hearing on the motion for a new trial, Dr. Hill agreed that the defend
Page 1 2 3 4 5 6 7 Massachusetts DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|