COMMONWEALTH vs. JEFFREY S. ROBERIO.

ABRAMS, J. The defendant appeals from convictions of murder in the first degree and armed robbery and from the denial of his motion for a new trial. Represented by new counsel on appeal, the defendant argues that he is entitled to a new trial because he was denied effective assistance of counsel. After an evidentiary hearing, the judge determined that defense counsel's decision not to investigate a defense of lack of criminal responsibility fell measurably below the standard of an "ordinary, fallible lawyer" and that his decision was "manifestly unreasonable."

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The judge concluded that, despite that failure, the defendant was not deprived of an otherwise available ground of defense. We do not agree. We reverse and remand for a new trial.

On the evening of July 29, 1986, the defendant and Michael Eagles [Note 1] entered the Middleborough trailer home of the victim, seventy-nine year old Lewis Jennings. The victim, who lived alone, kept cash in his trailer (denominations of one hundred, fifty, and twenty dollar bills). Late the next day, the victim's body was discovered. He had been beaten savagely with a blunt force object or instrument and strangled to death with his own pillow case. An autopsy revealed that the victim's spine, several ribs, and bones in his neck were fractured. The injuries to the victim's face and head were extensive, and he also had numerous lacerations on his right hand indicative of defensive wounds. The victim was alive at the time the injuries were inflicted. An undetermined amount of money, a shotgun, and various items of personal property were stolen from the victim's home.

1. Ineffective assistance of counsel. The judge, in his decision denying the defendant's motion for new trial, found the following facts as to the issue of criminal responsibility. Prior to trial, defense counsel had notice of a potential issue of lack of criminal responsibility. The defendant's parents told defense counsel that, before this crime and before trial, the defendant had received mental health treatment at the suggestion of the police. Defense counsel did not investigate that information, nor did he attempt to obtain any information from the local mental health center. Defense counsel also chose not to ask the defendant to submit to a psychiatric evaluation. Instead, defense counsel made his own assessment of the defendant's mental health. [Note 2]

We have said "[f]ailure to investigate an insanity defense

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[falls] below the level of competence demanded of attorneys, if facts known to, or accessible to, trial counsel raised a reasonable doubt as to the defendant's mental condition." Commonwealth v. Doucette, 391 Mass. 443, 458-459 (1984). Relying on Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the judge correctly concluded that defense counsel's decision not to investigate the possibility of presenting expert testimony was unreasonable and that "the 'ordinary, fallible lawyer' would have at least undertaken an investigation [of] the viability of presenting expert psychiatric testimony" in defense of a client.

On appeal, we review the defendant's claim under G. L. c. 278, s. 33E. See Commonwealth v. Wright, 411 Mass. 678 (1992). At the hearing on the motion for a new trial, the defendant also offered the testimony and a report of a clinical psychologist. It was the psychologist's opinion that the defendant, at the time of the homicide, to a reasonable degree of scientific certainty, suffered from at least three mental diseases or defects: attention deficit hyperactivity disorder (ADHD); traumatic brain injuries; and a language learning disability. The psychologist noted that the defendant's ADHD and learning disability are both characterized by "failure in the normal development of the brain," while the traumatic brain injuries suffered by the defendant were caused by two falls, one from a tree and the other from a roof. The psychologist stated that these neurological impairments were compounded by the effects of alcohol, [Note 3] the consumption of which the defendant was unable to resist as a result of his mental defects, rendering the defendant "unable to conform his conduct to the requirements of the law." According to the psychologist's testimony, the defendant also suffered from oppositional defiant disorder (ODD) and substance abuse mood disorder (also referred to as pathological intoxication). The psychologist explained that ODD was manifested in the defendant's impulsiveness and distractibility, and that pathological intoxication refers to the tendency of the personality of the sufferer to change when he drinks

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alcohol. The psychologist also said that, when the defendant's disorders are combined with his use of alcohol, "it makes him essentially unable to control his behavior." The psychologist concluded that, at the moment that the defendant entered the victim's home, "he lacked the ability to conform his conduct to the requirements of the law." Based on this testimony, the jury might have concluded that the defendant thus met the test of Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). In view of the psychologist's testimony, lack of criminal responsibility would have been a substantial defense.

In reviewing the defendant's claim of ineffective assistance of counsel, where the trial judge has determined that defense counsel was ineffective in not raising a substantial available defense, the issue is limited to whether counsel's failure to raise a substantial available defense was likely to have influenced the jury's conclusion. Commonwealth v. Wright, 411 Mass. 678, 682 (1982). A jury that believed the defendant's expert likely would have been influenced to return a verdict of not guilty by reason of insanity. It was not proper for the trial judge, having found ineffective assistance for failure to raise that defense, to then remove the issue of credibility of that defense from the jury. The judge's inquiry should have ended when he concluded that the defendant was deprived of a substantial available defense.

The judge reached his conclusion that a new trial was not needed because, in his view, the psychologist was not credible. [Note 4] Once the expert's qualifications were established and assuming the expert's testimony met the standard of Commonwealth v. Lanigan, 419 Mass. 15 (1994), the issue of credibility was for a jury, not the judge. See Leibovich v. Antonellis, 410 Mass. 568, 573 (1991). We evaluate the defendant's evidence in the light most favorable to him to determine whether it might have influenced a jury's conclusion. The fact that the witness was weakened by cross-examination is not relevant in deciding the new trial question. See Commonwealth v. Street, 388 Mass. 281, 286 (1983). [Note 5] It was error for the judge to deny the motion for a

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new trial based on his assessment of the expert's credibility. [Note 6]

2. Issues likely to arise at a new trial. The defendant was convicted of armed robbery and murder in the first degree on the basis of premeditation, extreme atrocity or cruelty, and felony-murder. The defendant asserts that the robbery merged with the conviction for murder in the first degree and therefore cannot stand. We do not agree.

The numerous assaults on the victim after the initial robbery assault were sufficiently independent to support the felony-murder conviction and did not require the felony to be merged with the homicide. The separate acts of personal violence permit a conviction of both the murder and the robbery. See Commonwealth v. Gunter, 427 Mass. 259, 274 (1998). The defendant also asserts that the judge did not require the jurors to find that the defendant acted with malice as well as the intent to commit the armed robbery in his instructions on felony-murder. There was no error. We rejected that argument in Commonwealth v. Moran, 387 Mass. 644, 649 (1982) (intent to commit felony is substitute for malice aforethought). See Commonwealth v. Matchett, 386 Mass. 492, 502 (1982).

The order denying the defendant's motion for a new trial is reversed. The judgments are reversed, the verdicts of murder in the first degree and armed robbery are set aside, and the case is remanded to the Superior Court for a new trial. [Note 7]

So ordered.