Ortiz v. Dubois

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.

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

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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.

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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.

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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.

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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.

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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.

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II.

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:

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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.

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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

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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,

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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

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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).

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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

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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).

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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

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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.

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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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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.

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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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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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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

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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

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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.

Dissent follows.

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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.

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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

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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

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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.

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