Casale v. Fair, 87-1180

• Decision Date: 05 October 1987
• Docket Number: No. 87-1180,87-1180
• Parties: Thomas S. CASALE, et al., Petitioners, Appellants, v. Michael FAIR, etc., Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 386

833 F.2d 386

Thomas S. CASALE, et al., Petitioners, Appellants, v. Michael FAIR, etc., Respondent, Appellee.

No. 87-1180.

United States Court of Appeals First Circuit.

Heard Oct. 5, 1987.

Decided Nov. 18, 1987.

David Berman, with whom Berman and Moren, Lynn, Mass., were on brief, for petitioners, appellants.

Susan S. Beck, Asst. Atty. Gen., Crim. Bureau, Boston, Mass., with whom James M. Shannon, Atty. Gen., and A. John Pappalardo, Deputy Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondent, appellee.

Before CAMPBELL, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

TIMBERS, Circuit Judge:

Appellants Thomas S. Casale ("Casale") and Vincent Federico ("Federico") appeal from a judgment entered February 17, 1987 in the District of Massachusetts, John J. McNaught, District Judge, 653 F.Supp. 856, which denied their petition for a writ of habeas corpus brought by appellants pursuant to 28 U.S.C. Sec. 2254 (1982). Appellants are prisoners of the Commonwealth of Massachusetts, having been convicted of second degree murder on December 22, 1978 after a jury trial.

On the instant appeal, appellants claim, first, that the evidence was insufficient to sustain their convictions of second degree murder on a theory of joint enterprise; second, that they could not be convicted on a joint enterprise theory when they had been indicted separately; third, that the trial court erred in instructing the jury that it could judge intent from conduct and that it knew how the victim met his death; fourth, that they were denied equal protection of the law when the trial court denied their motions for directed verdicts while granting a similar motion by their codefendant; and, fifth, that they were denied effective assistance of counsel at trial.

We hold that the evidence at trial was sufficient to sustain the convictions of second degree murder on a theory of joint enterprise; that appellants waived their claims regarding the necessity for joint indictments, the jury instructions and equal protection; that appellants failed to exhaust state remedies with respect to other claims regarding the trial court's instructions on the joint venture theory and the ineffectiveness of state appellate counsel and that appellants were not denied effective assistance of counsel at their trial.

We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On the morning of November 6, 1977, Robert McFarlane, who was destined to become the victim in this case, was helping Lynne Russo load her possessions into a van parked in front of Russo's apartment on the fifth floor of No. 20 Stillman Street in Boston. Three other friends, William Hackler, James Theologus and Dominic Monforte, also assisted with the moving. During the two hours that the group ("Russo's group") spent loading the van, appellants repeatedly harassed them, blocking the doorway, swearing, spitting on the sidewalk and challenging them to fight.

At about 11:30 a.m., appellants had a conversation in the doorway of No. 18 Stillman Street. Federico then went into No. 20 Stillman Street, where he lived on the second floor. Casale left and was later seen returning with Joseph Bruno and two unidentified persons. This group of four ("Casale's group") was seen moving quickly, two by two, in a "strong steady march" toward Stillman Street. When this group reached the corner of Stillman and North Margin Streets, Federico quickly emerged from his building and joined the group, which then passed by the van. Casale's group paused in front of the van and then went into a playground across the street. At this point, which was about 12:30 p.m., McFarlane and his friends were near the van and Russo was upstairs. Five shots rang out from the playground area. McFarlane fell to the ground, saying, "They got me. They got me." McFarlane later died of a gunshot wound.

Two of McFarlane's friends saw Casale running in the playground and pursued him. When Russo heard the shots she looked out her fifth floor window. She saw Casale and Bruno running and Federico standing near an opening in the playground fence. During the loading of the van and at the time of the shooting, neither Russo nor anyone in her group had seen any other people in the area aside from the five in Casale's group.

A short time later, two police officers responded to a report of the shooting. They noticed Casale running down the street. By the time they were able to catch up with him, Casale had stopped on the sidewalk. When they pulled alongside him, however, and one officer began to get out of the car, Casale ran down another street. Other officers found Bruno and Federico in a bowling alley.

The evidence indicated that the person who shot McFarlane had fired the shots from the gap in the playground fence. Specifically, ballistics analysis showed that a bullet that had lodged in a sign on Stillman Street was fired from the gap in the fence. Appellants stipulated that the bullet found in the sign and a bullet found under McFarlane's body were fired from the same gun. Thus, it was likely that the bullet found under McFarlane's body was fired from the gap in the fence.

On April 20, 1978, Casale, Federico and Bruno were indicted in the Suffolk County Superior Court for the murder of McFarlane. After denial of their motions for a directed verdict, the three defendants were found guilty on December 22, 1978. All three renewed their motions after the verdict. The trial court granted Bruno's motion but denied those of Federico and Casale. The Supreme Judicial Court affirmed appellants' convictions on July 17, 1980. Commonwealth v. Casale, 381 Mass. 167, 408 N.E.2d 841 (1980).

On March 18, 1982, appellants moved for a new trial. They asserted ten grounds, including three they had not previously raised. This motion did not include grounds based on error in the jury instructions on joint enterprise or ineffectiveness of appellate counsel. The trial court denied this motion and appellants appealed. The Appeals Court affirmed. Commonwealth v. Casale, 16 Mass.App.Ct. 1103 (1983). The Supreme Judicial Court denied appellants' application for further appellate review.

On August 20, 1985, appellants filed the instant habeas petition. The district court required appellants to amend their petition to delete several claims for failure to exhaust state remedies, including claims regarding instructions on joint enterprise and ineffectiveness of state appellate counsel. Appellees challenged four of the claims in the petition on the ground that appellants had waived them. The district court denied the petition on February 17, 1987. This appeal followed.

For the reasons stated below, we affirm.

II.

The standard applied in a habeas proceeding challenging the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution," a rational jury "could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case the crime charged was murder in the second degree. The prosecution relied on a theory of joint enterprise. Thus, the issue presented is whether a rational jury could have found that the prosecution had met the standards for second degree murder and joint enterprise liability. We are satisfied that a rational jury easily could have so found.

Second degree murder in Massachusetts is "an unlawful killing with malice aforethought." Commonwealth v. Casale, supra, 381 Mass. at 171, 408 N.E.2d at 844. "Malice" includes committing an act that creates "a plain and strong likelihood that death or grievous harm will follow." Commonwealth v. Lowe, 391 Mass. 97, 107, 461 N.E.2d 192, 198-99, cert. denied, 469 U.S. 840 (1984).

Moreover, under the Massachusetts theory of joint enterprise, one may be punished in the same manner as a principal if one "aids in the commission of a felony." Mass.Gen.L.Ann. ch. 274, Sec. 2 (West Supp.1987). Although mere presence at the scene of the crime and knowledge of the intended act is insufficient, Commonwealth v. Soares, 377 Mass. 461, 471, 387 N.E.2d 499, 507, cert. denied, 444 U.S. 881 (1979), one may be found guilty as an aider if he, "by agreement, is in a position to render aid to the principal offender, even if he does not participate in the actual perpetration of the crime...." Id. at 471-72, 387 N.E.2d at 507. The jury may infer an agreement from the aider's actions. Commonwealth v. Whitehead, 379 Mass. 640, 652, 400 N.E.2d 821, 832 (1980). While the aider must share the principal's intent, Commonwealth v. White, 392 Mass. 282, 289, 467 N.E.2d 79, 83-84 (1984), a jury presumably may infer that intent from the aider's actions, just as it may infer the principal's intent. Commonwealth v. Ferguson, 365 Mass. 1, 3, 309 N.E.2d 182, 186-87 (1974).

Under these principles, a rational jury could have drawn the inferences necessary to find that appellants had participated in a joint enterprise to commit second degree murder. Such a jury could have begun the decision-making process by considering the facts that someone shot McFarlane; that no other persons were seen near the scene at the time of the shooting; and that Casale was seen running from the scene. From these facts, a jury could have inferred that someone in Casale's group pulled the trigger and that someone in Casale's group thereby committed an act that created a "strong likelihood that death or grievous harm" would follow--i.e., an act that constituted second degree murder.

Even assuming, moreover, that Casale or Federico did not themselves pull the trigger, a rational jury could have inferred from their actions that they intentionally became part of a joint enterprise to shoot McFarlane. Such actions would include particularly Casale's and Federico's prior harassment of Russo's group; their subsequent meeting in the doorway of...