Com. v. Domaingue

• Decision Date: 10 August 1979
• Citation: 8 Mass.App.Ct. 228,392 N.E.2d 1207
• Parties: COMMONWEALTH v. James E. DOMAINGUE.
• Court: Appeals Court of Massachusetts

Page 1207

392 N.E.2d 1207

8 Mass.App.Ct. 228

COMMONWEALTH v. James E. DOMAINGUE.

Appeals Court of Massachusetts, Berkshire.

Argued May 21, 1979.

Decided Aug. 10, 1979.

Michael L. Altman, Boston, for defendant.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before GOODMAN, ROSE and GREANEY, JJ.

GREANEY, Justice.

The defendant appeals from his conviction by a Berkshire county jury on two indictments charging him with assault and battery by means of a dangerous weapon on Harmon Strong and John Brooke. G.L. c. 265, § 15A. His contentions on appeal concern the propriety of the trial judge's instruction on self-defense and his trial attorney's lack of reaction thereto. ¹ He argues that the instruction was in error and that the failure of his counsel to request a proper instruction on the issue of self-defense and to object and except to the charge amounted to ineffective assistance of counsel requiring a reversal to prevent a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). Commonwealth v. Stokes, --- Mass. ---, --- - --- ^A, 374 N.E.2d 87 (1978). The Commonwealth argues to the contrary, that the self-defense portion of the charge was proper, and asserts that the lack of objection and exception precludes relief. Commonwealth v. Fluker, --- Mass ---, --- ^b, 385 N.E.2D 256 (1979). As to the defendant's attack on one victim (Strong) there was no evidence which would entitle him to an instruction as to self-defense. As to the second victim (Brooke), we conclude that the evidence required an instruction on the topic, but that defense counsel's failure to object and except to the instruction does not require reversal on the ground of ineffective assistance of counsel. As a result, we affirm the convictions.

The trial was short, and to frame the issues for discussion it is useful to summarize the bulk of the material evidence, the actions of defense counsel at critical times, and the judge's instructions on self-defense. The incident culminating in the defendant's arrest and indictment occurred on June 6, 1976, between the hours of 12:15 a. m. and 12:50 a. m. in a bar in West Stockbridge. The defendant was present in the bar carrying a hunting knife with a three inch blade "in his right rear pocket, hooked over his belt." He was with a companion who was "between six foot three and six foot four, weighed about two hundred and fifty pounds (and) had a black leather jacket with an insignia on the back of it." There were about 120 patrons present in the bar, including the victims, Harmon Strong and John Brooke, and some of their friends. About 12:15 a. m. Strong requested a song on the record player which was refused. Someone threw a cigarette at Strong. Thereafter, Strong engaged the defendant and his companion in a conversation of about five minutes' duration. In the course of the discussion, the defendant took a half gallon wine bottle, swung it at Strong and stunned him. Strong "went after" the defendant and was thrown to the floor by the defendant's companion. Cross-examination of Strong established that the incident took place in a room in the bar used as a poolroom, that Strong was not hurt by the blow with the wine bottle, and that he needed no medical attention.

An acquaintance of Strong, John Brooke, observed what he thought was a heated argument between Strong and the defendant. Brooke testified that he saw the defendant hit Strong over the head with a bottle. Brooke left the bar area with a bottle of beer in his hand, and as he tried to get between the defendant and Strong the defendant "grabbed me with my left hand to my left shoulder, struck me in this side (left side) with the knife, and threw me on the ground." Brooke stood up, was told he was bleeding, and immediately left. He was later hospitalized and had his spleen removed as a result of the knife wound. Cross-examination of Brooke established that he "jumped in" to help Strong and began moving towards the defendant for the purpose of "interfering with something that had nothing to do with (himself)," while holding a beer bottle in his hand.

William Crowe testified that he was in the bar that night, and that prior to the incident the defendant had walked around and talked to several persons. Crowe overheard him using "four-letter words and syllables" and noticed that the defendant was carrying a knife. He observed the defendant hit Strong with the bottle, saw the defendant start to back away from Strong, and then observed the defendant "take the knife out of somebody." He then observed that person, identified as Brooke, get up quickly and leave. After this the defendant brandished the knife in his hand and "threatened everybody in the room by saying, 'Does anybody else want it? Come on.' " Strong at this point had a pool ball in his hand, but did nothing with it because "he was being restrained by several people." The defendant then put the knife away, picked up pool balls and "made motions to throw them (but) did not throw them." Cross-examination established only that Crowe had a pool cue in his hand but did nothing with it.

Chad McCormick was also present in the bar that night and testified that shortly after 10:30 p.m. the defendant was "acting quite boisterous" and interfered with the pool game McCormick was playing.

Two other witnesses were called by the Commonwealth but contributed nothing, either in direct or cross-examination, to the events of the evening as previously developed.

The defendant gave testimony, and professed that during the episode he was taken with drink, having consumed in the course of the day and evening three half gallons of wine, "some beer and . . . a half pint of Southern Comfort." He only vaguely remembered a conversation with Strong. He had no recollection at all of hitting Strong with a bottle or of "sticking" Brooke with a knife. He last recalled being told to leave by the bouncer; thereafter, he woke up the next afternoon and was told by his wife to "call somebody to find out what happened."

This is, in effect, all of the evidence presented at the trial. In preparation for the judge's charge, defense counsel requested instructions on self-defense and insanity. ² Defense counsel then argued to the jury that Strong had not been assaulted, that Brooke had attacked the defendant, and that the defendant had retaliated because he was in "mortal fear." He also told the jury that as a result of voluntary intoxication the defendant was incapable of forming any criminal intent and the "possibility" existed that "Mr. Domaingue thought he was acting in self-defense . . . ." The Commonwealth made appropriate countervailing argument. The judge instructed the jury on the usual matters, including the substantive elements of the crime charged and the Commonwealth's burden of establishing guilt beyond a reasonable doubt, emphasizing at least twice that the Commonwealth bore this burden as to each and every element of the crime under consideration. His instructions on the topic of self-defense are set forth in the margin. ³ At the conclusion of the charge, defense counsel took exception to the judge's failure to instruct the jury in accordance with his request on the topic of insanity. No objection or exception was lodged against the instruction on self-defense.

The defendant, represented now by counsel other than his trial counsel, recognizes that since these cases were tried subsequent to the decision in Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976) (which placed the burden of persuasion on a justification issue on the Commonwealth), failure to object and except to a charge on the topic of self-defense which is thought to be erroneous will ordinarily preclude appellate relief. This rule was strongly put in Commonwealth v. Fluker, --- Mass. --- ^C, 385 N.E.2d 256 (1979), a decision dealing with a charge as to justification in a case tried after Rodriguez, where the court observed that " 'the administration of criminal justice is badly served when serious allegations of error in trial or pre-trial rulings are asserted for the first time at the appellate level.' " Id. at --- - --- ^D, 385 N.E.2d at 261, quoting from Commonwealth v. Collins --- Mass. ---, --- ^E, 373 N.E.2d 969 (1978).

Seeking a detour around this barrier, the defendant claims that he was ineffectively assisted by his trial counsel. Quite recently the standard for measuring effective assistance of criminal counsel has been formulated in these terms: "whether there has been serious incompetency, inefficiency, or inattention of counsel behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Rondeau, --- Mass. ---, --- ^F, 392 N.E.2d 1001 (1979), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See also Osborne v. Commonwealth, --- Mass. ---, --- ^G, 389 N.E.2d 981 (1979) (conduct "within the range of competence demanded of attorneys in criminal cases"). This is essentially the same test applied by the majority of the Federal Courts of Appeal (Commonwealth v. Rondeau, Supra --- Mass. at --- n.3) ^H, 392 N.E.2d 1001 including the First Circuit ("reasonably competent assistance," United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978)). The test envisages a two-step inquiry, a showing of incompetence of counsel, and a demonstration of prejudice resulting therefrom. Commonwealth v. Rondeau, Supra --- Mass. at --- ^I, 392 N.E.2d 1001. Like all tests for effectively solving legal problems, it cannot be applied mechanically for the law is not geometry but instead it requires "a discerning examination and appraisal of the specific circumstances of the given case" (Commonwealth v. Saferian, Supra 366 Mass. at 96, 315 N.E.2d 878, at 883), with the...