Watkins v. Murphy

United States Court of Appeals
For the First Circuit

No. 01-2018

LONNIE WATKINS,

Petitioner, Appellant,

v.

PAUL MURPHY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,

Bownes and Magill,* Senior Circuit Judges.

Robert L. Sheketoff, with whom Sheketoff & Homan was on brief,
for appellant.
Cathryn A. Neaves, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for appellee.

June 11, 2002

*
Of the Eighth Circuit Court of Appeals, sitting by
designation.
 MAGILL, Senior Circuit Judge. Petitioner Lonnie Watkins

appeals the district court's June 26, 2001 denial of his request

for a writ of habeas corpus. The district court had jurisdiction

pursuant to 28 U.S.C. § 2254 (1994 & Supp. II 1996). On July 6,

2001, Watkins filed a timely appeal and a motion for a certificate

of appealability on the issues of (1) whether Watkins was denied

due process of law when the state trial court gave a supplemental

charge on felony murder, and (2) whether he was denied due process

of law when the state trial court erroneously defined proof beyond

a reasonable doubt. On July 12, 2001, the district court granted
the motion. Our jurisdiction is proper pursuant to 28 U.S.C. §§

1291 and 2253 (Supp. II 1996). For the reasons stated below, we
affirm.

I.

The following facts, which are taken from the Supreme
Judicial Court of Massachusetts's (the "SJC") decision in

Commonwealth v. Watkins, 683 N.E.2d 653 (Mass. 1997), are entitled

to a presumption of correctness. 28 U.S.C. § 2254(e)(1) (1996);
see Sanna v. DiPaolo, 265 F.3d 1, 7 (1st Cir. 2001). The facts are
as follows:

On the evening of March 27, and into the early morning of

March 28, 1993, Watkins attended a birthday party at a house in the

Dorchester section of Boston with several of his friends. Also

attending the party were the victims, Lloyd Industrious and Kevin

Christopher, the latter of whom was wearing two large gold chains

around his neck. At some point during the evening, Watkins and at

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least three of his friends, Mark Anderson, Marcus Edwards, and

Michael Payne,1 decided to steal the chains from Christopher. They

later agreed they would wait until the party was over before doing
so. One of the other guests at the party, Ana Bodden, testified at

the trial that about an hour before the end of the party, Watkins

and two of his friends showed her the guns they were carrying.2
Shortly before 4 a.m., the party ended and the guests

began to leave. Bodden and six other party-goers got into a Ford

Taurus, with Bodden in the passenger seat. Bodden testified that

right before the shooting, Edwards was standing on the sidewalk

talking to the driver of the Taurus, Charae Chretien. While

Edwards was talking to Chretien, Bodden heard gunshots. She

testified that she saw Watkins, Payne, and Anderson shooting at
Christopher and Industrious, who were on the ground. Bodden

observed someone shoot Industrious as he attempted to stand up; she

testified that she thought Payne was the person shooting at
Industrious. She identified Watkins and Anderson as the two who

shot Christopher. When the shooting stopped, the shooters turned

and ran down the street past the Taurus. Bodden testified that she

1
The Commonwealth also prosecuted Anderson, Edwards, and Payne
for both the robbery and murders of Christopher and Industrious.
Anderson was tried as a juvenile. Edwards and Payne were convicted
on both counts, and their convictions were upheld by the SJC. See
Commonwealth v. Payne, 690 N.E.2d 443 (Mass. 1998).
2
Bodden testified that Watkins showed her a gun that he
carried under his shirt. Watkins, 683 N.E.2d at 655. Ultimately,
however, the jury acquitted Watkins of the charge of unlawful
possession of a firearm. Id. at 654 n.1.

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saw Anderson grab a chain from Christopher and saw Edwards take a

chain from Industrious.

Adrian Castillo, another passenger in the Taurus,
testified at trial. She testified that after the party, as she was

sitting in the Taurus, and shortly after Edwards spoke with

Chretien, she heard gunshots. When Castillo looked up, she saw
Payne, Edwards, and another man whose back was toward her, shooting

at Christopher. She also saw a man over six feet tall standing

alone near the sidewalk side of the automobile, and saw sparks from

that side of the automobile. As reported to the police, Watkins is

six feet, five inches tall.

At trial, the prosecution played a tape recording of

Watkins's statements to the police following his arrest. In these
tapes, Watkins apparently admitted that during the party he

discussed with his friends the possibility of robbing Christopher

and Industrious. However, he said that he later "copped out" of
the plan after one of his friends told him they would probably have

to kill their victims in order to get the chain(s). Based on these

statements, Watkins argued at trial that even if a criminal joint

venture existed between Watkins and his friends on the evening of

the incident, Watkins withdrew from the joint venture before any

crimes were committed, and therefore he should escape culpability

for the crimes. The prosecution disputed Watkins's alleged

withdrawal.

On June 28, 1994, Watkins was convicted by a jury on two

indictments charging armed robbery and two indictments charging

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murder in the first degree by reason of extreme atrocity or cruelty

and felony murder. The trial judge in the Superior Court sentenced

Watkins to two concurrent terms of life imprisonment on the murder
convictions, and two terms of from fifteen to twenty years on the

armed robbery conviction. Watkins was found not guilty of unlawful

possession of a firearm. Watkins appealed these convictions to the
SJC. Ultimately, the SJC affirmed his convictions.

II.

Watkins argues that two different sets of jury

instructions violated his due process rights. As will be shown
below, these claims are without merit.

A. Supplemental Instructions on Joint Venture and Withdrawal

Watkins's first challenge is to the propriety of the

trial judge's jury instructions regarding joint venture and
withdrawal. Watkins argues that in responding to the jury's last
question to the court, the judge failed to remind the jury of the

possibility of withdrawal from a criminal joint venture, thus
giving the erroneous view that if Watkins was found guilty of
robbery, he should also necessarily be guilty of murder in the
first degree. This, Watkins contends, effectively removed from the

jury both the issue of withdrawal and the issue of the degree of

murder in violation of his due process rights.

The jury's last question was:

Considering the joint venture clause and the
relationship of malice to murder, is it
contradictory to find someone guilty of armed
robbery, but not guilty of murder, if the

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 robbery results in the victim's death? Why or
why not?
Upon hearing this question, Watkins's trial counsel asked the judge

to respond that such a finding was permissible, based on the

doctrine of withdrawal. Watkins's counsel argued that it would not
be contradictory to find a defendant guilty of armed robbery but

not guilty of murder because under Massachusetts law, it is

possible for an individual to abandon a joint enterprise and avoid

guilt for a crime committed subsequent to his abandonment.

The judge did not comply with Watkins's request. In

responding to the question above, the trial judge pointed to an

earlier instruction, which correctly stated the law. That
instruction came from an undisclosed SJC opinion and reads:

[a] defendant who kills [his] victim in the
commission . . . of a robbery while the
defendant is armed with a gun is guilty of
[first degree] murder by application of the
felony/murder rule, and conscious disregard of
the risk to human life need not be further
shown.

After reading this language, the trial judge noted:

If a defendant is engaged . . . at the time in
a joint criminal venture, . . . but is not
himself armed with a gun, he is still
responsible for the others engaged in that
armed robbery, provided that he himself has
actual knowledge and knows that the co-
venturer is armed with a gun and has the same
specific intent.

In conclusion, the trial judge made it a point to remind the jury

to consider separately each indictment against Watkins.

Watkins argues that these instructions removed from the

jury both the question of withdrawal, upon which the jury had been

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previously and correctly instructed, and the issue of the proper

degree of murder for which to convict him. This, Watkins argues,

amounts to a directed verdict in violation of his due process
rights, Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), which in

turn violates the mandate that all elements of a crime be proven

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364
(1970). While these arguments are novel, they are unsubstantiated

by the record before us.

1. Presence of a Federal Claim

Before we explore the merits of Watkins's claim, we must
first address whether our jurisdiction is proper. The Commonwealth

argues that the district court erroneously reviewed Watkins's
petition on the issue of whether the trial court erred when it gave
its supplemental instructions. In particular, the Commonwealth

argues that the state-law nature of jury instructions makes such
decisions unreviewable. We review these claims de novo. Phoenix

v. Matesanz, 189 F.3d 20, 24 (1st Cir. 1999).

Here, Watkins claims that his due process rights were
violated by the trial judge's supplemental instruction on joint
venture, because it did not include a definition of withdrawal and

because it instructed the jury to find him guilty of first degree
murder if it found him guilty of armed robbery. While it is
axiomatic that it is for state courts to say what state law is,

Gilday v. Callahan, 59 F.3d 257, 274 (1st Cir. 1995), it does not

logically follow, as the Commonwealth appears to suggest, that all

claims that touch upon state law are barred from federal habeas

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review. As we understand it, the Commonwealth's argument on this

score appears to be geared more toward the merits of Watkins's

claims, and not so much the source of law that forms the basis for
those claims.

Although it is true that jury instructions are inherently

a question of state law, that does not mean that they are
completely unreviewable. A perfect example is the case before us.

In one sense the Commonwealth sees no reason why we want for

jurisdiction on the "moral certainty" instruction, yet it argues

that we are without jurisdiction to hear the issue regarding the

supplemental instructions. Here, Watkins correctly frames his

arguments regarding the supplemental instructions in terms of

having the effect of removing from the jury consideration of both
the issue of withdrawal and the issue of the degree of the murder

committed. In doing so, Watkins calls into question whether this

instruction had the effect of removing an issue from the jury that
needed to be proved beyond a reasonable doubt. If this were true,

the requirement that all elements of a crime need to be proven

beyond a reasonable doubt would be compromised in derogation of due

process rights guaranteed by the United States Constitution,

Winship, 397 U.S. at 364. Thus the trial judge, in essence, may

have directed a verdict when there were issues of fact to be

resolved, in violation of the Court's decision in Sullivan. 508

U.S. at 277.

As noted above, the Commonwealth confuses the underlying

strength of Watkins's claim with the underlying foundation upon

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which that claim is based. It is this error that is the foundation

upon which the Commonwealth's challenge to our jurisdiction rests.

However, because Watkins's claim does not lie solely in state law,
but rather rests firmly within the ambit of the United States

Constitution, we find no error in exercising jurisdiction over the

merits of Watkins's claim.

2. Proper Standard of Review

We face one more hurdle, however, before we are able to

reach the merits of Watkins's claim. The parties dispute the

proper standard of review. Watkins argues that the proper standard
of review for his claim on this issue should be de novo because the

SJC did not address the federal constitutional question, although
Watkins raised it. The Commonwealth, both in its brief and at oral
argument, vigorously argue that the proper standard of review for

this claim is the more stringent standard imposed by the
Antiterrorism and Effective Death Penalty Act ("AEDPA").3 In so
arguing, the Commonwealth appears to rely on the same arguments on

which it disputes our jurisdiction, and once again fails to
understand the difference between the merits of Watkins's claim and
the underlying basis for his claim. In doing so, the Commonwealth

calls into question this court's decision in Fortini v. Murphy, 257

3
Under AEDPA, the federal courts must accept a state's legal
ruling unless it is "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1)
(Supp. II 1996).

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F.3d 39 (1st Cir. 2001), without providing any explanation as to

why it should not apply.

As we held in Fortini:
AEDPA's strict standard of review only applies
to a "claim that was adjudicated on the merits
in state court proceedings." 28 U.S.C. §
2254(d). Here, the federal claim was never
addressed by the state courts. All of the
cases that have touched on this problem (none
is directly in point) assume that the statute
applies only when the state court decided the
federal issue. After all, AEDPA imposes a
requirement of deference to state court
decisions, but we can hardly defer to the
state court on an issue that the state court
did not address. Cf. Williams v. Taylor, 529
U.S. 362, 402-06 (2000).

257 F.3d at 47 (footnote omitted) (emphasis added). The language
of Fortini could not be more clear. Properly understood, Fortini

instructs us that if state courts want us to defer to their

rulings, they must, at a bare minimum, address the constitutional
issue when properly raised. That is, if they do not address the

constitutional claim, we have nothing to defer to. When

determining the proper standard of review, we should avoid going

against the plain language of the AEDPA, as Fortini clearly

recognized. We now take this opportunity to reinforce what we said

in Fortini. Accordingly, because the SJC did not discuss Watkins's

federal constitutional claim, although it was raised in that court,

we review Watkins's claim de novo.

3. De Novo Analysis of Watkins's Claim

As we noted above, Watkins argues that the trial court's

supplementary instruction on joint venture gave the jury the

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erroneous view that if it found him guilty of armed robbery, it

would then be required to find him guilty of first degree murder,

lest it be contradictory. This, Watkins argues, amounts to a
directed verdict and therefore violates due process. As Watkins

points out, it may very well be possible for someone to withdraw

from a joint venture too late to avoid responsibility for his
coventurers' commission of an armed robbery, but in time to avoid

responsibility for their subsequent commission of murder. While

this may be possible in the abstract, it cannot be so on the facts

before us.

The facts of this case clearly show that both the murders

and robbery were intertwined, with the robbery occurring either

during or directly after the murders. Under Massachusetts law, an
individual may only escape liability for felony murder by virtue of

withdrawal if there was "'at least an appreciable interval between

the alleged termination [of the joint venture] and the fatal
shooting, a detachment from the enterprise before the shooting

[became] so probable that it [could not] reasonably be stayed.'"

Commonwealth v. Fickett, 526 N.E.2d 1064, 1069 (Mass. 1988)

(quoting Commonwealth v. Green, 20 N.E.2d 417, 422 (Mass. 1939)).

Because Watkins alleges his withdrawal occurred prior to the

robbery, not between the robbery and the murders (if any such time

actually existed), if the jury actually believed that Watkins

"copped out," it would have had to acquit him of both the robbery

and the murder.

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 Furthermore, the judge's response to the jury's question

appropriately reiterated the proper legal standard under

Massachusetts law. The mere fact that the trial judge did not
remind the jury of the possibility of withdrawal did not, in any

way, interfere with the jury's determination of the facts. In

fact, after instructing the jury, the trial judge made it perfectly
clear that even if the jury was to find Watkins guilty of robbery,

it still needed to consider each charge in the indictment

separately. Considering that the trial judge had properly

instructed the jury earlier not once, but twice, on the issue of

withdrawal, there is no reason to assume that the jury did not

follow these instructions. Factually speaking, there is no way

that the trial judge's instructions impermissibly directed a
verdict of guilty on the murder charge or invaded the province of

the jury's duty to find facts. In fact, the supplemental

instruction focused on a defendant "engaged . . . at the time in a

joint criminal venture" (emphasis added) and so left open the

possibility of the defendant having withdrawn from the joint

criminal venture before the murder. The instruction did not

withdraw the issue from the jury.

B. Reasonable Doubt Instruction

Watkins's next claim involves the propriety of the trial
judge's instruction to the jury regarding the proper meaning of

"beyond a reasonable doubt." It is well established that in every
criminal trial, the state must prove every element of the offense

charged beyond a reasonable doubt. Winship, 397 U.S. at 364.

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Watkins contends that in his trial, the trial judge's instruction

on the meaning of the words "beyond a reasonable doubt" was severed

from any language stressing the high degree of certainty required
to convict a defendant, and therefore "there is a reasonable

likelihood that the jury understood the instruction[] to allow

conviction based on proof insufficient to meet the Winship

standard." Victor v. Nebraska, 511 U.S. 1, 6 (1994).4

Accordingly, Watkins argues, "there has been no jury verdict within

the meaning of the Sixth Amendment." Sullivan, 508 U.S. at 280.

We disagree.

In making our determination, we direct the parties to the

well-reasoned opinion of the district court that correctly held

that the jury instructions in question were constitutional. In
addressing the merits of Watkins's claim, the district court

reviewed in earnest the challenged instruction. Watkins v. Murphy,

No. 98-11114-NG, slip op. at 7-9 (D.Mass. June 26, 2001). As the
district court correctly pointed out, while reference to the phrase

"moral certainty" might be constitutional error in certain
circumstances, the use of the phrase in the jury instruction before

us, in the context of the instruction as a whole, appropriately

conveyed the concepts of proof and reasonable doubt. Id. at 13-15.

For the reasons contained within the opinion of the court below, we

affirm that court's decision to deny the writ on the basis that the

4
In particular, Watkins argues that the inclusion of the
phrase "moral certainty," which is inherently difficult to grasp,
in the jury's instructions violates his due process rights because
it permitted the jury to convict him on something less than proof
beyond a reasonable doubt.

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jury instruction in question did not violate Watkins's due process

rights because it adequately conveyed the meaning of proof beyond

a reasonable doubt.

III.

For the foregoing reasons, we affirm the district court's

denial of Watkins's petition for a writ of habeas corpus.

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