Marshall v. Commonwealth

Decision Date15 October 2012
Docket NumberSJC–10997.
Citation977 N.E.2d 40,463 Mass. 529
PartiesRyan MARSHALL v. COMMONWEALTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Richard J. Fallon, Acton, for the defendant.

Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In February, 2006, a jury convicted Ryan Marshall (defendant) of being an accessory before the fact to murder, G.L. c. 274, § 2(§ 2), 1 on an indictment alleging that he, “before the said felony was committed, did incite, procure, aid, counsel, hire or command that” four named men murder George R. Carpenter. Although the evidence at trial was sufficient to establish that the defendant had participated in the murderous assault, we reversed his conviction in Commonwealth v. Rodriguez, 457 Mass. 461, 482–488, 931 N.E.2d 20 (2010)( Rodriguez ), because the evidence did not establish that he had done any act before the assault to counsel, hire, or otherwise procure it.

Thereafter, the Commonwealth sought and the grand jury returned an indictment charging the defendant with murder for his involvement in the killing. See G.L. c. 265, § 1. The defendant moved to dismiss the indictment, arguing that, because “murder is a form or a ‘species' of lesser included offense to accessory before the fact to murder,” a second prosecution was barred by double jeopardy.2 A judge (who was not the trial judge) denied the motion.

Pursuant to G.L. c. 211, § 3, the defendant sought relief from this order from a single justice of the county court, who reserved and reported the following questions:

(1) [Whether] where the evidence is insufficient to warrant a finding of guilt on an indictment charging a defendant with being an accessory before the fact to murder in the first degree, see G.L. c. 274, § [2], and the defendant's conviction was vacated,3 a subsequent prosecution for murder in the first degree under that statute would violate the prohibition against double jeopardy; and (2) [Whether] in the circumstances of this case, given the erroneous jury instructions and the erroneously admitted evidence, prosecution of this defendant for murder in the first degree is barred on grounds of double jeopardy?”

We answer both questions in the negative.

Background. 1. Evidence at trial. We summarize the facts from the court's opinion in Rodriguez, supra at 463–466, 931 N.E.2d 20. In the early morning hours of February 16, 2001, the victim was drinking and socializing with friends at the home of Donna Medeiros, the defendant's mother. The defendant, his girl friend, and three friends, Robert Tirado, Jonathan Torres, and Heather Lawrence, arrived at the home shortly thereafter.

At some point, an argument ensued between the victim, the defendant, and Tirado. The confrontation between the victim and Tirado continued down the street from Medeiros's home, where Tirado slashed the tire of the victim's automobile as the victim attempted to leave the gathering. The violence escalated when the defendant, Torres, and three more of the defendant's friends, Lionel Rodriguez, Orlando Badillo, and Dennis Smith, arrived at the scene. With the exception of Torres, Tirado and these men attacked the victim. One man struck the victim with a tire iron. The defendant kicked him twice and attempted to throw a trash barrel on him. The victim was rendered unconscious by the beating, and he died later that day as a result of acute massive intra-abdominal hemorrhage due to blunt force trauma.

2. Prior proceedings. For his involvement in the killing, the defendant was indicted as an accessory before the fact to murder in the first degree and was tried with Rodriguez, who had been indicted for murder in the first degree. 4 At trial, the Commonwealth proceeded on the theory that the defendant did “aid” Tirado, Badillo, Smith, and Rodriguez in committing the murder, the prosecutor having conceded that there was no evidence the defendant had counselled, hired, or otherwise procured the felony. The judge, concluding that [a]ccessory before the fact to felony is largely identical to the joint venture doctrine,” accepted this theory. Consequently, at the close of evidence, he told the jury:

“To prove the defendant guilty of being an accessory before the fact to murder, the Commonwealth must prove the following three things beyond a reasonable doubt. Element number one, that someone other than the defendant committed a felony; namely, murder. Element number two, that [the defendant] aided in the commission of the felony. And element number three, that [the defendant] had knowledge that another intended to commit the crime and shared the mental state required for the commission of the particular felony being questioned.”

With regard to the second element, the judge told the jury that “the Commonwealth must prove that [the defendant] did assist in the commission of the felony,” meaning that the defendant “intentionally participated in some meaningful and significant way by agreeing to stand by, at or near the scene, to render aid, assistance, or encouragement if such became necessary.” Aside from a brief statement at the start of the instruction, the judge did not elaborate on the temporal element inherent in the offense of being an accessory before the fact to murder.5 The jury found the defendant guilty on the indictment of being an accessory before the fact to murder in the first degree on a theory of extreme atrocity or cruelty.6

We reviewed the defendant's conviction in Rodriguez, supra at 482–487, 931 N.E.2d 20, and concluded that the language of the indictment, although prescribed by statute, see G.L. c. 277, § 79,7 improperly conflated the offense of being an accessory before the fact to a felony with that of aiding and abetting a felony, an offense also included within § 2 (see note 1, supra ). Rodriguez, supra at 482–485, 931 N.E.2d 20. That is, we construed § 2 as articulating two “separate and distinct offenses”—aiding a felony and being an accessory before the fact to a felony 8—and faulted the Commonwealth for “improperly defin[ing] the offense on which [the defendant] was tried.” Id. at 485, 486, 931 N.E.2d 20. We noted that, althoughthis error in the wording of the indictment “may have been excusable on account of adherence to the statutory form ..., the judge [also] submitted the case to the jury with improper instructions.” Id. at 486–487, 931 N.E.2d 20. As detailed above, the judge had instructed the jury that they could convict the defendant “as an accessory before the fact if he ‘aided in the commission of the murder of [the victim].’ Id. at 487, 931 N.E.2d 20. That instruction did not comport with the form of the indictment, which alleged that the defendant acted before the commission of the felony, even though it tracked the evidence at trial, which had established his “active participation in, and presence during, the commission of the felony.” Id. Consequently, we determined that the defendant's conviction of being an accessory before the fact to murder could not stand. Id.

Discussion. The defendant argues, as he did before the motion judge, that the indictment that charges him with murder in the first degree 9 violates the prohibition against double jeopardy. Specifically, he contends that murder is akin to a lesser included offense of accessory before the fact to murder 10 and, therefore, the new proceeding against him runs afoul of the familiar maxim that “a prosecution for a greater offense precludes subsequent prosecution for all its lesser included crimes.” Commonwealth v. D'Amour, 428 Mass. 725, 748, 704 N.E.2d 1166 (1999), quoting Costarelli v. Commonwealth, 374 Mass. 677, 683, 373 N.E.2d 1183 (1978). We disagree.

At its core, the prohibition against double jeopardy, which flows from the Fifth Amendment to the United States Constitution, as well as the statutory and common law of Massachusetts, provides that “a person cannot twice be put in jeopardy for the same offence.” Commonwealth v. Burke, 342 Mass. 144, 145, 172 N.E.2d 605 (1961), and cases cited. See Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (applying Federal constitutional guarantees against double jeopardy to States through Fourteenth Amendment to United States Constitution); Choy v. Commonwealth, 456 Mass. 146, 147 n. 2, 927 N.E.2d 970, cert. denied, ––– U.S. ––––, 131 S.Ct. 425, 178 L.Ed.2d 330 (2010); G.L. c. 263, § 7. This principle, however, “is not one rule but several, each applying to a different situation; and each ... marooned in a sea of exceptions.” Note, Twice in Jeopardy, 75 Yale L.J. 262, 263 (1965). Thus, the bar protects against three specific evils—“a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense,” Mahoney v. Commonwealth, 415 Mass. 278, 283, 612 N.E.2d 1175 (1993), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)—while tolerating certain conduct from the State. See, e.g., Ray v. Commonwealth, 463 Mass. 1, 3, 972 N.E.2d 421 (2012), quoting Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), and Commonwealth v. Steward, 396 Mass. 76, 78, 483 N.E.2d 1091 (1985) (“State and Federal double jeopardy protections bar, ‘as a general rule,’ retrial of a defendant whose initial trial ends over his objection and without a conviction.... However, an exception to the general rule applies where a mistrial is declared as a matter of ‘manifest necessity’ [citations omitted] ).

From this web of jurisprudence, the defendant has plucked a single strand—that pertaining to greater and lesser included offenses. He recites the governing principle accurately (the State generally is prohibited from successive prosecutions for a greater and lesser offense, see Brown v. Ohio, 432 U.S. 161, 168–169, 97...

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