Com. v. Doane, SJC-07515

• Citation: 704 N.E.2d 174,428 Mass. 631
• Decision Date: 11 January 1999
• Docket Number: No. SJC-07515,SJC-07515
• Parties: COMMONWEALTH v. Christopher Ray DOANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 174

704 N.E.2d 174

428 Mass. 631

COMMONWEALTH v. Christopher Ray DOANE.

No. SJC-07515.

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 8, 1998.

Decided Jan. 11, 1999.

Steven J. Rappaport, Boston, for the defendant.

Marcia H. Slingerland, Assistant District Attorney (George O'Connor, Assistant District Attorney, with her) for the Commonwealth.

Before WILKINS, C.J., LYNCH, GREANEY, FRIED and IRELAND, JJ.

FRIED, Justice.

Doane appeals from an adjudication of delinquency by reason of murder in the first degree. The jury specifically found both deliberate premeditation and extreme atrocity or cruelty. The direct entry of the appeal in this court was improper. General Laws c. 278, § 33E, allows for direct entry of an appeal in this court only in a case "in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree." An adjudication of delinquency, even though by reason of murder in the first degree, does not fit within this definition, nor does it receive the severe sanction of life imprisonment without possibility of parole, which is the reason for direct entry and plenary review of the record here under G.L. c. 278, § 33E. See Commonwealth v. Kent K., 427 Mass. 754, 763, 696 N.E.2d 511 (1998). Today we proceed to decide the case. In the future, we shall transfer such a case improperly entered in this court on discovery of the error, G.L. c. 211, § 4A, as it is jurisdictional.

Doane claims that he was denied effective assistance of counsel because his trial counsel's closing argument amounted to an abandonment of the only defense available to him. On review of the whole record, we conclude that counsel made a reasonable tactical decision in the face of an overwhelming case for delinquency by the prosecution. The judgment is affirmed.

It is sufficient to recount that Doane and some other men, who had been drinking malt liquor, went into a wood with a rifle and some bullets. The victim, with whom Doane believed he had cause to be angry, was in the group, and one of the witnesses testified that, as they were walking to the woods, Doane had said that he was going to shoot the victim. The members of the group took turns shooting at a tree. At some point, there was a shot and a scream, and the victim fell to his knees. The victim said that Doane had shot him. Doane then came closer to the victim and shot him again in the face, hit him over the head with the rifle butt with enough force to break the rifle, and dropped a rock on the back of the victim's head. Three witnesses testified to this same effect. The cause of death was multiple gunshot wounds and blunt force injuries to the head. One of the gunshot wounds was to the victim's thigh, and the other, below the left jaw, appeared to have been inflicted with the barrel of the gun pressed directly against the skin. Doane testified that he had been drinking and had taken three Xanax pills before the group went into the woods, and that he felt drunk and "pilled out." He testified that he had shot the victim at the direction of another member of the group. He admitted that he hit the victim with the rifle and dropped a rock on his head. This too, he suggested, was at the direction of another member of the group.

It is evident from the record that the defense strategy was to cast doubt on whether Doane's state of mind warranted the jury's finding that he had acted with deliberate premeditation or extreme atrocity or cruelty. He adduced testimony that Doane, who was sixteen years old at the time of the killing, had been drinking, had taken Xanax, and had acted under the influence and direction of one of the members of the group. Defense counsel asked for and received an instruction that the jury could take into account "evidence of the effects of Doane's consumption of drugs in deciding whether the Commonwealth has met its--or alcohol--in determining whether the Commonwealth has met its burden of proving the defendant's state of mind beyond a reasonable doubt." Indeed, the judge repeated this point several times and in several contexts. Defense counsel also sought to cast doubt on the credibility of the eyewitnesses to the killing by suggesting that they had gotten together to concoct a version of events that would be most damaging to Doane and by bringing out that they had made arrangements for favorable treatment by the Commonwealth.

The only claim Doane makes now...