Marshall v. Commonwealth, 463 Mass. 529

Marshall convicted in 2006 as an accessory before the fact to murder; Rodriguez reversed in 2010 for lack of pre-felony incitement; Commonwealth indicted Marshall for murder under a different theory; first judge denied a motion to dismiss the murder indictment; single justice reserved and reported two questions on double jeopardy; Rodriguez established that §2 and §3 form a unified accomplice liability framework; Rodriguez emphasized variance between indictment wording and trial proof; the Court remands for further proceedings consistent with its opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does double jeopardy bar a second murder prosecution after an accessory-before-the-fact conviction was reversed?	Commonwealth argues separate liability routes exist; retrial under proper indictment is permissible.	Marshall argues murder is a lesser included offense of accessory before the fact; retrial barred.	No; retrial permitted under proper charging instrument.
Are the second questions about double jeopardy due to erroneous jury instructions and evidence resolved against Marshall?	Commonwealth contends no double jeopardy bar despite errors because indictment proof supports murder liability.	Marshall contends errors require bar on prosecution.	No; errors do not bar prosecution; remand allowed.

Commonwealth v. Rodriguez, 457 Mass. 461 (Mass. 2010) (reversed conviction for accessory before the fact; discussed variance and proper framing under §§ 2 and 3)
Commonwealth v. Ortiz, 424 Mass. 853 (Mass. 1997) (accomplice liability framework under §§ 2 and 3)
Commonwealth v. Zanetti, 454 Mass. 449 (Mass. 2009) (rejected strict division between joint venture and aiding/abetting; endorse broader accomplice liability)
Commonwealth v. Ohanian, 373 Mass. 839 (Mass. 1977) (variance and charging issues under double jeopardy; applicable to cumulative liability)
Commonwealth v. Fickett, 403 Mass. 194 (Mass. 1988) (exception to double jeopardy where alternative theories could support conviction on retrial)
Commonwealth v. D’Amour, 428 Mass. 725 (Mass. 1999) (lesser-included-like considerations; context for double jeopardy analysis)