Ortiz v. Dubois
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Ortiz v. Dubois, (1st Cir. 1994).
Opinion
USCA1 Opinion
March 28, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1656
JUAN R. ORTIZ,
Petitioner, Appellant,
v.
LARRY DUBOIS,
Respondent, Appellee.
____________________
ERRATA SHEET
The opinion of this court issued on March 24, 1994, is amended as
follows:
On page 17, lines 4-6, change "we do not believe that appellant
could meet the burden recently placed on him by the Supreme Court:
that the instructional error" to "we believe that the government has
met its burden of demonstrating that the error did not".
On page 17, line 6, change "had" to "ha[ve]".
On page 24, line 14: Change "February" to "March".
UNITED STATES COURT OF APPEAL
FOR THE FIRST CIRCUIT
____________________
No. 93-1656
JUAN R. ORTIZ,
Petitioner, Appellant,
v.
LARRY DUBOIS,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
John M. Thompson, with whom Linda J. Thompson was on brief for
_________________ __________________
appellant.
Nancy W. Geary, Assistant Attorney General, with whom Scott
________________ _____
Harshbarger, Attorney General, was on brief for appellee.
___________
____________________
March 24, 1994
____________________
BOWNES, Senior Circuit Judge. This is an appeal
BOWNES, Senior Circuit Judge.
_____________________
from the denial of a habeas petition filed by Juan Ortiz
challenging his Massachusetts felony-murder conviction.
Appellant argues that his right to due process of law under
the Fourteenth Amendment was violated because: (1) the jury
was not instructed to find all of the essential elements of
felony-murder beyond a reasonable doubt; (2) the
Massachusetts Supreme Judicial Court (SJC) affirmed his
felony-murder conviction applying a legal theory not
presented to the jury; and (3) there was insufficient
evidence to support his felony-murder conviction under the
Commonwealth's theory of guilt. The district court denied
the petition. We affirm, but for reasons substantially
different than those expressed by the court below.
I.
I.
BACKGROUND
BACKGROUND
__________
We commence with a recitation of the pertinent
facts. Appellant's convictions are based on the events of
November 12, 1985. That evening, appellant and his brother,
Eduardo "Crazy Eddie" Ortiz, left their father's apartment at
8 Stebbins Street in Springfield, Massachusetts to search for
Jose Rodriguez. Apparently there was an ongoing dispute
between Eddie and various members of the Rodriguez family.
In addition, there was evidence that several members of that
family, one who was believed to be Jose, paid a visit to the
-2-
2
Stebbins Street apartment on the day in question looking for
Eddie. One of the visitors allegedly carried a gun.
Prior to departing with appellant, Eddie procured a
.357 Magnum and ammunition from his brother-in-law, which he
placed in his pants pocket. There was evidence to the effect
that appellant agreed to accompany Eddie in order to provide
"back up." On the other hand, appellant introduced evidence
that he vehemently opposed his brother's mission, and went
along in order to serve as a voice of reason.
With Eddie behind the wheel and appellant at his
side, the two drove off in search of their prey. En route,
Eddie pulled over to the curb, removed the gun and ammunition
from his pocket, loaded the gun, and placed it between
himself and his brother. After circling the intended
victim's block several times, the brothers were unable to
locate him, and returned to their father's apartment. Upon
their arrival in front of 8 Stebbins Street, a police cruiser
manned by two officers pulled up behind them. The driver of
the cruiser got out and approached the driver's side of the
Ortiz vehicle. As the officer attempted to open the driver's
side door, he was shot in the face and killed by Eddie. By
that time the second officer was trying to pull appellant out
of the passenger side door. Eddie shot and killed him as
well.
-3-
3
There was evidence that, as the officers approached
the vehicle, both appellant and his brother reached for the
gun, but Eddie got to it first. After the shooting, both
fled the scene. Appellant was apprehended shortly
thereafter. Eddie committed suicide before he could be taken
into custody.
On November 22, 1985 a five count indictment was
returned against appellant. He was charged with two counts
of second degree murder, one for the death of each officer,
unlawful carrying of a firearm under his control in a motor
vehicle, and attempted assault and battery with a dangerous
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USCA1 Opinion
March 28, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1656
JUAN R. ORTIZ,
Petitioner, Appellant,
v.
LARRY DUBOIS,
Respondent, Appellee.
____________________
ERRATA SHEET
The opinion of this court issued on March 24, 1994, is amended as
follows:
On page 17, lines 4-6, change "we do not believe that appellant
could meet the burden recently placed on him by the Supreme Court:
that the instructional error" to "we believe that the government has
met its burden of demonstrating that the error did not".
On page 17, line 6, change "had" to "ha[ve]".
On page 24, line 14: Change "February" to "March".
UNITED STATES COURT OF APPEAL
FOR THE FIRST CIRCUIT
____________________
No. 93-1656
JUAN R. ORTIZ,
Petitioner, Appellant,
v.
LARRY DUBOIS,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
John M. Thompson, with whom Linda J. Thompson was on brief for
_________________ __________________
appellant.
Nancy W. Geary, Assistant Attorney General, with whom Scott
________________ _____
Harshbarger, Attorney General, was on brief for appellee.
___________
____________________
March 24, 1994
____________________
BOWNES, Senior Circuit Judge. This is an appeal
BOWNES, Senior Circuit Judge.
_____________________
from the denial of a habeas petition filed by Juan Ortiz
challenging his Massachusetts felony-murder conviction.
Appellant argues that his right to due process of law under
the Fourteenth Amendment was violated because: (1) the jury
was not instructed to find all of the essential elements of
felony-murder beyond a reasonable doubt; (2) the
Massachusetts Supreme Judicial Court (SJC) affirmed his
felony-murder conviction applying a legal theory not
presented to the jury; and (3) there was insufficient
evidence to support his felony-murder conviction under the
Commonwealth's theory of guilt. The district court denied
the petition. We affirm, but for reasons substantially
different than those expressed by the court below.
I.
I.
BACKGROUND
BACKGROUND
__________
We commence with a recitation of the pertinent
facts. Appellant's convictions are based on the events of
November 12, 1985. That evening, appellant and his brother,
Eduardo "Crazy Eddie" Ortiz, left their father's apartment at
8 Stebbins Street in Springfield, Massachusetts to search for
Jose Rodriguez. Apparently there was an ongoing dispute
between Eddie and various members of the Rodriguez family.
In addition, there was evidence that several members of that
family, one who was believed to be Jose, paid a visit to the
-2-
2
Stebbins Street apartment on the day in question looking for
Eddie. One of the visitors allegedly carried a gun.
Prior to departing with appellant, Eddie procured a
.357 Magnum and ammunition from his brother-in-law, which he
placed in his pants pocket. There was evidence to the effect
that appellant agreed to accompany Eddie in order to provide
"back up." On the other hand, appellant introduced evidence
that he vehemently opposed his brother's mission, and went
along in order to serve as a voice of reason.
With Eddie behind the wheel and appellant at his
side, the two drove off in search of their prey. En route,
Eddie pulled over to the curb, removed the gun and ammunition
from his pocket, loaded the gun, and placed it between
himself and his brother. After circling the intended
victim's block several times, the brothers were unable to
locate him, and returned to their father's apartment. Upon
their arrival in front of 8 Stebbins Street, a police cruiser
manned by two officers pulled up behind them. The driver of
the cruiser got out and approached the driver's side of the
Ortiz vehicle. As the officer attempted to open the driver's
side door, he was shot in the face and killed by Eddie. By
that time the second officer was trying to pull appellant out
of the passenger side door. Eddie shot and killed him as
well.
-3-
3
There was evidence that, as the officers approached
the vehicle, both appellant and his brother reached for the
gun, but Eddie got to it first. After the shooting, both
fled the scene. Appellant was apprehended shortly
thereafter. Eddie committed suicide before he could be taken
into custody.
On November 22, 1985 a five count indictment was
returned against appellant. He was charged with two counts
of second degree murder, one for the death of each officer,
unlawful carrying of a firearm under his control in a motor
vehicle, and attempted assault and battery with a dangerous
weapon, all felonies.1 The Commonwealth informed appellant
that, with respect to the murder indictment, it would be
proceeding on a theory of felony-murder. It designated the
latter two felonies as predicates for the felony-murder
charge.
Appellant's trial commenced in January 1987. At
the close of the Commonwealth's case and again at the close
of all the evidence appellant unsuccessfully moved for
findings of not guilty on all counts. The jury found
appellant guilty on all counts. On attempted assault and
battery by means of a dangerous weapon, the jury convicted
____________________
1Appellant was also charged with unlawful possession of
ammunition, a misdemeanor. Although appellant was ultimately
convicted on this count, by agreement with the Commonwealth
he was never sentenced on it.
-4-
4
appellant of being a "joint venturer" with his brother. With
regard to the unlawful carrying charge, the jury found that
appellant "jointly possessed" the gun with his brother. By
special verdict, the jury found the unlawful carrying charge
to be the sole predicate felony underlying the felony-murder
convictions.
Subsequent to the close of the evidence but before
the judge instructed the jury, the Commonwealth informed the
court that, in connection with the unlawful carrying charge,
it would not be proceeding on a joint venture theory, but
rather on a basis that appellant "jointly possessed" the gun
with his brother. As a result, the judge did not instruct
the jury on joint venture principles as to the unlawful
carrying charge.2
____________________
2At a pre-charge conference after the close of the
evidence and just prior to the charge, the following
discussion took place:
The Court: As I understand the
Commonwealth's case, the joint venture
theory applies to the attempted A&B.
Commonwealth: Yes.
The Court: You understand that?
Defendant: I understand that.
The Court: It doesn't apply to the
carrying of the gun other than its your
contention there is joint possession of
the gun.
Commonwealth: Right, and joint
carrying, in that sense, when they
stopped the car, there's only one gun.
He took out the cartridges and loaded the
gun. In essence, at that stage, we are
saying that both of them were carrying
the gun.
-5-
5
After the jury rendered its verdict, appellant
renewed his motion for findings of not guilty. The motion
was denied in its entirety, and appellant appealed. On its
own initiative, the SJC removed the case from the Appeals
Court. The SJC affirmed the convictions for felony-murder
and unlawfully carrying a firearm in a vehicle. Finding no
overt act, however, it reversed the conviction for attempted
assault and battery by means of a dangerous weapon.
On direct appeal, appellant alleged, inter alia,
_____ ____
that the evidence was insufficient to support his felony-
murder conviction, and that the jury instructions on this
charge were defective. The SJC rejected appellant's
sufficiency claim but indicated that the jury had not been
correctly instructed. Commonwealth v. Ortiz, 560 N.E.2d 698,
____________ _____
701-02 (Mass. 1990). Because appellant had not made a timely
objection to the jury charge, however, the SJC did not review
the error for constitutional infirmity, but instead looked to
see whether the error created a substantial likelihood of a
miscarriage of justice. Id. at 701. The court held that it
___
did not. Id. at 702.
___
Appellant then filed a petition for a writ of
habeas corpus in the United States District Court for the
____________________
The Court: When I talk about joint
enterprise and joint possession, I am
talking about two different things. I
will give it to the jury that way.
-6-
6
District of Massachusetts. The district court ruled that the
jury instructions on felony-murder were correct and that the
evidence supporting this charge was constitutionally
sufficient. This appeal ensued.
-7-
7
II.
II.
DISCUSSION
DISCUSSION
__________
Appellant's first argument is that his right to due
process was violated because the jury was not properly
instructed on the elements of felony-murder under
Massachusetts law, and therefore did not find every element
of the offense beyond a reasonable doubt. See In re Winship,
___ _____________
397 U.S. 358 (1970). The Commonwealth steadfastly maintains
that there was no error in the jury instructions.
On the charge of felony-murder the trial court
instructed the jury as follows:
The felony-murder rule, where
applicable, is based on the theory that
the intent to commit the underlying,
independent felony is equivalent to the
malice aforethought necessary for a
murder conviction.
In order to find the Defendant
guilty of second degree murder under the
felony murder rule, the Commonwealth must
prove the following three elements beyond
a reasonable doubt.
First, that there was an unlawful
killing.
Second, that the homicide was
committed in the course of a felony or
attempted felony which felony was
independent of the homicide.
Third, that under the circumstances
of this case the Defendant committed the
felony or attempted felony with a
conscious disregard for human life.
Although the judge elaborated more fully on the second
element, he incorporated by reference his previous
definitions of the two possible predicate felonies:
-8-
8
attempted assault and battery by means of a dangerous weapon
and unlawful carrying of a firearm in a motor vehicle.3
On the unlawful carrying charge the judge
instructed the jury that the prosecution needed to prove
three elements beyond a reasonable doubt:
First, that the Defendant, Juan
Ortiz, carried a firearm on his person or
under his control in a motor vehicle.
Second, that what was carried or
that which was under the Defendant's
control met the definition of firearm
under our law ....
And third, that the Defendant knew
that he was carrying the firearm or that
he had the firearm under his control in a
vehicle.
...
Carrying occurs when the Defendant
knowingly has more than momentary
possession or control of a working
firearm and moves it from one place to
another.
...
The control exercised by the
Defendant over the area where the weapon
is found need not have been exclusive. A
Defendant may have control of a weapon
jointly with another if he is in a
position to exercise dominion or control
over the weapon and that [sic] he intends
to do so.
With regard to the element of
control, the Commonwealth must prove
beyond a reasonable doubt that Juan Ortiz
knew of the presence and the location of
the weapon in the motor vehicle, that
Juan Ortiz was in a position to be able
to exercise dominion and control over the
weapon together with an intent to
exercise such dominion and control.
____________________
3The jury was also instructed on the lesser included
offense of attempted assault by means of a dangerous weapon.
-9-
9
The judge then explained what the prosecution
needed to prove in order to convict appellant of unlawful
carrying, with specific reference to the evidence presented
at trial:
[O]ne, that the Defendant, Juan
Ortiz, was a passenger in the AMC Hornet
driven by Eduardo when they left 8
Stebbins Street and at the time they were
apprehended by the two police officers on
their return.
And, two, that the firearm was in
the AMC Hornet and that Juan Ortiz knew
that it was there.
And, three, that Juan Ortiz had
joint dominion and control of the firearm
with Eduardo and intended to exercise
dominion and control.
Under the felony-murder rule in Massachusetts, "`a
homicide committed during the commission or attempted
commission of a felony is murder.'" Commonwealth v. Pope,
____________ ____
549 N.E.2d 1120, 1123 (Mass. 1990) (quoting Commonwealth v.
____________
Silva, 447 N.E.2d 646, 652 (Mass. 1983)). The common law
_____
doctrine of felony-murder is one of constructive malice,
which allows the prosecution to substitute the mens rea
required for the underlying felony for the state of mind
required for murder. See Commonwealth v. Balliro, 209 N.E.2d
___ ____________ _______
308, 312 (Mass. 1965). It thus relieves the prosecution of
its burden of proving the essential element of malice
aforethought. Id. Nonetheless, "`[n]o person can be held
___
guilty of homicide unless the act is either actually or
constructively his, and it cannot be his act in either sense
-10-
10
unless committed by his own hand or by someone acting in
concert with him or in furtherance of a common object or
purpose.'" Balliro, 209 N.E.2d at 312 (quoting Commonwealth
_______ ____________
v. Campbell, 7 Allen 541, 544 (1863)). "`Without such
________
limitation, a person might be held responsible for acts which
were not the natural or necessary consequence of the
enterprise . . . in which he was engaged, and which he could
not either in fact or law be deemed to have contemplated or
intended.'" Commonwealth v. Burrell, 452 N.E.2d 504, 506
____________ _______
(Mass. 1983) (quoting Campbell, 7 Allen at 544).
________
This "limitation" gives rise to the joint venture
or joint enterprise requirement. Under Massachusetts law,
"one who aids, commands, counsels, or encourages commission
of a crime while sharing with the principal the mental state
required for the crime is [a joint venturer and is therefore]
guilty as a principal . . . ." Burrell, 452 N.E.2d at 505
_______
(quoting Commonwealth v. Soares, 387 N.E.2d 499, 506, cert.
____________ ______ _____
denied, 444 U.S. 881 (1979)).
______
For the purposes of this case, the joint venture
requirement operates in the following manner. When a
defendant is accused of personally killing another in the
course of committing a felony, then his intent to commit the
underlying felony may be substituted for the malice necessary
for a murder conviction. If, on the other hand, it is
unclear which one of several co-felons killed the victim,
-11-
11
then the Commonwealth must prove the existence of a joint
venture to commit the underlying felony in order to obtain a
felony-murder conviction against any of the co-felons. See
___
Burrell, 452 N.E.2d at 505-06. Similarly, where a
_______
defendant's co-felon was the actual killer, in order to
convict the defendant of felony-murder, the state is required
to prove the existence of a joint venture to commit the
underlying felony. See Ortiz, 560 N.E.2d at 700 (citing
___ _____
cases).
The Commonwealth was required to prove beyond a
reasonable doubt that appellant intentionally assisted Eddie
in the commission of the felony of unlawful carrying of a
firearm in a motor vehicle, sharing with his brother the
mental state required for that crime. See Pope, 549 N.E.2d
___ ____
at 1123. On appellant's direct appeal the SJC held:
In order to invoke the felony-murder
rule in this case, the Commonwealth was
required to prove in that regard that the
defendant intentionally encouraged or
assisted Eddie Ortiz in the commission of
a felony and that he did so while sharing
with Eddie Ortiz the mental state
required for that crime.
Ortiz, 560 N.E.2d at 700. The SJC then defined the other
_____
elements necessary to prove felony-murder.
Appellant maintains that the failure to include a
joint venture instruction in connection with the unlawful
carrying charge rendered the felony-murder instruction with
the carrying charge as the predicate felony defective because
-12-
12
it did not render him responsible for Eddie's acts. The
Commonwealth argues, consistent with its position throughout
appellant's case, that "Massachusetts state law does not
require a joint venture instruction where, as here, the
predicate felony is a possessory crime . . . ."4
Faced with the SJC's clear statement on the matter,
we have no choice but to agree with appellant. The SJC ruled
that Ortiz could not be found guilty of felony murder on
these facts unless the Commonwealth proved that Ortiz shared
with Eddie the mental state required for the predicate
felony. Id. But joint possession, the only theory presented
___
by the Commonwealth, does not require proof of concerted
action or shared state of mind, and thus, does not offer a
basis for vicarious liability for the criminal acts of
others. We find it incredible that the Commonwealth has
steadfastly refused to recognize the defects in the jury
instruction, especially in light of the SJC's careful
explanation of what the Commonwealth was required to prove.5
____________________
4In its brief to the SJC on appellant's direct appeal
the Commonwealth argued that, "joint enterprise and joint
possession may not necessarily be one and the same, but, as
these theories apply to the facts of this case, there is no
distinction." Commonwealth's Brief to the Supreme Judicial
Court at 18.
5Of course, the law of Massachusetts is what the SJC
says it is. See Cola v. Reardon, 787 F.2d 681, 688 n.5 (1st
___ ____ _______
Cir.), cert. denied, 479 U.S. 930 (1986); Tarrant v. Ponte,
_____ ______ _______ _____
751 F.2d 459, 464 (1st Cir. 1985).
-13-
13
In fact, even the SJC acknowledged that the jury was not
properly instructed. See Ortiz, 560 N.E.2d at 702.
___ _____
On direct appeal, appellant argued instructional
error. But, because he failed to timely object to the charge
as required by the Massachusetts contemporary objection rule,
see Mass. R. Crim. P. 24(b), the SJC declined to review his
___
claim on the merits and instead limited its inquiry to
whether the error gave rise to a substantial likelihood of a
miscarriage of justice. Ortiz, 560 N.E.2d at 702.
_____
Accordingly, before we can decide whether the instructional
error rises to the level of prejudicial constitutional error,
we must determine, as a preliminary matter, whether
appellant's claim is barred from federal habeas review under
the procedural default rule of Wainwright v. Sykes, 433 U.S.
__________ _____
72 (1977).
Wainwright held that the failure to timely object
__________
at trial to an alleged error as required by a state
contemporaneous objection rule constitutes an "independent
and adequate state ground" sufficient to foreclose federal
habeas corpus review of the alleged error. Id. at 84.6 In
___
____________________
6A waiver of the adequate and independent state ground
arises where the state's highest court declines to affirm on
the basis of state law and conducts a "detailed examination
of federal law and federal cases . . . necessary to decide a
specific question of federal law." McCown v. Callahan, 726
______ ________
F.2d 1, 3 (1st Cir.), cert. denied, 469 U.S. 839 (1984); see
_____ ______ ___
Doucette v. Vose, 842 F.2d 538, 540 (1st Cir. 1988) (no
________ ____
waiver unless state court makes it "reasonably clear that its
reasons for affirming a conviction rest upon its view of
-14-
14
order to escape from the preclusive effect of his procedural
default, appellant is obligated to show both "cause" for, and
"prejudice" from, his noncompliance with the Commonwealth's
contemporaneous objection rule. Id. at 86-87; Murray v.
___ ______
Carrier, 477 U.S. 478, 485 (1986). After scrutinizing the
_______
record, we can find no indication of cause for appellant's
failure to comply with Massachusetts' contemporaneous
objection rule. Even assuming cause, however, our review of
the record reveals that appellant cannot meet the high burden
of showing actual prejudice. To scale this wall, a
petitioner must demonstrate "not merely that the errors at .
. . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions."
United States v. Frady, 456 U.S. 152, 170 (1982).
_____________ _____
Absent a showing of "cause" and "prejudice," a
procedural default may still be excused where failure to hear
the claim would result in a "fundamental miscarriage of
justice." Murray, 477 U.S. at 495-96. This exception may be
______
____________________
federal law"). Since the SJC affirmed solely on the basis of
Massachusetts law, and did not reach the federal
constitutional question raised in appellant's direct appeal,
it did not waive his procedural default. See Tart v.
___ ____
Commonwealth of Mass., 949 F.2d 490, 496 (1st Cir. 1991) (SJC
_____________________
review for substantial likelihood of a miscarriage of justice
is a state law review and does not constitute a waiver of
procedural default); Puleo v. Vose, 830 F.2d 1197, 1200 (1st
_____ ____
Cir. 1987), cert. denied, 485 U.S. 990 (1988) (same); Gardner
_____ ______ _______
v. Ponte, 817 F.2d 183, 185 (1st Cir.), cert. denied, 484
_____ _____ ______
U.S. 863 (1987) (same).
-15-
15
invoked where "a constitutional violation has probably
resulted in the conviction of one who is actually innocent .
. . ." Id. at 496. In order to satisfy the actual innocence
___
requirement and enable an otherwise barred constitutional
claim to be considered on the merits, a petitioner "must show
by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have found
the petitioner [guilty]." Sawyer v. Whitley, __ U.S. __, __,
______ _______
112 S. Ct. 2514, 2517 (1992) (involving petitioner's
eligibility for the death penalty).
Given the evidence presented at trial, we believe
that a reasonable jury could have found that appellant
_____
engaged in a joint venture with his brother to unlawfully
carry a firearm in a motor vehicle. Therefore, there has
been no fundamental miscarriage of justice. Because of
appellant's state procedural default, the trial court's
charge cannot be challenged for prejudicial constitutional
error in this proceeding.
But, as appellant points out in its brief, the
Commonwealth has not argued procedural default. Nonetheless,
this court has the authority to raise the issue sua sponte.
___ ______
See Washington v. James, 996 F.2d 1442 (2d Cir. 1993) ("[w]e
___ __________ _____
believe that we may raise the procedural default issue sua
___
sponte"); Hardiman v. Reynolds, 971 F.2d 500, 502-04 & n.4
______ ________ ________
(10th Cir. 1992) (district court may raise procedural bar
-16-
16
defense sua sponte); Hull v. Freeman, 932 F.2d 159, 164 & n.4
___ ______ ____ _______
(3d Cir. 1991) ("because a state-law procedural default can
effect a bar to federal habeas review, we think that it is
appropriate for us to consider that issue sua sponte"); cf.
___ ______ ___
Mansfield v. Champion, 992 F.2d 1098, 1099 n.2 (10th Cir.
_________ ________
1993) (court not required to raise state procedural bar
defense sua sponte); Fagan v. Washington, 942 F.2d 1155, 1157
___ ______ _____ __________
(7th Cir. 1991) (by failing to catch petitioner's procedural
default, state has waived the defense).
We have been unable to find any circuit holding
that the issue cannot be raised sua sponte. In fact, the
___ ______
Second Circuit has held,
that the principles of comity and
federalism dictate that we raise the
defense [sua sponte] except in four
___ ______
circumstances: (1) where comity and
federalism are not implicated or where
they are better served by reaching the
merits; (2) where the state is itself at
fault for the procedural default; (3)
where the alleged federal violation
challenges the validity of the state
trial itself; or (4) where the alleged
federal violation was motivated by
malice.
Washington v. James, 996 F.2d at 1451. Although we do not
__________ _____
embrace Washington, we do note that appellant's case does not
__________
fall into any of the four categories.
The rule of Wainwright is grounded upon concerns of
__________
comity, and was designed in large part to protect the
integrity of state procedural rules. See Wainwright, 433 U.S.
___ __________
-17-
17
at 83; Engle v. Isaac, 456 U.S. 107, 129 (1982). Because
_____ _____
these concerns implicate "values that transcend the concerns
of the parties to an action, . . . it is not exclusively
within the parties' control to decide whether such a defense
should be raised or waived." Hardiman, 971 F.2d at 503.
________
Where, as is the case here, the state procedural default is
clear on the face of the record, it would be a needless
expenditure of scarce judicial resources were we to address
the merits of appellant's claim.
Moreover, even if we reached the merits of this
claim, we believe that the government has met its burden of
demonstrating that the error did not "`ha[ve] a substantial
and injurious effect or influence in determining the jury's
verdict.'" Brecht v. Abrahamson, __ U.S. __, __, 113 S. Ct.
______ __________
1710, 1714 (1993) (quoting Kotteakos v. United States, 328
_________ ______________
U.S. 750, 776 (1946)). It follows that we would not issue the
writ on the basis of this error.
Next, appellant argues that his writ should issue
because the SJC affirmed his conviction on a legal theory
that was not presented to the jury. More precisely,
appellant contends that, because the Commonwealth asked that
the jury be charged as to joint possession and not joint
venture principles in connection with the unlawful carrying
charge, it necessarily proceeded on the theory that Juan
___________
Ortiz personally killed the victims. According to appellant,
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18
it follows that "the jury instructions required the
government to prove beyond a reasonable doubt that Juan Ortiz
was personally responsible for the acts that killed each
victim."7 Therefore, appellant concludes that the SJC
assessed the facts of his case against a legal theory --
joint venture -- that did not reflect the theory on which he
was tried. In support of his position, appellant relies
primarily on Cole v. Arkansas, 333 U.S. 196 (1948).
____ ________
In Cole, an information charged the defendants with
____
violation of 2 of an Arkansas criminal statute. They were
subsequently tried and convicted of 2 violations. Cole,
____
333 U.S. at 198. The state supreme court affirmed
defendants' convictions on the ground that they violated 1
of the same statute, which describes an offense separate and
distinct from the offense described in 2. Id. The Supreme
___
Court found that the defendants "were clearly tried and
convicted by the jury for promoting an unlawful assemblage
made an offense by 2, and were not tried for the offense of
using force and violence as described in 1." Id. at 199.
___
The Court added that, "without completely ignoring the
judge's charge, the jury could not have convicted petitioners
for having committed the separate, distinct, and
____________________
7In effect, on this claim appellant argues that the jury
instructions were not defective, but rather, embodied a valid
theory of felony-murder which did not require proof of a
joint venture.
-19-
19
substantially different offense defined in 1." Id. at 200.
___
We have recognized, consistent with Cole, that "[a]n
____
appellate court may not lawfully sustain a conviction on a
theory entirely different from the theory upon which the jury
was charged." United States v. Gomes, 969 F.2d 1290, 1295
_____________ _____
(1st Cir. 1992); see United States v. Anguilo, 897 F.2d 1169,
___ _____________ _______
1197 (1st Cir.), cert. denied, 498 U.S. 845 (1990).
_____ ______
An appellate court may not go outside of the
prosecution's trial theory to affirm a conviction because a
criminal defendant must have notice of the charges against
him and an opportunity to be heard in a trial on the issues
raised by those charges. Cole, 333 U.S. at 201. Further, a
____
criminal defendant also has the right to trial by jury as
opposed to trial by an appellate tribunal. See, e.g., Dunn
___ ____ ____
v. United States, 442 U.S. 100 (1979) (appeals court affirmed
_____________
conviction based upon specific acts, the alleged criminality
of which the defendant was never afforded notice); Cola v.
____
Reardon, 787 F.2d 681 (1st Cir.) (same), cert. denied, 479
_______ _____ ______
U.S. 930 (1986).
According to appellant, Cole is controlling here.
____
We disagree. In general, the concerns expressed in Cole are
____
implicated where an appellate court in effect "charges" a
defendant with a new crime, and then concludes that the
evidence was sufficient to support a conviction for that
previously uncharged offense. Thus, if the prosecution
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20
decides to submit a case to the jury on one of two equally
valid legal theories, and the jury convicts despite
insufficient evidence, on appeal the court cannot resurrect
the conviction by ruling that there was sufficient evidence
to convict on the alternative theory. See Saylor v.
___ ______
Cornelius, 845 F.2d 1401, 1403-04 (6th Cir. 1988); United
_________ ______
States v. Hill, 835 F.2d 759, 764 (10th Cir. 1987). This is
______ ____
not what happened here.
In the first place, contrary to appellant's
contention, the jury instructions did not require the
___
Commonwealth to prove that appellant shot the officers in
order to convict him of felony-murder. Rather, the jury was
instructed that, although the Commonwealth did not claim that
___
appellant killed the officers, it could still convict him of
felony-murder if, inter alia, he committed the felony of
_____ ____
unlawful carrying while jointly possessing the gun with his
brother.8
Furthermore, after scanning the record, we are
unable to see how the concerns expressed in Cole are
____
implicated in this case. From the outset of this action the
Commonwealth and the defense proceeded on the shared
____________________
8In fact, appellant has acknowledged that "the
government's `joint possession' theory as a felony-murder
theory of joint accountability is a fiction in terms of
Massachusetts law." This comports with the view that the
jury instructions did not require the jurors to determine
whether appellant personally shot the victims, but rather,
were defective under state law.
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21
understanding that Eddie killed the officers, and that Juan
could be convicted of felony-murder only on the basis of
Eddie's actions. This is consistent with the bill of
particulars, this was how the case was presented at trial,
and this is how the jury was instructed. The record clearly
demonstrates that the Commonwealth sought to prove that
appellant did not want to restrain his brother, but rather,
shared his evil intentions, and appellant sought to prove
just the opposite. Appellant knew the specific acts that the
Commonwealth endeavored to prove at trial, he knew precisely
with what crime he was charged, and he knew the basis upon
which the alleged acts constituted the crime charged.
Moreover, appellant is unable to point to any prejudice
resulting from the SJC's alleged due process violation, such
as the inability to prepare a proper defense. And, as we
have already held, any constitutional prejudice that might
have been engendered by the variance between the jury
instructions and Massachusetts law cannot be reviewed in this
proceeding.
This is an instructional error case. This court
has recognized that
[i]n the traditional contemporaneous
objection situation, the error inheres in
the judge's charge; thus, it is
reasonable to require objection at the
time of the error. In the Dunn
____
situation, however, the error inheres in
the appellate court affirmance; thus, the
-22-
22
error has not yet occurred at the time of
the judge's charge.
Cola, 787 F.2d at 694. In the present case, the error
____
complained of "inheres in the judge's charge," and not "in
the appellate court affirmance." The SJC did not violate
appellant's due process rights by recognizing that the jury
was improperly instructed on felony-murder, and then ruling
that the evidence adduced at trial was sufficient to warrant
a conviction under Massachusetts law. That the Commonwealth
misunderstood the legal principles underlying its "theory" of
guilt, and therefore asked for and received, with no
objection, a legally deficient jury instruction, does not
place this case under the shadow cast by Cole. In effect,
____
appellant asks us to review his claim of instructional error
through the back door. We decline to do so.
Appellant's final argument is little more than a
repetition of his previous argument. According to appellant,
because the jury instructions necessarily required proof of
the fact that he personally killed the officers, this court
should look to whether the evidence was sufficient to support
a conviction under that theory. Because there was no
evidence to that effect, appellant argues that the SJC should
have found, and we must find, that there was insufficient
evidence to support his felony-murder conviction.
For the reasons that we have already explained, the
Commonwealth did not proceed upon the theory that appellant
-23-
23
personally killed the officer, and the jury instructions did
not require proof of that fact. Therefore, neither this
court nor the SJC is required to review the sufficiency of
the evidence against that theory. When a petitioner in a
habeas action challenges the sufficiency of the evidence, the
court's task is to determine whether "after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v.
_______
Virginia, 443 U.S. 307, 324 (1979). This standard must be
________
applied "with specific reference to the elements of the
offense as defined by state law." Campbell v. Fair, 838 F.2d
________ ____
1, 4 (1st Cir.), cert. denied, 488 U.S. 847 (1988). The SJC
_____ ______
did just this, and concluded that the evidence was sufficient
to uphold appellant's conviction. Appellant does not contest
the accuracy of that ruling.
Because one of appellant's claims is procedurally
defaulted, and the other two lack merit, his petition for a
writ of habeas corpus is denied.
Affirmed.
Affirmed.
________
Dissent follows.
Dissent follows.
-24-
24
STAHL, Circuit Judge, dissenting. Although I
_____________
agree with the majority that a procedural default could have
been argued in this case, and although I can see the logic
behind raising such a default sua sponte in many
___ ______
circumstances, I find myself persuaded by Judge Oakes's view
that "the strength of petitioner's case" also should be
considered by courts deciding whether or not to raise the
default sua sponte. See Washington, 996 F.2d at 1454 (Oakes,
___ ______ ___ __________
J., dissenting). And, because, in my view, a non-harmless
error undermining the structural guarantee that the jury will
make the requisite elemental determinations clearly was
_______
committed here, I would reach the merits of petitioner's
claim and grant the writ.
In my dissenting opinion in Libby v. Duval,
_____ _____
No. 93-1588, slip op. at ___ (1st Cir. Mar. __, 1994) (Stahl,
J., dissenting), I explain in detail why I believe that the
whole-record harmless-error review prescribed by Brecht v.
______
Abrahamson, 113 S. Ct. 1710, 1722 (1993) cannot and should
__________
not be utilized by courts reviewing instructional errors
which have the effect of precluding juries from making the
requisite factual findings in criminal trials.9 Instead, as
I argue in Libby, habeas courts reviewing such errors for
_____
____________________
9. I therefore regard as misleading the majority's citation
to Brecht while indicating in dictum that it would not grant
______
the writ even were it to reach the merits of petitioner's
claim. See ante at 17.
___ ____
-24-
24
harmlessness should employ the test set forth in Justice
Scalia's concurring opinion in Carella v. California, 491
_______ __________
U.S. 263 (1989). Because the error here -- failure to charge
the jury that it must find a joint venture to unlawfully
carry a firearm in a motor vehicle in order to use the
unlawful carrying charge as a predicate offense for felony
murder -- had exactly such an effect, see id. at 268-71
___ ___
(explaining how instructions misdescribing (or failing to
describe) elements of crimes and instructions setting up
mandatory presumptions on elements of crimes tend to preclude
juries from making requisite elemental determinations)
(Scalia, J., concurring), I would review the error here
according to the dictates of the Carella concurrence. That
_______
is to say, I would ask (1) whether the omitted charge was
relevant only to an element of a crime of which petitioner
was acquitted; (2) whether the omitted charge was relevant
only to an element which petitioner admitted; or (3) whether
no rational jury could have found what it actually did find
________ ___ ____
and not also find the charged element. See id. at 271.
___ ___
Because prongs one and two of the Carella test clearly do not
_______
apply, I will focus on prong three in conducting my analysis.
While it is clear that the jury did find both
a joint venture to commit the crime of attempted assault and
battery with a dangerous weapon and that petitioner was
unlawfully carrying a firearm in a motor vehicle (under an
-25-
25
instruction that required it to find intent to exercise
dominion and control over the firearm), it seems to me that a
rational jury, having made these findings, would not
___
necessarily also have found that there was a joint venture to
___________
commit the crime of unlawfully carrying a firearm in a motor
vehicle. With regard to the impact of the finding that there
was a joint venture to commit attempted assault and battery,
the record reveals that petitioner and his brother had
abandoned the attempted assault and battery prior to the
_____ __
killings. Thus, the intent underlying that charged crime
must necessarily have vanished prior to the murders. (The
jury's special verdict form, which indicates that the
attempted assault and battery felony was not a predicate
___
offense for purposes of the felony murder conviction, implies
as much.). This means, of course, that even if the two
intents were somehow viewed as "functional equivalent[s],"
see id., in nature (and I do not think that they can be so
___ ___
viewed), the shared intent underlying the joint venture to
commit the attempted assault and battery finding cannot be
______
the very same as the shared intent which would underlie any
(unmade) finding that there was a joint venture to unlawfully
carry a firearm.
The fact that, in finding the petitioner
guilty of unlawfully carrying the firearm, the jury found
that petitioner "had joint dominion and control of the
-26-
26
firearm with Eduardo and intended to exercise dominion and
control" presents, for me, a closer question. As the
majority opinion notes (and as the SJC observed on direct
appeal), the missing joint venture finding encompasses a
determination that petitioner "`intentionally encouraged or
assisted Eddie Ortiz in the commission of a felony and that
he did so while sharing with Eddie Ortiz the mental state
required for that crime.'" Ante at 11 (quoting Ortiz, 560
____ _____
N.E.2d at 700.) In my view, the jury's "joint dominion and
control" finding is the functional equivalent of "the shared
__
mental state" necessary for a joint venture finding. It is
not, however, the functional equivalent of a finding that
petitioner "intentionally encouraged or assisted" Eddie in
__________ ________
the commission of the unlawful carrying of the weapon. Thus,
the record is devoid of factual findings which are "so
closely related to the ultimate fact [to be found] that no
rational jury could find those facts without also finding
the[e] ultimate fact.'" Id. Accordingly, the error here was
___
not harmless. See id.; see also Libby, slip op. at __-__
___ ___ ___ ____ _____
(Stahl, J., dissenting).
I therefore would grant the writ.
-27-
27
Related
Cole v. Arkansas
333 U.S. 196 (Supreme Court, 1948)
In Re WINSHIP
397 U.S. 358 (Supreme Court, 1970)
Dunn v. United States
442 U.S. 100 (Supreme Court, 1979)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Engle v. Isaac
456 U.S. 107 (Supreme Court, 1982)
United States v. Frady
456 U.S. 152 (Supreme Court, 1982)
Murray v. Carrier
477 U.S. 478 (Supreme Court, 1986)
Sawyer v. Whitley
505 U.S. 333 (Supreme Court, 1992)
Brecht v. Abrahamson
507 U.S. 619 (Supreme Court, 1993)
John Tarrant v. Joseph Ponte
751 F.2d 459 (First Circuit, 1985)
Neil R. Cola v. Charles H. Reardon, Sheriff of Essex County
787 F.2d 681 (First Circuit, 1986)
James Gardner v. Joseph Ponte
817 F.2d 183 (First Circuit, 1987)
Joseph A. Puleio v. George A. Vose, Jr., Etc.
830 F.2d 1197 (First Circuit, 1987)
United States v. Curtis Jordan Hill
835 F.2d 759 (Tenth Circuit, 1987)
William H. Doucette, Jr. v. George Vose
842 F.2d 538 (First Circuit, 1988)
Lloyd Virgil Saylor v. Clarence Cornelius, Judge, Harlan County Circuit Court the Commonwealth of Kentucky and the Attorney General of Kentucky
845 F.2d 1401 (Sixth Circuit, 1988)
United States v. Gennaro J. Angiulo, Donato F. Angiulo, Samuel S. Granito, Francesco J. Angiulo and Michele A. Angiulo
897 F.2d 1169 (First Circuit, 1990)
Larry Gene Hull v. Robert M. Freeman Ernest D. Preate, Jr., Attorney General
932 F.2d 159 (Third Circuit, 1991)
Harrison Fagan v. Odie Washington, Warden, and Roland W. Burris, Attorney General of the State of Illinois
942 F.2d 1155 (Seventh Circuit, 1991)
Wesley P. Tart v. Commonwealth of Massachusetts
949 F.2d 490 (First Circuit, 1991)
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Ortiz v. Dubois, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-dubois-ca1-1994.