Richard v. Callahan, 83-1370
| Decision Date | 27 December 1983 |
| Docket Number | No. 83-1370,83-1370 |
| Parties | Lester J. RICHARD, Jr., Petitioner, Appellant, v. William F. CALLAHAN, Jr., et al., Respondents, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
John P. Osler, Boston, Mass., for petitioner, appellant.
Linda G. Katz, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Boston, Mass., Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for respondents, appellees.
Before CAMPBELL, Chief Judge, TIMBERS, * Senior Circuit Judge, and BOWNES, Circuit Judge.
Petitioner, Lester J. Richard, Jr., a Massachusetts state prisoner, appeals from a judgment entered March 31, 1983 in the District Court for the District of Massachusetts dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254 (1976). The petition challenged, as violative of the due process and double jeopardy clauses of the United States Constitution, consecutive sentences petitioner is serving for second degree murder and armed robbery following his plea of guilty entered in the Superior Court of Hampden County, Massachusetts, on March 19, 1968 after twelve days of trial. The petition was dismissed by the District Court on the ground that it had failed to state a federal constitutional claim. We affirm.
On July 13, 1967, petitioner, then age 21, was among a large number of young people who were congregated in the Winchester Square area of Springfield, Massachusetts. Petitioner, along with most of his codefendants, 1 was drinking during the afternoon when at some point he announced to his companions that he intended to "pull a robbery" that night. Shortly thereafter, he rented a car and began driving with Parker to survey potential sites for the robbery.
When petitioner and Parker returned to the Square, Flowers, Zachery and Bass joined them in the car. According to petitioner's testimony, he thereupon told the other four that any of them could still withdraw from the planned robbery if they wished. No one having left the car, petitioner drove to Gordon's house. Petitioner testified that he was aware that Gordon had a gun. After arriving at Gordon's house, petitioner went inside while the other four remained in the car. There was conflicting evidence as to the exact sequence of events at Gordon's house, but one fact emerges clearly: Gordon eventually joined the other five in the car with a gun in his possession.
The six men drove to a Cumberland Farms store, at which point petitioner said to the group, "This is the place." Petitioner then asked who was going to go into the store. Parker and Flowers said that they would. Gordon then handed the gun to Flowers, but it was promptly taken from him when it appeared that he, Flowers, was too "high" and after he said he wanted to kill a "honkey". The gun was then given to Parker. He was instructed on its use. One defendant testified that petitioner warned that, if the store clerk acted up at all, the gun should be used.
The defendants then decided that the area around the Cumberland Farms store was too crowded. They began to drive around again. After surveying at least two other stores, they finally decided to rob the Summit Package Store in Springfield. Parker and Flowers got out of the car, having made plans to rendezvous with the others after the robbery.
Parker still had the gun at the time he got out of the car, but he became nervous and gave it to Flowers. Both men went into the store. After Parker asked the clerk for some beer, Flowers announced the holdup. Flowers took all of the money out of the cash register while the frightened clerk stood nearby, offering no resistance. At this time, Parker left the store. As he stepped outside, Parker testified he heard a shot. A bystander testified that when he heard the shot, he saw two men run from the store. Parker and Flowers did not meet up with the other four until they arrived back at Flowers' house. Several of the defendants testified that Flowers admitted to them at that time that he shot the clerk.
The six men were indicted and thereafter were tried together before a jury. The indictment charged petitioner with first degree murder, armed robbery, conspiracy to commit armed robbery, conspiracy to murder, being an accessory before and after the fact to murder, and conspiracy to being an accessory after the fact to murder. Trial of the six defendants began in early March 1968. It proceeded for twelve days. In his closing argument, the prosecutor argued two theories of first degree murder: premeditation and felony murder. On March 19, after the trial had been concluded except for the jury charge, petitioner changed his plea to guilty of the offenses of second degree murder, armed robbery, and conspiracy to commit armed robbery.
At the time of sentencing, the prosecutor urged, in addition to the mandatory life sentence for second degree murder, that petitioner be given a consecutive 15 to 30 year sentence for armed robbery. The court imposed the recommended sentence. Petitioner has been incarcerated ever since. 2
In 1979, more than ten years after his state court conviction, petitioner filed a petition for a writ of error in the Supreme Judicial Court of Massachusetts (SJC). There he argued that his conviction was based solely on the theory of felony murder, 3 and that, since Massachusetts does not permit consecutive sentencing for felony murder and the underlying felony, his consecutive sentence for armed robbery violated the double jeopardy clause of the United States Constitution. 4 He claimed that the double jeopardy bar precludes a state from punishing a defendant with a sentence greater than that authorized by the legislature, and that in the instant case the Massachusetts statute, as interpreted by the SJC, did not authorize a consecutive sentence for murder based on felony murder and its underlying felony.
On January 14, 1981, the SJC held that Massachusetts does not permit consecutive sentencing for felony murder and its underlying felony, but concluded that no such improper consecutive sentence had been imposed here. The SJC acknowledged that the trial record did not disclose which theory In April 1981, petitioner commenced the instant action in the District of Massachusetts seeking a writ of habeas corpus. He made the same double jeopardy argument as he had in the state courts, and further contended that the SJC's failure to resolve in his favor the factual ambiguity in the record denied him due process. The district court rejected both arguments. It deferred to the SJC on the double jeopardy issue and concluded that there had been no denial of due process because it was rational for the SJC to distinguish between a conviction based on a jury verdict (where it would resolve ambiguities in the accused's favor) from a conviction based on a guilty plea (where it would not).
of murder the court relied upon when it accepted petitioner's guilty plea, but it held that there was ample evidence to support the conviction of murder based on a joint venture theory. Accordingly, the SJC held that the consecutive sentences imposed on petitioner were lawful. Richard v. Commonwealth, 1981 Mass.Adv.Sh. 127, 415 N.E.2d 201 (1981)
On the instant appeal to our Court, petitioner makes the same arguments as he did in the district court. He further contends that failure to construe his guilty plea as based on felony murder runs afoul of the due process notice requirements articulated in Henderson v. Morgan, 426 U.S. 637 (1976).
ALLEGED FACTUAL AMBIGUITY AS TO THE BASIS FOR THE PLEA OF
The main premise underlying petitioner's entire argument in our Court is that he pleaded guilty to second degree murder based on the theory of felony murder. 5 He claims that, in order to determine his state of mind for purposes of both mens rea and the plea, we must look only to his own testimony. On that hypothesis, he argues that his testimony provides only the necessary element of malice aforethought for a murder conviction based on a theory of the felony murder. He argues in the alternative that at best the record is ambiguous as to the basis for his plea of guilty to second degree murder, and that that ambiguity should have been resolved in his favor.
Under either of his alternative arguments, petitioner seeks to bring himself within the purview of several decisions of the SJC which have gleaned from the legislative history an intent to preclude consecutive sentencing for felony murder and the underlying felony. Shabazz v. Commonwealth, 387 Mass. 291, 439 N.E.2d 760 (1982); Commonwealth v. Wilson, 381 Mass. 90, 407 N.E.2d 1229 (1980); Commonwealth v. Stewart, 375 Mass. 380, 377 N.E.2d 693 (1978).
In Shabazz, the SJC vacated a life sentence for armed robbery that was to run from and after two concurrent life sentences on convictions for first degree murder. In that case, a jury had returned guilty verdicts on two first degree murder indictments without indicating whether it relied on a theory of felony murder or deliberately premeditated murder. The evidence would have supported either theory. Shabazz argued that, because the murder convictions could have rested on the felony murder theory, the from and after sentence for armed robbery was barred by the double The Commonwealth correctly points out that these cases all were concerned with jury verdicts, and that they are not applicable to a case, such as the instant one, involving a guilty plea. Indeed, the SJC, in denying petitioner's petition for writ of error in the instant case, stated:
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