Ortiz v. Dubois

Rather, grandfather easily discounted. it to me under a be seems actions allowed entirely colloquy Cong.Rec. consistent with the with the S12651. clause. 134 Island senators. Rhode responsible and calculated floor Were such If, therefore, legislation managers assign proper weight to be we exchanges with account, history, legislative or no the character I think it unavoidable of little rendered process a sub- that we would to conclude that legislating would suffer have constriction, opportuni- Gaming implied repeal had no and valued Act effected stantial correction, clarification, If, course, ty minor fine the Settlement Act. the Con- injustice gress I do not think the were to feel that an had been tuning would be lost. party any appellees, provide remedy such it judiciary be a re- done could should through supplemental legislation.24 sult. therefore, reluctance, Certainly legisla- great the instant I dissent. history supports the conclusion that the tive thought implied

Rhode Island Senators unnecessary language because

repeal jurisdictional provi- that the

did not believe Gaming applied Act to the

sions of the Settle- That this accorded with the intent

ment Act. clear, equally seems unless we

of the Senate this traditional kind of collo- proclaim

are to leadership and mir- quy with mere smoke ORTIZ, Petitioner, Appellant, R. Juan rors. noting also worth that the collo- I think it Larry DUBOIS, Respondent, Appellee. sponsor quy includes a statement bill’s usually manager, whose remarks and floor No. 93-1656. weight. substantial See North are afforded Appeals, United States Court of Bell, Bd. Educ. v.

Haven First Circuit. 1912, 1920-21, 526-27, L.Ed.2d (1982); United States Mass. Maritime Heard Nov. 1993. (1st Cir.1985). Academy, Decided March 1994. although colloquy, I clear and add only point, is evidence of to the

Congressional report intent. The Senate “nothing [Gaming

also mentions that any specific supersede restriction or

Act] will authority juris-

specific grant of Federal encompassed

diction to a State which statute, including Federal another Act [and

Rhode Island Claims Settlement Claims Settlement Act.”

Maine] Indian Cong.2d 100th

S.Rep. No. Sess.

(1988), reprinted in 1988 U.S.C.C.A.N. (citations omitted). While the court report, issued before the

concludes that Pell, proposed Senator is of no

deletion relevance,

present I do not think it can so 1609(c), legislative preempted conflicting similarly § has looked to U.S.C. Massa- Our circuit 13(c) history help § a conflict between a feder- chusetts statute. The text of did not resolve question. Div. answer this Our close examination of al and a state statute. In Local Massachusetts, (1st however, Cir.1981), legislative history, persuaded we us 666 F.2d 618 13(c) Congress § were did not intend for this statute to asked to determine whether preempt conflicting Transportation Massachusetts law. Urban Mass Act of Linda Thompson, with whom J.

John M. MA, brief, for Thompson, Springfield, was on appellant. Gen., Geary, Atty. pants pocket.

Nancy Asst. There was evidence to the W. Gen., Boston, appellant agreed accompany Harshbarger, Atty. effect that whom Scott . provide up.” Eddie order to “back On the MA, appellee. was on brief hand, appellant other introduced evidence BOWNES, CYR, Judge, Circuit vehemently opposed Before that he his brother’s STAHL, Judge, mission, and Circuit along Senior Circuit and went order to serve as Judge. a voice of reason. appel- With Eddie behind the wheel and "

BOWNES, Judge. Senior Circuit side, lant at his the two drove off in search of appeal route, This is an from the denial of a prey. pulled their En Eddie over to challeng- curb, petition filed Juan Ortiz gun habeas removed and ammunition ing gun, placed his Massachusetts convic- pocket, from his loaded the and it Appellant argues right tion. that his to due between himself and his brother. After cir- cling process of law under the Fourteenth Amend- the intended victim’s block several (1) times, jury ment was violated because: was the brothers were unable to locate him, apart- and returned to not instructed to find all of the essential their father’s felony-murder beyond Upon ment. their arrival in front of 8 of a reason- Steb- elements (2) Street, police doubt; bins a cruiser manned Supreme two able the Massachusetts (SJC) up pulled officers behind them. The driver felony-mur- his Judicial Court affirmed .got approached of the cruiser out and theory applying legal der conviction a ' driver’s side of the Ortiz vehicle. As the jury; presented to the and there was attempted open officer the driver’s side support felony- insufficient evidence to door, he was shot in the face and killed murder conviction under the Common- By that Eddie. time the second officer was theory guilt. wealth’s The district trying pull appellant passenger out of the affirm, petition. denied the We but for rea- door. him side Eddie shot and killed as well. substantially sons different than those ex- pressed by the court below. that, There was evidence as the officers vehicle,

approached appellant both gun, his brother for reached but Eddie I. got shooting, to it first. After the both fled BACKGROUND Appellant apprehended the scene. was shortly thereafter. Eddie per- We with a committed suicide commence recitation of the custody. before he could be into Appellant’s tinent taken facts. convictions are based on the events November 1985. On November 1985 a five count indict- brother, evening, appellant That and his against appellant. ment was He returned “Crazy Eduardo Eddie” left their fa- charged with two counts of second de- apartment ther’s at 8 Stebbins Street murder, gree one for the death of each offi- Springfield, Massachusetts to search for Jose cer, unlawful of a firearm under his Rodriguez. Apparently ongo- there was an vehicle, attempted control in a motor ing dispute between Eddie and various mem- battery dangerous weap- assault and with a addition, Rodriguez family. bers of on, all felonies.1 The in- there was evidence several members of appellant respect formed with to the family, Jose, one who was believed to be indictment, proceeding murder it would be paid apartment a visit to the Stebbins Street felony-murder. designated on a It day question on the looking for Eddie. predicates the latter two felonies as for the One of allegedly gun. the visitors carried a felony-murder charge. departing appellant, Prior to Appellant’s January Eddie trial commenced procured Magnum a .357 and ammunition 1987. At the close of the Commonwealth’s brother-in-law, placed again from his which he case and at the close of all the evidence count, Appellant charged pos- 1. by agreement was also with unlawful with the Common- ammunition, session of a misdemeanor. Al- wealth he was never sentenced on it. though appellant ultimately convicted on

7H findings timely objection unsuccessfully jury not made a to the appellant moved however, charge, guilty on all counts. The found the SJC did not review the of not attempted infirmity, error for but guilty on all counts. On constitutional instead appellant battery by dangerous means of looked to see whether the error created a assault being jus- weapon, miscarriage convicted substantial likelihood of With “joint with his brother. venturer” tice. Id. at 701. The court held that it did carrying charge, the regard to the unlawful not. Id. appellant “jointly possessed” found that Appellant petition then filed for a writ of verdict, By special gun with his brother. corpus in habeas the United States District carrying charge found the unlawful Court for the District of Massachusetts. The predicate felony underlying the to be the sole district court ruled that the felony-murder convictions. felony-murder on were and correct that the Subsequent to the close of the evidence but supporting charge evidence was constitu- jury, judge the instructed the the before tionally appeal sufficient. This ensued. informed the court carrying with the unlawful

connection II. joint charge, proceeding it would not be on a theory, but rather on a basis that venture DISCUSSION “jointly gun appellant possessed” the with his Appellant’s argument right first is that his result, judge As a did not in- brother. process jury to due was violated because the jury joint principles on venture struct the properly was not instructed on the elements carrying charge.2 unlawful to the law, felony-murder under Massachusetts verdict, appel- jury rendered its After the every and therefore did not find element of findings lant his motion for of not renewed beyond the offense a reasonable doubt. See guilty. motion denied in its entire- The Winship, In re appealed. ini- ty, appellant and On its own (1970). 25 L.Ed.2d 368 The Commonwealth tiative, from the the SJC removed the case steadfastly maintains that there was no error Appeals The affirmed the con- Court. SJC in the instructions. felony-murder unlawfully for and victions charge felony-murder On the the trial Finding carrying a firearm in a vehicle. no instructed as follows: act, however, it the conviction overt reversed rule, felony-murder applica- The where battery by attempted for assault and means ble, is based on the that the intent dangerous weapon. of a underlying, independent commit the fel- alleged, appeal, appellant direct inter On ony equivalent is to the malice afore- alia, that the evidence was insufficient thought necessary for a murder conviction. conviction, support his and guilty In order to find the Defendant charge instructions on this were felony degree second murder under the rejected appellant’s defective. The SJC suf- rule, murder the Commonwealth must ficiency but had claim indicated beyond prove following three elements correctly not been instructed. Common- a reasonable doubt. Ortiz, 408 Mass. 560 N.E.2d wealth First, killing. appellant 701-02 Because had that there was an unlawful pre-charge Right, joint carrying, after the close of Commonwealth: 2. At a conference just prior charge, sense, car, the evidence and following to the stopped they in that when place: discussion took only gun. there's one He took out the car- Court: As I the Common- The understand essence, tridges gun. and loaded the at that joint theory applies wealth’s venture stage, saying are them were we that both of attempted A & B. to the carrying gun. Commonwealth: Yes. joint The Court: When I talk about enter- The Court: You that? understand joint talking prise possession, I am about Defendant: I understand that. things. give different I will it to the two apply carrying Court: It to the The doesn’t way. gun your other than its contention there joint possession gun. position exercise

Second, commit- was in a to be able to the homicide was weapon to- dominion and control over the felony attempted or of a ted in the course gether with an intent to exercise such felony independent of felony do7 minion and control. homicide.

Third, judge explained prose- the circumstances of that under The then what the prove committed the fel- in order to convict the Defendant cution needed this case carrying, specific of unlawful with ony attempted conscious presented at trial: reference to the evidence disregard human life. [O]ne, Defendant, Juan fully judge more on Although the elaborated passenger in was a the AMC Hornet driv element, incorporated by ref- he the second they en Eduardo when left 8 Stebbins of the two previous definitions erence appre and at the time were Street attempted predicate felonies: as- possible police on their hended the two officers dangerous battery by means sault return. carrying of a firearm in weapon and unlawful And, two, that the firearm was a motor vehicle.3 Hornet and that Juan Ortiz knew AMC charge judge the unlawful On that it was there. prosecution jury that instructed the And, three, that Juan Ortiz had beyond elements prove three needed dominion and control of the firearm with doubt: reasonable domin- Eduardo and intended to exercise Defendant, First, Juan ion and control. person or a on his under carried firearm felony-murder in Under the rule vehicle. his control a motor “ Massachusetts, ‘a homicide committed dur Second, was carried or that that what ing attempted the commission or commission Defendant’s control which was under the ” felony of a is murder.’ Commonwealth v. of firearm under our met the definition 581, 1120, Pope, 406 Mass. 549 N.E.2d 1128 law_ Silva, (quoting v. Commonwealth third, Defendant knew that And that the 495, (1983)). 646, 652 Mass. 447 N.E.2d The firearm or that he had he was felony-murder is common law doctrine of one his control a vehicle. the firearm under malice, pros of constructive which allows required ecution to the mens rea substitute felony underlying for the for the state of Carrying occurs when the Defendant required mind for murder. See Common momentary pos- knowingly has more than Balliro, wealth 349 Mass. 209 N.E.2d working firearm and session or control of a prosecu It thus relieves place to another. moves it from one proving tion of its burden of the essential aforethought. element of malice Id. None by the Defendant The control exercised theless, guilty person can be held ‘“[n]o weapon is found over the area where actually homicide unless the act is either or A need Defen- not have been exclusive. constructively his, and it cannot his act in be weapon jointly dant have control either sense unless his own committed position if in a to exer- with another he is acting hand or someone in concert with weapon control over the cise dominion or object him or in furtherance a common or ” intends to do so. [sic] he Balliro, purpose.’ (quot 209 N.E.2d at 312 control, ing Campbell, regard to the element of Commonwealth v. 7 Allen With (1863)). limitation, prove beyond a such a the Commonwealth must ‘“Without person might responsible held for acts reasonable doubt that Juan Ortiz knew necessary presence weap- which were' not the natural or and the location vehicle, enterprise consequence on in ... the motor Juan Ortiz dangerous weapon. 3. The on the lesser in- was also instructed attempted cluded offense of assault means of felony-murder In order to invoke the he could engaged, and which he was ease, deemed to have in this in fact or law be rule the Commonwealth was either ” contemplated or intended.’ Commonwealth required prove regard in that (Mass.1983) Burrell, N.E.2d intentionally encouraged or defendant as- 544). Campbell, 7 Allen at (quoting sisted Eddie Ortiz the commission of a felony sharing he did so while joint gives rise to the “limitation” This required with Eddie Ortiz the mental state joint requirement. enterprise or venture for that crime. aids, law, “one who Under Massachusetts counsels, commands, encourages commis Ortiz, 560 N.E.2d 700. The SJC then sharing princi with the sion of a crime while necessary defined the other elements crime is pal the mental state for the felony-murder. prove guilty joint and is as a [a therefore] venturer Appellant maintains that the failure Burrell, principal_” 452 N.E.2d at 505 joint to include a venture instruction in con Soares, (quoting Mass. carrying charge nection with the unlawful 387 N.E.2d instruction rendered 170, 62 L.Ed.2d 110 carrying charge predicate felony as the (1979)). defective because it did not render him re case, purposes of this For the sponsible for Eddie’s acts. The Common joint requirement operates in the venture argues, position wealth consistent with its following is ac manner. When defendant throughout appellant’s that “Massachu personally killing another cused of require setts state law does not ven committing felony, course of then his intent where, here, predicate ture instruction underlying felony may be sub to commit the ,”4 possessory is a crime... necessary for the malice for a mur stituted Faced with the clear statement on SJC’s If, hand, it der conviction. on the other matter, agree the we have no choice but to of several co-felons killed unclear one appellant. The SJC ruled that Ortiz victim, then the Commonwealth must felony guilty could be found of murder on not a.joint prove the existence of venture to proved these facts unless the Commonwealth underlying felony in order to commit the the mental that Ortiz shared with Eddie against obtain a conviction felony. required predicate for the Id. state Burrell, any of co-felons. See joint possession, only theory present- But Similarly, where a defen N.E.2d at 505-06. Commonwealth, require ed does not killer, was actual in order dant’s co-felon proof of of concerted action shared state felony-murder, of to convict the defendant mind, thus, and not offer a basis for does required prove the the state is to existence liability for the criminal acts of vicarious joint underlying a venture to commit the find it incredible that the Com- others. We Ortiz, felony. (citing See 560 N.E.2d at 700 steadfastly recog- refused to monwealth has cases). instruction, espe- nize the defects in the prove required The Commonwealth was to explanation cially light careful SJC’s beyond a reasonable doubt required of what the Commonwealth intentionally assisted Eddie the commis- fact, prove.5 acknowledged even the SJC sion unlawful properly instructed. vehicle, sharing firearm in a motor with his Ortiz, 560 N.E.2d at 702. See required brother the mental state for that argued Pope, appeal, appellant direct instruc- crime. See 549 N.E.2d at 1123. On On But, timely appellant’s appeal direct held: tional error. because he failed to SJC course, appellant's 4. In its brief to the SJC on direct 5. Of the law of Massachusetts is what Reardon, appeal argued "joint says it is. See Cola v. 787 F.2d SJC enterprise joint possession may 681, 930, not necessar- (1st Cir.), 688 n. 5 479 U.S. same, but, ily one and the as theories these (1986); 107 S.Ct. 93 L.Ed.2d 351 Tarrant v. apply to the facts of this there is no distinc- Ponte, (1st Cir.1985). Supreme to the tion.” Commonwealth's Brief Judicial Court at 18. 152, 170, charge required by Frady, object the Mas- 456 U.S. 102 S.Ct. rule, objection (1982). contemporary see sachusetts 71 L.Ed.2d 816 24(b), the SJC declined to Mass.R.Crim.P. showing a “preju Absent of “cause” and on the merits and instead review his claim dice,” procedural a default still be ex gave inquiry its to whether the error limited cused where failure to hear the claim would likelihood of a miscar- rise to substantial miscarriage jus result a “fundamental justice. riage of 560 N.E.2d at 702. 495-96, 106 Murray, tice.” 477 U.S. at S.Ct. Accordingly, we can decide before whether exception may at 2649-50. This be invoked the instructional error rises to the level of probably where “a constitutional violation has error, prejudicial constitutional we must de- resulted the conviction of who is actu one matter, termine, preliminary as a whether ally innocent....” Id. at 106 S.Ct. at appellant’s claim is barred from federal habe- satisfy In order to the actual inno procedural as review under the default rule requirement cence and enable an otherwise Wainwright Sykes, 97 S.Ct. barred constitutional claim to be considered (1977). 2497, 53 L.Ed.2d 594 merits, petitioner on the “must show Wainwright timely held the failure to convincing clear and evidence that but for a object alleged at trial to an error as error, juror constitutional no reasonable objection contemporaneous rule state petitioner [guilty].” found would have “independent adequate an constitutes — Sawyer Whitley, U.S. -, -, ground” state sufficient to foreclose federal 2514, 2517, (1992) (in S.Ct. 120 L.Ed.2d 269 alleged corpus habeas review of the error. volving petitioner’s eligibility for the death Id. at at 2505.6 In order penalty). escape preclusive pro- from the effect of his default, appellant trial, obligated presented cedural Given evidence we for, from, “prejudice” show both “cause” believe that a reasonable could have noncompliance with the appellant engaged Commonwealth’s found that in a ven- objection contemporaneous rule. Id. at 86- unlawfully carry ture with his brother to 2506; Carrier, Murray v. 97 S.Ct. at Therefore, firearm a motor vehicle. there 478, 485, 2639, 2644, miscarriage jus- has been no fundamental scrutinizing After appellant’s procedural tice. Because of state record, can find no indication of cause for we default, charge the trial court’s cannot be appellant’s comply failure to with Massachu- challenged prejudicial constitutional error objection contemporaneous setts’ rule. Even proceeding. in this cause, however, assuming our of review the But, appellant points out its record cannot reveals meet the brief, argued high showing prejudice. Commonwealth has not burden of actual To Nonetheless, procedural wall, petitioner default. this scale this must court demonstrate merely authority has the to “not that the errors at ... trial raise the issue sua creat- James, prejudice, sponte. Washington possibility they ed a of but that See v. 996 F.2d (2d Cir.1993) (“[w]e 1442 may worked to his actual and substantial disad- believe that we infecting vantage, procedural his entire trial with error raise the default issue sua sponte”); of constitutional dimensions.” Reynolds, United States Hardiman v. 971 F.2d law, adequate independent 6. A waiver of the state Massachusetts and did not reach federal ground highest question appellant's arises where the state's court constitutional raised in di appeal, procedural declines to affirm on the basis of state law and rect it did not waive his de Mass., a "detailed conducts examination of federal law fault. See Tart v. Commonwealth 949 490, (1st 1991) (SJC necessary spe and federal cases ... to decide a 496 F.2d Cir. review for question cific han, miscarriage justice of federal law.” McCownv. Calla substantial likelihood of a 1, (1st Cir.), denied, 726 F.2d 3 cert. 469 is a state law review and does not constitute a 839, 139, (1984); Vose, default); procedural U.S. 105 S.Ct. 83 L.Ed.2d 78 waiver of Puleo v. 830 Cir.1987), Vose, 538, (1st 1197, (1st denied, see Doucette v. 842 F.2d 540 1200 F.2d rt. 485 ce (no 1988) 990, 1297, (1988) Cir. waiver unless state court makes it U.S. (same); 108 S.Ct. 99 L.Ed.2d 506 Ponte, 183, (1st "reasonably affirming clear that its reasons for Gardner v. 817 F.2d 185 law"). Cir.), upon conviction rest its view of federal 484 U.S. 108 S.Ct. (1987) (same). solely Since the SJC affirmed on the basis of L.Ed.2d 134 (10th Cir.1992) (district Moreover, n. 4 even if we 502-04 & reached the merits of claim, procedural government we believe that raise bar defense sua Freeman, demonstrating has met its burden of that the sponte); Hull v. 932 F.2d “ (3d Cir.1991) (“because injuri error did not ‘have substantial and n. 4 a state-law & determining ous effect or influence in procedural default can effect a bar to federal ” — Abrahamson, jury’s review, verdict.’ Brecht v. appropriate we think that it is habeas -, -, - 1710, 1714, 113 S.Ct. sponte”); for us to consider that issue sua cf. (1993) (quoting Kotteakos v. Champion, 992 F.2d Mansfield States, 750, 776, (10th Cir.1993) (court United 328 U.S. 66 S.Ct. required n. 2 not to 1239, 1253, (1946)). 90 L.Ed. 1557 It follows procedural state bar defense sua raise that we would not writ issue the on the basis sponte); Fagan Washington, of this error. (7th Cir.1991) (by failing to catch default, petitioner’s procedural has state Next, appellant argues that his writ defense). waived the should issue because the SJC affirmed his legal theory conviction on a that was not any have been unable to find circuit We presented jury. precisely, ap More holding that the issue cannot be raised sua pellant contends because the Common fact, held, sponte. In has Second Circuit charged wealth asked that the as to principles comity and federal- joint possession princi and not venture ism dictate that we raise the defense [sua ples in connection with the unlawful (1) sponte] except in four circumstances: charge, necessarily proceeded it on the theo comity impli- where and federalism are ry personally that Juan Ortiz killed the vic cated or where are better served According appellant, tims. it follows that (2) merits; reaching the where the state is govern “the default; procedural itself at fault for the prove beyond ment a reasonable doubt (3) alleged where federal violation chal- personally responsible that Juan Ortiz was itself; lenges validity of the state trial for the acts that killed each victim.”7 There alleged where the federal violation fore, appellant concludes that as SJC- was motivated malice. against legal sessed facts of his case James, Washington v. 996 F.2d at 1451. Al- theory joint venture —that did not reflect — though Washington, we do not embrace we sup In on which he was tried. appellant’s do note that not fall does case port position, appellant primarily of his relies any categories. into of the four Arkansas, on Cole v. 333 U.S. 514, 92 L.Ed. 644 Wainwright grounded upon The rule Cole, comity, designed charged concerns and was an information the defen- large part protect integrity § of state dants with violation of 2 of an Arkansas procedural Wainwright, They subsequently rules. See criminal statute. were 2504; Isaac, Cole, Engle § at 456 tried and convicted of violations. 107, 129, 1558, 1572, 198, U.S. 102 S.Ct. 71 333 U.S. at 68 S.Ct. at 515. The state (1982). L.Ed.2d 783 supreme Because these concerns court affirmed defendants’ convic- implicate ground § that “values transcend the concerns tions on the that violated 1 of action, statute, parties to an ... it is not the same which describes an offense exclusively parties’ separate within the control to de- and distinct from the offense de- § Supreme cide whether such a defense should be 2. raised scribed Id. The Court Hardiman, clearly or waived.” 971 F.2d at 503. found that the “were tried defendants Where, here, proce- jury as is the promoting ease the state and convicted the for an 2, assemblage by § dural default is clear on the face of the unlawful made an offense record, expenditure using it would be a needless of for of were not tried the offense judicial § scarce resources were we to address force and violence as described in 1.” Id. 199, appellant’s the merits of claim. at 68 at 516. The Court added S.Ct. effect, er, appellant argues theory felony-murder In on this claim that embodied a valid defective, jury require proof the instructions were not but rath- which did not venture. 716 Cir.1987). (10th This is not ignoring the F.2d 764 completely “without happened con what here. jury the could not have

judge’s charge, having committed petitioners victed place, contrary appellant’s to In the first distinct, substantially different separate, contention, jury did not re- §in 1.” Id. at 68 S.Ct. offense defined prove appel- quire the to that recognized, consistent with have 516. We him officers in order to convict lant shot the Cole, may not appellate court law “[a]n Rather, was in- felony-murder. theory entirely fully a conviction on sustain that, although structed the Commonwealth theory upon which the different from killed the offi- appellant did not claim Gomes, charged.” States v. United cers, felony-mur- still him of it could convict (1st Cir.1992); 1290, 1295 see Unit alia, if, he der inter .committed (1st 1169, 1197 Anguilo, F.2d 897 ed States jointly possessing unlawful while Cir.), cert. S.Ct. gun with his brother.8 (1990). 130, 112 L.Ed.2d 98 record, Furthermore, scanning the after unable to see how the concerns ex- we are appellate go An out court pressed implicated in this case. Cole are prosecution’s side of the trial to affirm of this action the Common- From the outset a conviction because a criminal defendant proceeded on the wealth and the defense charges against notice of the him must have understanding that Eddie killed the shared opportunity and an to be heard in a trial on officers, and that Juan could be convicted Cole, charges. the issues raised those only on the basis of Eddie’s Further, at 517. U.S. at 68 S.Ct. actions. This is consistent with the bill right has the to trial criminal defendant also pre- particulars, this was how the case was by jury opposed appellate an to trial trial, jury was sented at and this is how the States, See, e.g., Dunn v. United tribunal. clearly demonstrates instructed. The record U.S. sought prove that the Commonwealth to (1979) (appeals affirmed conviction court appellant to his broth- did not want restrain acts, alleged upon specific criminal based er, rather, intentions, shared his evil but ity of which the defendant was never afford just appellant sought prove opposite. to Reardon, notice); F.2d 681 ed Cola v. Appellant specific knew the acts that (1st Cir.) (same), denied trial, prove at Commonwealth endeavored to 93 L.Ed.2d precisely he knew with what crime he charged, upon knew the basis and he According appellant, is con Cole alleged acts constituted the crime trolling disagree. general, here. We Moreover, charged. is unable implicated expressed concerns in Cole are point any prejudice resulting from the appellate “charges” where an effect violation, alleged process due such as SJC’s crime, a defendant a new and then inability prepare proper defense. concludes that the evidence was sufficient to held, And, already any constitu- as we have support previously un a conviction for that prejudice might engen- been tional have Thus, charged prosecution if offense. by the variance between the in- dered decides to submit a case to the on one of structions and Massachusetts law cannot be theories, equally legal two valid and the proceeding. reviewed evidence, ap despite convicts insufficient on This This is an instructional error case. peal the court cannot resurrect the conviction recognized that court has by ruling that there was sufficient evidence objec- theory. contemporaneous [i]n convict on the alternative See the traditional Cornelius, situation, Saylor in v. 1403-04 tion the error inheres 845 F.2d (6th thus, Cir.1988); Hill, judge’s charge; it is reasonable to 835 United States fact, jury appellant acknowledged ports did In "the with the view that the instructions has that ap- government’s require jurors 'joint possession’ theory to determine whether as a felo- not rather, victims, ny-murder theory accountability pellant personally but a fic- shot the is under state law. tion in terms law." This com- were defective of Massachusetts

717 2781, 2797, objection at the time of the error. 61 require situation, however, (1979). the error applied In the Dunn This standard must be “with affirmance; appellate in the specific inheres reference to the elements of the of thus, yet not occurred at the the error has by Campbell fense as defined state law.” judge’s charge. Fair, (1st time of the Cir.), 838 F.2d 488 U.S. 109 S.Ct. 102 L.Ed.2d 100 Cola, case, In present 787 F.2d at just this, The did SJC and concluded complained of in the the error “inheres uphold that evidence sufficient to judge’s charge,” appellate and not “in the appellant’s Appellant conviction. does not court affirmance.” The SJC did not violate accuracy contest the ruling. of that process rights by recognizing appellant’s due improperly instructed on appellant’s proce- Because one of claims is felony-murder, ruling and then that the evi- defaulted, durally other two lack dence at trial was sufficient war- adduced merit, petition corpus his for a writ of habeas rant a conviction under Massachusetts law. is denied. That the Commonwealth misunderstood the legal principles underlying “theory” its Affirmed. received, guilt, and therefore asked for and objection, legally with no deficient STAHL, Judge, dissenting. Circuit instruction, place does not this case under Although agree majority I with the that a effect, the shadow cast In Cole. procedural argued could default have been in asks us to his claim of instructional review although I logic this can see the through the back door. error We decline to raising sponte behind such a default sua do so. circumstances, many myself I persuaded find Appellant’s argument final is little more by Judge strength view Oakes’s that “the repetition previous argument. than a of his petitioner’s case” also should be considered According appellant, in- because the deciding courts whether or not to raise necessarily required proof structions sponte. Washington, the default sua See officers, personally fact that he killed the (Oakes, J., And, dissenting). F.2d court should look to whether the evidence because, view, my a non-harmless error support was sufficient to a conviction under undermining guarantee the structural that theory. that Because there was no evidence requisite will make the elemental effect, appellant argues to that that the SJC clearly here, determinations was committed I found, find, should have and we must that petitioner’s would reach the merits of claim support there was insufficient evidence to grant the writ. felony-murder conviction. already my dissenting opinion Libby For the that ex- reasons we have v. Du val, (1st Cir.1994) (Stahl, J., plained, proceed the Commonwealth did not upon appellant personally dissenting), explain why I in detail I believe officer, killed the and the whole-record harmless-error review — Abrahamson, Therefore, require proof prescribed by not did fact. Brecht v. -, -, 1710, 1722, neither this court nor the SJC U.S. sufficiency against review the of the evidence L.Ed.2d cannot and should theory. petitioner reviewing When a a habeas utilized courts instructional er challenges sufficiency ju precluding action of the evi- rors which have the effect of dence, making requisite the court’s task is to determine wheth- ries from factual find Instead, viewing light ings argue er “after the evidence in the in criminal trials.9 as I prosecution, any Libby, reviewing most favorable to the ration- habeas courts such er employ al trier of fact could have found the essential rors for harmlessness should the test beyond concurring opin elements of the crime a reasonable set forth in Justice Scalia’s 263, 109 Virginia, California, doubt.” Jackson v. ion in Carella regard misleading majority’s grant I therefore as it would not the writ even were it to reach indicating petitioner’s citation to Brecht while dictum that the merits of claim. ante at 715. in See (and lentes],” id., Because in I see nature do not think S.Ct. charge viewed), to the error here —failure that can be so the shared in- joint unlawfully it find a venture joint that must underlying tent venture to commit in carry a a motor vehicle order to firearm attempted battery finding assault and carrying charge predi- as a use the unlawful very cannot be the same as the shared intent felony exactly murder —had cate offense for (unmade) any finding which would underlie 268-71, effect, id. at such an see S.Ct. joint unlawfully that there awas venture to (explaining how instructions misdes- 2422-23 carry a firearm. describe) (or failing cribing elements of finding petitioner The fact setting up mandatory crimes and firearm, guilty unlawfully carrying of crimes tend to presumptions on elements joint petitioner found that “had domin- making requisite preclude juries from ele- ion and control of the firearm Eduardo determinations) (Scalia, J., with concur- mental and intended to exercise dominion and con- ring), I review the error here accord- would me, presents, question. trol” for a closer As ing of the Carella concur- to the dictates (and majority opinion notes as the (1) SJC say, is to I would ask wheth- rence. That appeal), missing joint observed on direct charge only was relevant to an er the omitted finding encompasses venture a determination petitioner a crime of which element of “ petitioner ‘intentionally encouraged that or (2) acquitted; charge whether the omitted assisted Eddie Ortiz in the commission only peti- was relevant an element felony admitted; sharing and that he did so while tioner whether no rational Eddie actually required Ortiz the mental state for found what it did could have ” that charged (quoting crime.’ Ante at 713 not also find the element. find 700.) view, my jury’s 560 N.E.2d at at 2423. Because See id. at “joint prongs finding of the test dominion and control” one and two Carella clear- is the ly prong equivalent functional apply, do not I will focus on three of “the shared mental my analysis. joint conducting necessary finding. state” venture not, however, It is equivalent the functional it clear that the did find both While finding “intentionally petitioner that en- joint venture to commit the crime of at- couraged or assisted” Eddie the commis- tempted battery danger- with a assault and weapon. sion of the unlawful of the weapon petitioner ous that was unlawful- Thus, findings the record is devoid of factual ly carrying in a motor a firearm vehicle “ closely which are ‘so related to the ultimate (under an instruction that it to find fact that no rational [to found] could intent to exercise dominion and control over finding find those facts without also th[e] firearm), it to me that a rational seems ” Accordingly, ultimate fact.’ Id. the error jury, having findings, made these would not id.; here was not harmless. See see also necessarily also have found that there was a J., Libby, (Stahl, dissenting). 19 F.3d at 744 joint venture to commit the crime of unlaw- fully carrying a firearm a motor vehicle. grant I therefore would the writ. regard impact finding With attempt- there was a venture to commit battery, ed assault and the record reveals petitioner and his brother had aban- attempted battery pri- assault and doned the Thus, killings. underly- or to the intent ing charged necessarily crime must have (The prior jury’s to the murders. vanished form, special verdict which indicates that the attempted battery felony assault and was not predicate purposes offense for much.). conviction, implies murder This means, course, if even the two intents were equiva- somehow viewed as “functional

Case Details

Case Name: Ortiz v. Dubois

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 28, 1994

Citation: 19 F.3d 708

Docket Number: 93-1656

Court Abbreviation: 1st Cir.