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
follows:

On page 17, lines 4-6, change "we do not believe that appell
could meet the burden recently placed on him by the Supreme Cou
that the instructional error" to "we believe that the government
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

_________________
__________________
appellant.
Nancy W. Geary, Assistant Attorney General, with whom Sc
________________
__
Harshbarger, Attorney General, was on brief for appellee.
___________
____________________
March 24, 1994
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
_____________________
from

the denial

challenging

of a

his

habeas petition

Massachusetts

Appellant argues that his

the Fourteenth

Massachusetts
felony-murder
presented
evidence

to

Supreme

reasonable

Judicial

conviction
the

We

Court

applying

jury;

to support

petition.

felony-murder

conviction.

right to due process of

and

(3)

a
there

elements of
(2)

his

theory

not

insufficient

his felony-murder conviction

of guilt.
affirm,

but

the

affirmed

legal
was

law under

(1) the jury

doubt;
(SJC)

an appeal

Juan Ortiz

find all of the essential

beyond

Commonwealth's theory
the

filed by

Amendment was violated because:

was not instructed to

felony-murder

This is

under the

The district

court denied

for reasons

substantially

different than those expressed by the court below.

I.
I.
BACKGROUND
BACKGROUND
__________
We
facts.

commence with

recitation of

Appellant's convictions are

November 12, 1985.

That evening,

the

pertinent

based on the

events of

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.

between Eddie

Apparently

and various

there was

members of the

an ongoing

dispute

Rodriguez family.

In addition, there was evidence that several members

family, one who was believed to be Jose, paid a

of that

visit to the

-22

Stebbins Street apartment on the day

Eddie.

in question looking for

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

"back up."
that he

to provide

On the other hand, appellant introduced evidence

vehemently opposed

his brother's mission,

and went

along in order to serve as a voice of reason.

With Eddie

behind the

side, the two drove off

wheel and appellant

in search of their prey.

at his

En route,

Eddie pulled over to the curb, removed the gun and ammunition
from

his pocket,

himself

and

his

loaded
brother.

the

gun,
After

and placed
circling

it
the

between
intended

victim's
locate

block several

times, the

him, and returned to

brothers were

unable 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 cruiser got out
Ortiz vehicle.

The driver

and approached the driver's side

of

of the

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.

-33

There was evidence that, as the officers approached

the vehicle, both
gun, but
fled

appellant and his brother reached

Eddie got to

the

scene.

thereafter.
into custody.

it first.
Appellant

After the
was

for the

shooting, both

apprehended

shortly

Eddie committed suicide before he could be taken

On November

22, 1985

returned against appellant.

of second degree murder,
unlawful carrying of a
vehicle, and

latter

murder indictment,

theory of felony-murder.

felonies

as

predicates for

a motor

with a dangerous

The Commonwealth informed

the

counts

each officer,

firearm under his control in

respect to

two

was charged with two

attempted assault and battery

proceeding on a

indictment was

one for the death of

weapon, all felonies.1

that, with

He

a five count

appellant

it would

be

It designated the
the

felony-murder

charge.
Appellant's trial
the close of the
of

all

findings

the
of

Commonwealth's case and again at

evidence
not

commenced in January

appellant

guilty on

all

appellant guilty

on all

counts.

battery by means

of a dangerous

unsuccessfully
counts.

1987.

the close
moved

The jury

On attempted
weapon, the jury

At

for
found

assault and
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.
-44

appellant of being a "joint venturer" with his brother.

regard to the

unlawful carrying charge, the jury

appellant "jointly possessed"

special verdict, the jury
to be the sole

the gun with his

With

found that
brother.

By

found the unlawful carrying charge

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
rather

on a joint

venture theory,

but

on a basis that appellant "jointly possessed" the gun

with his
the

be proceeding

jury

brother.
on joint

As

a result, the judge

venture

principles as

did not instruct

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

the gun.

of them

were carrying

-55

After
renewed

the jury

his motion for findings

was denied in its

own

The SJC

its

verdict,

appellant

of not guilty.

The motion

entirety, and appellant appealed.

initiative, the

Court.

rendered

SJC removed the

case from

affirmed the convictions

and unlawfully carrying a

overt act, however, it

On its

the Appeals

for felony-murder

firearm in a vehicle.

Finding no

reversed the conviction for attempted

assault and battery by means of a dangerous weapon.

On
that

direct appeal,

the evidence

appellant alleged,

was insufficient

murder

conviction, and

charge

were

that the

defective.

The

to support

inter alia,
_____ ____
his felony-

jury instructions
SJC

rejected

on this

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

miscarriage of justice.
did not.

The court

held that it

Id. at 702.
___
Appellant

habeas

Id. at 701.
___

corpus in

then

filed a

petition

the United States

for

a writ

District Court

of

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.
-66

District of Massachusetts.

The district court ruled that the

jury instructions on felony-murder

evidence
sufficient.

supporting

this

were correct and that the

charge

This appeal ensued.

was

constitutionally

-77

II.
II.
DISCUSSION
DISCUSSION
__________
Appellant's first argument is that his right to due
process

was

instructed

violated
on

because

the

Massachusetts law,

the jury

elements

of

was

not

properly

felony-murder

under

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

element,

he

definitions

judge

elaborated

incorporated
of

the

two

by

more fully
reference

possible

on

the

second

his

previous

predicate

felonies:

-88

attempted assault and battery by means

of a dangerous weapon

and unlawful carrying of a firearm in a motor vehicle.3

On
instructed

the

unlawful

carrying

charge

the jury

that

the prosecution

the

needed to

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

judge
prove

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.
-99

The
needed to

judge

prove in

carrying, with

then

explained

order to convict

specific reference to

what

the

prosecution

appellant of

unlawful

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.

homicide

Under the felony-murder

rule in Massachusetts, "`a

committed

commission

commission of
549 N.E.2d

a felony is

which

646, 652

for

the underlying

of

aforethought.
guilty

proving
Id.
___

of homicide

constructively

attempted
v. Pope,
____

(quoting Commonwealth v.
____________

one of
to

The common

constructive

substitute

felony for

malice,

the mens

the state

law

rea

of mind

See Commonwealth v. Balliro, 209 N.E.2d

___ ____________
_______

308, 312 (Mass. 1965).

burden

is

or

Commonwealth
____________

(Mass. 1983)).

the prosecution

required for murder.

its

murder.'"

of felony-murder

allows

required

the

1120, 1123 (Mass. 1990)

Silva, 447 N.E.2d

_____
doctrine

during

It thus relieves the

the

essential

Nonetheless,
unless

prosecution of

element

of

"`[n]o person can

the act

is

malice
be held

either actually

or

his, and it cannot be his act in either sense

-1010

unless

committed by

concert

with him

purpose.'"
v.

his own

or in

Allen

by someone

acting in

a common

object or

furtherance of

Balliro, 209
_______

Campbell, 7
________

hand or

N.E.2d at 312 (quoting Commonwealth

____________
541,

544

(1863)).

"`Without

such

limitation, a person might be held responsible for acts which

were

not

the

natural

or

necessary

consequence

enterprise . . . in which he was engaged, and

not

either in fact or law be

intended.'"

Commonwealth
____________

of

the

which he could

deemed to have contemplated or

v. Burrell,
_______

452 N.E.2d

504, 506

(Mass. 1983) (quoting Campbell, 7 Allen at 544).

________
This "limitation" gives

rise to the

or joint

enterprise requirement.

"one who

aids, commands, counsels, or

of

joint venture

Under Massachusetts

law,

encourages commission

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

_______

(quoting Commonwealth
____________

v. Soares, 387 N.E.2d

______

505

499, 506, cert.

_____

denied, 444 U.S. 881 (1979)).

______
For the
requirement
defendant
course

purposes of

operates
is accused

in

the

this case, the

following

of personally

joint venture

manner.

killing another

When

in the

of committing a felony, then his intent to commit the

underlying felony may be substituted for the malice necessary

for a

murder conviction.

unclear

which one

If, on

of several

the

other hand,

co-felons killed

it

is

the victim,

-1111

then the Commonwealth

venture

must prove

the existence

of a

joint

to commit the underlying felony in order to obtain a

felony-murder conviction
Burrell,
_______

452

defendant's

N.E.2d
co-felon

against any of the

at

505-06.

was the

actual

co-felons.

Similarly,
killer,

where

in order

See
___
a
to

convict the defendant of felony-murder, the state is required

to

prove

the existence

underlying felony.

of a

joint

See Ortiz,
___ _____

venture to

560 N.E.2d

commit the

at 700

(citing

cases).
The

Commonwealth was

required

to prove

beyond a

reasonable doubt that appellant intentionally

assisted Eddie

in the commission

carrying of

firearm in

a motor

of the

felony of unlawful

vehicle,

mental state required for

sharing with

that crime.

his brother

See Pope,

a
the

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
joint

venture instruction

carrying

failure to include

in connection

charge rendered the

with the

unlawful

felony-murder instruction with

the carrying charge as the predicate felony defective because

-1212

it

did not

render him

responsible for

Commonwealth argues, consistent with its

appellant's
require

case, that

"Massachusetts

joint venture

instruction

Eddie's acts.

The

position throughout
state law
where,

predicate felony is a possessory crime . . . ."4

does

not

as here,

the

Faced with the SJC's clear statement on the matter,

we have no choice but to agree with appellant.
that

Ortiz could

not be

these facts unless the

with

Eddie

felony.
by

the

Id.
___

basis
others.

state required

vicarious
We

steadfastly
instruction,

murder on

for

the

predicate

But joint possession, the only theory presented

does

not require

shared state of mind,

for

of felony

Commonwealth proved that Ortiz shared

mental

the Commonwealth,

action or

found guilty

The SJC ruled

find

liability

and thus, does

for the

it incredible

refused to
especially

explanation of what the

recognize
in

proof of

light

not offer a

criminal

that the

the

acts

of

Commonwealth has

the defects
of

concerted

in the

SJC's

jury

careful

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).
-1313

In

fact, even

the SJC

properly instructed.
On
error.

acknowledged that

the jury

was not

See Ortiz, 560 N.E.2d at 702.

___ _____

direct

appeal, appellant

argued instructional

But, because he failed to timely object to the charge

as required by the Massachusetts contemporary objection rule,

see Mass. R. Crim.
___
claim on
whether

the

P. 24(b), the SJC declined to

merits

and instead

limited

its

review his
inquiry

to

the error gave rise to a substantial likelihood of a

miscarriage

of

justice.

Accordingly, before

Ortiz,
_____

we can decide

560

N.E.2d

at

702.

whether the instructional

error rises to the level of prejudicial constitutional error,

we

must

determine,

as

appellant's claim is barred

preliminary

matter,

whether

from federal habeas review under

the procedural default rule of

Wainwright v. Sykes, 433 U.S.

__________
_____

72 (1977).
Wainwright
__________
at

trial

to

an

contemporaneous
and adequate

held that the

alleged
objection

state ground"

habeas corpus review of the

error

failure to timely object

as

required

rule constitutes

by

state

an "independent

sufficient to foreclose
alleged error.

federal

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
-1414

order to escape from the preclusive

effect of his procedural

default, appellant is obligated to show both "cause" for, and

"prejudice" from,
contemporaneous
Carrier, 477
_______
record, we
failure

his noncompliance with

objection rule.

U.S. 478, 485

can find no

to

objection rule.

comply

(1986).

the Commonwealth's

Id. at
___
After

86-87; Murray
______

scrutinizing the

indication of cause
with

v.

Massachusetts'

Even assuming cause, however,

for appellant's
contemporaneous
our review of

the record reveals that appellant cannot meet the high burden

of

showing

petitioner

actual

prejudice.

scale

this

wall,

must demonstrate "not merely that the errors at .

. . trial created

a possibility of prejudice, but

worked to his actual

his entire

To

that they

and substantial disadvantage, infecting

trial with

error of

constitutional dimensions."

United States v. Frady, 456 U.S. 152, 170 (1982).

_____________
_____
Absent a

showing

of "cause"

and

"prejudice,"

procedural default may still be excused where failure to hear

the

claim

justice."

would result

in

"fundamental miscarriage

Murray, 477 U.S. at 495-96.

______

of

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).
-1515

invoked

where

resulted

in the conviction of one who is actually innocent .

. . ."

"a

constitutional

Id. at 496.
___

requirement

and

violation

has

probably

In order to satisfy the actual innocence

enable an

otherwise

barred constitutional

claim to be considered on the merits, a petitioner "must show

by

clear

and

convincing

constitutional error,

no reasonable

the petitioner [guilty]."

112

S.

Ct.

2514,

evidence

that

but

juror would

for

have found

Sawyer v. Whitley, __ U.S. __, __,

______
_______

2517

(1992)

(involving

petitioner's

eligibility for the death penalty).

Given the evidence
that

engaged

reasonable
in a

no

in a

state

cannot be

found

procedural

of

appellant

to unlawfully

Therefore, there
justice.

default,

challenged for

we believe

that

his brother

motor vehicle.

fundamental miscarriage

appellant's
charge

could have
_____

joint venture with

carry a firearm
been

jury

presented at trial,

the

Because
trial

has
of

court's

prejudicial constitutional

error in this proceeding.

But,

as appellant

points

out in

its brief,

Commonwealth has not argued procedural default.

this court has the
See
___

authority to raise the issue

the

Nonetheless,
sua sponte.
___ ______

Washington v. James, 996 F.2d 1442 (2d Cir. 1993) ("[w]e

__________
_____

believe that

we may raise

sponte"); Hardiman
______
________
(10th

Cir. 1992)

the procedural default

v. Reynolds, 971
________
(district court

issue sua
___

F.2d 500, 502-04

may raise

& n.4

procedural bar

-1616

defense sua sponte); Hull v. Freeman, 932 F.2d 159, 164 & n.4
___ ______
____
_______
(3d Cir.

1991) ("because a state-law

effect a

bar to federal habeas

appropriate for
Mansfield v.
_________
1993)

(court

procedural default can

review, we think that

us to consider that issue

Champion, 992
________
not required

F.2d 1098,
to

raise

it is

sua sponte"); cf.

___ ______
___

1099 n.2

(10th Cir.

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
that the

have been

issue cannot be

unable to

find any

raised sua
___

sponte.
______

circuit holding
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.

___ __________

-1717

at 83;

Engle v. Isaac,
_____
_____

456 U.S. 107,

129 (1982).

Because

these concerns implicate "values that transcend

of the

parties to

an action,

. . .

it is

the concerns

not exclusively

within the parties' control to decide whether such a

defense

should

at 503.

be raised

or waived."

Where, as is the
clear

on the

971 F.2d

case here, the state procedural

face of

expenditure of

Hardiman,
________

the

record, it

default is

would be

scarce judicial resources were

a needless

we to address

the merits of appellant's claim.

Moreover,

even if

claim, we believe that

demonstrating that
and injurious

we reached

the merits

the government has met its

of this
burden of

the error did not

"`ha[ve] a substantial

effect or influence in

determining the jury's

verdict.'"

Brecht v. Abrahamson, __
______
__________

1710, 1714

(1993) (quoting

U.S. __, __, 113 S. Ct.

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
because the SJC
that

was

not

affirmed his
presented

to

conviction on
the

appellant contends that, because

the

jury be

charged as

that his writ

jury.

principles in connection

charge,

it necessarily
___________

a legal
More

theory

precisely,

the Commonwealth asked that

to joint

venture

should issue

possession and

not joint

with the unlawful carrying

proceeded

Ortiz personally killed the victims.

on the

theory that

Juan

According to appellant,

-1818

it

follows

that

"the

jury

instructions

required

the

government to prove beyond a reasonable doubt that Juan Ortiz

was

personally responsible

victim."7
assessed

Therefore,
the facts

for

appellant

of his

the acts

concludes

case against

joint venture -- that did not reflect

was

tried.

In support

of his

that killed
that

a legal

the

each
SJC

theory --

the theory on which he

position,

appellant relies

primarily on Cole v. Arkansas, 333 U.S. 196 (1948).

____
________
In Cole, an information charged the defendants with
____
violation

of

subsequently
333

U.S.

at

2 of an Arkansas criminal statute.

tried and convicted
198.

The

state

of

They were

violations.

supreme

court

affirmed

defendants' convictions on the ground that they violated

of the same statute, which

found

that the

describes an offense separate and

distinct from the offense described in

Court

Cole,
____

defendants

"were

2.

Id.
___

The Supreme

clearly tried

and

convicted by

the jury

made an offense by
using
The

for promoting an

unlawful assemblage

2, and were not tried for the offense of

force and violence as described in

Court

added

that,

"without

1."

completely

Id. at 199.
___
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.
-1919

substantially different offense defined in

We

have

recognized,

appellate court

consistent

may not lawfully

with

1."
Cole,
____

Id. at 200.
___
that

sustain a conviction

"[a]n
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

prosecution's trial

court

may

not go

theory to affirm a

criminal defendant

must have

him and an opportunity to

outside

the

conviction because a

notice of the

charges against

be heard in a trial on

raised by those charges.

Cole,
____

333 U.S. at 201.

criminal defendant also

has the

right to trial

opposed to trial by

of

an appellate tribunal.

See,
___

the issues
Further, a
by jury

as

e.g., Dunn
____ ____

v. United States, 442 U.S. 100 (1979) (appeals court affirmed

_____________
conviction based upon specific acts, the
of

which the defendant

Reardon, 787
_______

alleged criminality

was never afforded

F.2d 681 (1st

notice); Cola v.
____

Cir.) (same), cert.

_____

denied, 479
______

U.S. 930 (1986).

According
We

disagree.

implicated
defendant
evidence

to appellant, Cole
____

is controlling here.

In general, the concerns expressed in Cole are

____

where an
with a

appellate court

new

crime, and

was sufficient

previously uncharged

to

then

support a

offense.

-2020

in effect

Thus,

"charges" a

concludes that
conviction for
if

the

the
that

prosecution

decides to
valid

submit a case to

legal

theories,

insufficient evidence,
the conviction
to

convict

Cornelius,
_________

the jury on one

and

the

jury

on appeal the

the

alternative

845 F.2d

convicts

was sufficient evidence

theory.

1401, 1403-04

despite

court cannot resurrect

by ruling that there

on

of two equally

See
___

(6th Cir.

Saylor
______

v.

1988); United
______

States v. Hill, 835 F.2d 759, 764 (10th Cir. 1987).

______
____

This is

not what happened here.

In
contention,
Commonwealth
order

the
the

first
jury

to prove

place,

contrary

instructions

did

that appellant

to convict him of felony-murder.

to
not
___

appellant's
require

shot the

the

officers in

Rather, the jury was

instructed that, although the Commonwealth did not claim that

___
appellant killed the officers, it
felony-murder

if, inter
_____

unlawful carrying

alia,
____

could still convict him of

he committed

while jointly possessing the

the felony

of

gun with his

brother.8
Furthermore,

after

scanning

the record,

we

are

unable

to

see

how

the

concerns

implicated in this case.

Commonwealth

and

the

expressed

From the outset

defense

in

Cole
____

are

of this action the

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.
-2121

understanding that
could

Eddie killed the officers,

be convicted

Eddie's

of felony-murder

actions.

This

particulars, this was

and this is

shared

is consistent

how the case

that

the

just the opposite.

with

the

basis of
bill

of

trial,

The record clearly

Commonwealth sought

did not want to

his evil

on the

was presented at

how the jury was instructed.

demonstrates
appellant

only

and that Juan

to

prove

that

restrain his brother, but rather,

intentions, and

appellant sought

to prove

Appellant knew the specific acts that the

Commonwealth endeavored to prove

at trial, he knew precisely

with what
which

crime he was charged,

the

alleged

Moreover,

appellant

acts

constituted

is unable

resulting from the SJC's

as the inability
have

already held, any

have

been

to

the

point

basis upon

crime
to any

charged.
prejudice

alleged due process violation, such

to prepare a

engendered

and he knew the

proper defense.

And, as

constitutional prejudice
by

the

variance

between

we

that might
the

jury

instructions and Massachusetts law cannot be reviewed in this

proceeding.
This is

an instructional

error case.

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

-2222

error has not yet occurred at the time of

the judge's charge.

This court

Cola,
____

787

F.2d at

complained
the

694.

In

of "inheres in

appellate court

appellant's due

the present

case,

the judge's charge,"

affirmance."

was improperly

instructed on felony-murder,

that the evidence adduced at

and not "in

The SJC did

process rights by recognizing

the error

not violate
that the jury

and then ruling

trial was sufficient to warrant

a conviction under Massachusetts

law.

That the Commonwealth

misunderstood the legal principles underlying its "theory" of

guilt,

and

objection,

therefore
a

asked

for

legally deficient

place this case under

appellant asks

and

jury instruction,

the shadow cast

In

no

does not
effect,

We decline to do so.

Appellant's final

argument is

repetition of his previous argument.

the fact that

by Cole.
____

with

us to review his claim of instructional error

through the back door.

because the

received,

little more than

According to appellant,

jury instructions necessarily required

he personally killed the

proof of

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

-2323

theory that appellant

personally killed the officer,

not

require proof

court

of that

nor the SJC is

the evidence against

and the jury instructions did

fact.

Therefore,

required to review
that theory.

neither this

the sufficiency of

When a

petitioner in

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

of

trier

fact

could

have

found

the

elements of the crime beyond a reasonable doubt."

Virginia,
________
applied

443 U.S. 307, 324

"with

(1979).

specific reference

offense as defined by state law."

to

This
the

essential
Jackson v.
_______

standard must be
elements of

the

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

defaulted, and the other

claims is procedurally

two lack merit, his petition

for a

writ of habeas corpus is denied.

Affirmed.
Affirmed.
________
Dissent follows.
Dissent follows.

-2424

STAHL,
agree

in this case, and

raising

such

"the

strength of

considered by

sua
___

sponte
______

the logic
in

many

persuaded by Judge Oakes's view

petitioner's

courts deciding

default sua sponte.

___ ______

although I can see

default

circumstances, I find myself

that

Although I

with the majority that a procedural default could have

been argued
behind

Circuit Judge, dissenting.

_____________

case"

whether or

also should
not to raise

be
the

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

committed

here, I

elemental
would

determinations

reach the

merits of

clearly
_______

was

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
whole-record

harmless-error review

Abrahamson, 113
__________
not

be

which

in detail why I believe

utilized

S. Ct. 1710,
by courts

have the effect

argue in

1722 (1993) cannot

reviewing

and should

from making the

criminal trials.9

Libby, habeas courts

_____

Brecht v.
______

instructional errors

of precluding juries

requisite factual findings in

I

prescribed by

that the

reviewing such

Instead, as
errors for

____________________
9.
to

I therefore regard as misleading the majority's citation

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.
___ ____
-2424

harmlessness

should employ

Scalia's concurring
U.S. 263 (1989).
the

jury that

carry

it must
in a

unlawful carrying
--

in Carella
_______

find a
motor

charge as

had exactly

(explaining how

test set

forth in

Justice

v. California,
__________

491

Because the error here -- failure to charge

a firearm

murder

opinion

the

of

vehicle in

to unlawfully

order

to use

a predicate offense

such an

instructions

describe) elements

joint venture

effect,

crimes and

for felony

see id.
___ ___

misdescribing (or
instructions

the

at 268-71
failing

to

setting

up

mandatory presumptions on elements of crimes tend to preclude

juries

from

(Scalia,

J.,

according to
is to

making

concurring), I

ask (1)

only to an element

was acquitted;

elemental

would

(2) whether

determinations)

review

the dictates of the Carella

_______

say, I would

relevant

requisite

the error

here

concurrence.

That

whether the omitted

of a crime

of which petitioner

the omitted charge

only to an element which petitioner admitted;

no rational jury could
and

not also

find the

charge was

was relevant
or (3) whether

have found what it actually

________
charged element.

See
___

id.
___

did find
___ ____
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
a

both

joint venture to commit the crime of attempted assault and

battery

with

a dangerous

unlawfully carrying a

weapon

and

firearm in a

that petitioner

motor vehicle (under

was
an

-2525

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

reveals

record

abandoned
killings.
must

that

the attempted
Thus,

petitioner and
assault

the intent

necessarily have vanished

his

and battery

underlying that
prior to the

brother

had

prior to
_____ __

the

charged crime
murders.

(The

jury's

special

attempted

verdict

assault and

form,

battery

which

indicates

felony was

that

not a
___

the

predicate

offense for purposes of the felony murder conviction, implies

as much.).
intents
see
___

This

means,

were somehow

viewed as

id., in nature (and

___

viewed), the
commit the

of course,

if the

they can be so

underlying the joint

attempted assault

two

"functional equivalent[s],"

I do not think that

shared intent

the very same as

that even

venture to

and battery finding

the shared intent which would

cannot be
______

underlie any

(unmade) finding that there was a joint venture to unlawfully

carry a firearm.
The
guilty
that

fact

of unlawfully
petitioner

"had

that,

in

carrying the
joint

finding

the

petitioner

firearm, the

jury found

dominion and

control

of

the

-2626

firearm with

Eduardo and

control" presents,

for

intended to exercise
me,

closer

dominion and

question.

As

the

majority opinion
appeal),

the

notes (and

as the

missing joint

venture

determination that petitioner

assisted Eddie Ortiz in
he did so

In

petitioner

Ante at
____

a joint venture finding.

functional equivalent

"intentionally encouraged
__________

closely
rational

is

devoid

of

of a

find those

the[e] ultimate fact.'"

not harmless.

See id.;
___ ___

and

It is

finding that

or assisted"
________

factual findings

related to the ultimate

jury could

state

Ortiz, 560
_____

Eddie in

the commission of the unlawful carrying of the weapon.

the record

or

and that

the mental

11 (quoting

functional equivalent of "the shared

mental state" necessary for

however, the

"`intentionally encouraged

my view, the jury's "joint dominion

control" finding is the

__

not,

finding encompasses

with Eddie Ortiz

for that crime.'"

N.E.2d at 700.)

on direct

the commission of a felony

while sharing

required

SJC observed

Id.
___

which

fact [to be

are

Thus,
"so

found] that no

facts without

also finding

Accordingly, the error here was

see also Libby,

___ ____ _____

slip op. at

(Stahl, J., dissenting).

I therefore would grant the writ.

-27-

__-__

27