420 Mass. 1003

June 1, 1995

Joseph F. Krowski for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

The Commonwealth appeals from an order of a judge of the Superior Court, who was the trial judge, allowing the defendant's motion for a new trial. A jury had convicted the defendant on the charge of murder in the first degree on April 23, 1987. Following the withdrawal of the defendant's trial counsel, his appellate counsel filed a motion for a new trial in this court. The defendant claimed ineffective assistance of counsel at trial. The motion was transferred to the Superior Court for disposition. After conducting a hearing, the judge found that the defendant's counsel had failed to investigate fully the possibility that the defendant was suffering from a mental impairment. The judge concluded that the defendant had received ineffective assistance of counsel, and she granted the defendant's motion for a new trial. The judge heard no testimony on the new trial motion and made her decision solely on the basis of affidavits and legal arguments. We vacate the judge's order granting the defendant's motion for a new trial because the record is insufficient to support such an order. Among other issues, the present record fails to show whether the defendant actually suffered from an impairment at the time of the murder and, if evidence existed to support an issue as to impairment, whether the failure to raise the issue was the result of trial strategy.

We are not, however, ruling as a matter of substance. Rather, we remand the case to the trial judge with the following instructions: (1) conduct a full evidentiary hearing on the motion for a new trial; (2) receive testimony from the defendant's trial counsel regarding the nature and extent of the defendant's instructions to him concerning trial strategy; and finally, (3) the judge shall enter a new order on the motion and, if the motion is granted, indicate whether, and in what respects, she relied on any special knowledge that she had garnered during the course of the trial about the effectiveness of defense counsel.

The order granting the motion for new trial is vacated and the case remanded for further proceedings consistent with this opinion.

So ordered.