Marshall v. Bristol Superior Court

• Decision Date: 23 May 2014
• Docket Number: No. 13–1965.,13–1965.
• Citation: 753 F.3d 10
• Parties: Ryan MARSHALL, Petitioner, Appellee, v. BRISTOL SUPERIOR COURT, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

753 F.3d 10

Ryan MARSHALL, Petitioner, Appellee,

v.BRISTOL SUPERIOR COURT, Respondent, Appellant.

No. 13–1965.

United States Court of Appeals, First Circuit.

May 23, 2014.

Amy L. Karangekis, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, and Kris C. Foster, Assistant Attorney General, were on brief, for appellant.

Richard J. Fallon for appellee.

Before LYNCH, Chief Judge, HOWARD and KAYATTA, Circuit Judges.

LYNCH, Chief Judge.

Petitioner Ryan Marshall was granted a writ of habeas corpus, pursuant to 18 U.S.C. § 2241, on double jeopardy grounds. The writ bars Marshall's imminent prosecution for the murder of George Carpenter pending in the Bristol County Superior Court.

Marshall was indicted in 2001 and convicted in 2006 as an accessory before the fact to Carpenter's murder. The Massachusetts Supreme Judicial Court (“SJC”) reversed that conviction in August 2010. It reasoned that although the evidence did establish Marshall's “active participation in, and presence during, the commission of the felony,” the conviction could not stand where the conduct that was charged was required to have taken place before the felony was committed. Commonwealth v. Rodriguez, 457 Mass. 461, 931 N.E.2d 20, 43 (2010).

Following the SJC's decision in Rodriguez, the Commonwealth then indicted Marshall for murder. Marshall moved to dismiss this latter indictment, arguing that the SJC's earlier reversal had been based on insufficiency of the evidence and, hence, that the Double Jeopardy Clause as incorporated against the states barred a second prosecution. In affirming the denial of his motion to dismiss, the SJC disagreed with Marshall, holding that its earlier reversal had been based on a variance between the crime charged and the crime proved at trial under state law. Marshall v. Commonwealth, 463 Mass. 529, 977 N.E.2d 40, 48 (2012). Under both state and federal law, it held that a second prosecution following a reversal based on such a variance does not give rise to a double jeopardy problem. Id.

Marshall filed a petition for habeas relief under 18 U.S.C. § 2241 seeking to block his pending prosecution. On federal habeas review, the district court granted petitioner's request for relief. Marshall v. Bristol Cnty. Superior Court, 951 F.Supp.2d 232, 236 (D.Mass.2013). The district court accepted petitioner's double jeopardy argument. Id. at 235–36. In addition, the district court held that a newly asserted and hence unexhausted “ex post facto law” argument did not preclude it from granting relief. Id. at 234 & n. 1. The Commonwealth has appealed. The issuance of the writ was stayed pending our review.

We reverse. We hold that, under Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), this court is bound by the SJC's interpretation of its earlier reversal and the requirements of Massachusetts law. Bound as we are to accept the SJC's interpretations of its own state law and its own decision in Marshall of what it held in Rodriguez, petitioner's double jeopardy argument necessarily fails. We also reject petitioner's ex post facto claim as patently without merit.

I.

The facts and background of the case are set forth in the two SJC decisions. In the early morning of February 16, 2001, the victim, George Carpenter, age 45, was socializing with friends at the home of Donna Medeiros, Marshall's mother. Rodriguez, 931 N.E.2d at 26–27. Petitioner, his girlfriend, and his three friends—Robert Tirado, Jonathan Torres, and Heather Lawrence—arrived at the house soon after.¹Id. at 27.

At some point, an argument began between Marshall, Tirado, and the victim. Id. The altercation between Tirado and the victim spilled out into the street when they left Medeiros's house. When Carpenter got into his car and tried to drive away, Tirado slashed the front driver's-side tire. Id. After driving the car a short distance, the victim got out of the vehicle and continued arguing with Tirado. Id. The violence escalated when Marshall and Torres, along with three more of their friends, arrived on the scene outside. Id. With the exception of Torres, all of the men present attacked the victim, including one who hit him with a tire iron. Id. at 27–28. Marshall kicked the victim twice and attempted to throw a trash barrel at him. Id. at 28.

The perpetrators left the victim unconscious on the street, and when police arrived they found him bloody and unconscious. Id. Carpenter died later that day as a result of acute internal hemorrhaging due to blunt force trauma. Id.

A. Trial

The prosecution chose to indict Marshall as an accessory before the fact to murder in the first degree under Mass. Gen. Laws ch. 274, § 2 (“Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.”). Rodriguez, 931 N.E.2d at 39–40. Marshall was not indicted for the murder itself. Though the indictment charged him with acts before the murder was committed, the Commonwealth proceeded at trial under an “aiding” the murder theory, not under an accessory before the fact theory. Id. at 40. At the close of the state's presentation of evidence, Marshall's counsel moved for a required finding of not guilty, arguing that no evidence had been presented that, before the beating, Marshall had in any way “counselled, hired, or otherwise procured” the commission of the felony. Id. The prosecutor agreed, but argued that there was sufficient evidence for the jury to convict on the aiding theory. Id. The trial judge, reasoning that the crime of being an accessory before the fact is “largely identical to the joint venture doctrine,” denied the motion, id., and the jury convicted in February 2006, id. at 25.

B. First SJC Decision: Commonwealth v. Rodriguez

A co-defendant, Lionel Rodriguez, and Marshall appealed to the SJC. Marshall argued that the denial of his motion was in error because there was insufficient evidence to convict him of being an accessory before the fact. Id. at 40. The SJC agreed with Marshall; it reasoned first that “the actions of one who ‘aids' and ‘accessories before the fact’ are not the same, and are separate and distinct forms of accomplice liability.” Id. Given this “separate and distinct” conclusion, the SJC reasoned, “the indictment charging Marshall improperly defined the offense on which he was tried ... [and] the [trial court] submitted the case to the jury with improper instructions, as [it] told the jury that they could convict Marshall as an accessory before the fact if he ‘aided in the commission of the murder of [the victim].’ ” Id. at 42–43. Those instructions were in error because they were not consistent with the indictment, which charged conduct that took place before the felony was committed. Id. at 43.

The SJC added that the evidence did establish Marshall's “active participation in, and presence during, the commission of the felony,” and noted that the state “should have simply added Marshall's name to that portion of the indictment alleging murder, without reference to Marshall's acting as an accessory before the fact.” ²Id. The SJC concluded that “because the evidence presented was legally insufficient to warrant a finding of Marshall's guilt as an accessory before the fact, Marshall's motion for a required finding of not guilty should have been allowed.” Id. In a footnote, the SJC expressly noted that Marshall could not be retried as an accessory before the fact. Id. at 43 n. 34.

C. Second SJC Decision: Marshall v. Commonwealth

The Commonwealth indicted Marshall again, this time charging him with murder for his involvement in the killing, pursuant to Mass. Gen. Laws ch. 265, § 1. Marshall moved to dismiss the indictment, claiming that the second prosecution was barred by double jeopardy, arguing that “murder is a form or a ‘species' of lesser included offense to accessory before the fact to murder.” Marshall, 977 N.E.2d at 41 (internal quotation marks omitted). The state trial judge (who was not the original trial judge) denied the motion, and Marshall appealed to a single justice of the SJC pursuant to Mass. Gen. Laws ch. 211, § 3. Id. at 42. The justice reserved judgment and presented the issues to the full SJC. Id.

The SJC rejected Marshall's argument and concluded that the second indictment was not barred by the Double Jeopardy Clause as incorporated. The SJC began from the proposition that “[m]urder, prosecuted on a theory of aiding and abetting, is not a lesser included offense of accessory before the fact to murder. Rather, the two are different species of the same crime.” Marshall, 977 N.E.2d at 45. The SJC rejected the portion of Rodriguez that appeared to read “aiding” the commission of a felony to be a “separate and distinct” crime from acting as an accessory before the fact.³Marshall, 977 N.E.2d at 46–47. The Marshall court reasoned that “[a]lthough grounded in the language and structure of the statute, [the Rodriguez ] construction of § 2 goes too far, and is an outlier among our recent decisions regarding the scope of accomplice (or joint venture) liability.” ⁴Id. at 45. Thus, Marshall, addressing a question of state legislative interpretation, modified Rodriguez's interpretation of Massachusetts' murder statutes.

After interpreting the Massachusetts aiding and abetting statute, the SJC turned to the double jeopardy implications of Rodriguez. The SJC acknowledged that the state cannot retry a defendant when a conviction is overturned for insufficient evidence, but a state may do so

[1] where other theories (supported by evidence at a first trial) would support a defendant's conviction in the second, see Commonwealth v. Fickett, [403 Mass. 194, 526 N.E.2d 1064, 1068 n. 4 (1988) ], or [2] where a conviction is reversed on appeal because of a variance between the indictment and the proof established...