Ortiz v. Dubois
| Decision Date | 03 November 1993 |
| Docket Number | No. 93-1656,93-1656 |
| Citation | 19 F.3d 708 |
| Parties | Juan R. ORTIZ, Petitioner, Appellant, v. Larry DUBOIS, Respondent, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John M. Thompson, with whom Linda J. Thompson, Springfield, MA, was on brief, for appellant.
Nancy W. Geary, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief for appellee.
Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
This is an appeal from the denial of a habeas petition filed by Juan Ortiz challenging his Massachusetts felony-murder conviction. Appellant argues that his right to due process of law under the Fourteenth Amendment was violated because: (1) the jury was not instructed to find all of the essential elements of felony-murder beyond a reasonable doubt; (2) the Massachusetts Supreme Judicial Court (SJC) affirmed his felony-murder conviction applying a legal theory not presented to the jury; and (3) there was insufficient evidence to support his felony-murder conviction under the Commonwealth's theory of guilt. The district court denied the petition. We affirm, but for reasons substantially different than those expressed by the court below.
We commence with a recitation of the pertinent facts. Appellant's convictions are based on the events of November 12, 1985. That evening, appellant and his brother, Eduardo "Crazy Eddie" Ortiz, left their father's apartment at 8 Stebbins Street in Springfield, Massachusetts to search for Jose Rodriguez. Apparently there was an ongoing dispute between Eddie and various members of the Rodriguez family. In addition, there was evidence that several members of that family, one who was believed to be Jose, paid a visit to the Stebbins Street apartment on the day in question looking for Eddie. One of the visitors allegedly carried a gun.
Prior to departing with appellant, Eddie procured a .357 Magnum and ammunition from his brother-in-law, which he placed in his pants pocket. There was evidence to the effect that appellant agreed to accompany Eddie in order to provide "back up." On the other hand, appellant introduced evidence that he vehemently opposed his brother's mission, and went along in order to serve as a voice of reason.
With Eddie behind the wheel and appellant at his side, the two drove off in search of their prey. En route, Eddie pulled over to the curb, removed the gun and ammunition from his pocket, loaded the gun, and placed it between himself and his brother. After circling the intended victim's block several times, the brothers were unable to locate him, and returned to their father's apartment. Upon their arrival in front of 8 Stebbins Street, a police cruiser manned by two officers pulled up behind them. The driver of the cruiser got out and approached the driver's side of the Ortiz vehicle. As the officer attempted to open the driver's side door, he was shot in the face and killed by Eddie. By that time the second officer was trying to pull appellant out of the passenger side door. Eddie shot and killed him as well.
There was evidence that, as the officers approached the vehicle, both appellant and his brother reached for the gun, but Eddie got to it first. After the shooting, both fled the scene. Appellant was apprehended shortly thereafter. Eddie committed suicide before he could be taken into custody.
On November 22, 1985 a five count indictment was returned against appellant. He was charged with two counts of second degree murder, one for the death of each officer, unlawful carrying of a firearm under his control in a motor vehicle, and attempted assault and battery with a dangerous weapon, all felonies. 1 The Commonwealth informed appellant that, with respect to the murder indictment, it would be proceeding on a theory of felony-murder. It designated the latter two felonies as predicates for the felony-murder charge.
Appellant's trial commenced in January 1987. At the close of the Commonwealth's case and again at the close of all the evidence Subsequent to the close of the evidence but before the judge instructed the jury, the Commonwealth informed the court that, in connection with the unlawful carrying charge, it would not be proceeding on a joint venture theory, but rather on a basis that appellant "jointly possessed" the gun with his brother. As a result, the judge did not instruct the jury on joint venture principles as to the unlawful carrying charge. 2
appellant unsuccessfully moved for findings of not guilty on all counts. The jury found appellant guilty on all counts. On attempted assault and battery by means of a dangerous weapon, the jury convicted appellant of being a "joint venturer" with his brother. With regard to the unlawful carrying charge, the jury found that appellant "jointly possessed" the gun with his brother. By special verdict, the jury found the unlawful carrying charge to be the sole predicate felony underlying the felony-murder convictions.
After the jury rendered its verdict, appellant renewed his motion for findings of not guilty. The motion was denied in its entirety, and appellant appealed. On its own initiative, the SJC removed the case from the Appeals Court. The SJC affirmed the convictions for felony-murder and unlawfully carrying a firearm in a vehicle. Finding no overt act, however, it reversed the conviction for attempted assault and battery by means of a dangerous weapon.
On direct appeal, appellant alleged, inter alia, that the evidence was insufficient to support his felony-murder conviction, and that the jury instructions on this charge were defective. The SJC rejected appellant's sufficiency claim but indicated that the jury had not been correctly instructed. Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698, 701-02 (1990). Because appellant had not made a timely objection to the jury charge, however, the SJC did not review the error for constitutional infirmity, but instead looked to see whether the error created a substantial likelihood of a miscarriage of justice. Id. at 701. The court held that it did not. Id. at 702.
Appellant then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. The district court ruled that the jury instructions on felony-murder were correct and that the evidence supporting this charge was constitutionally sufficient. This appeal ensued.
Appellant's first argument is that his right to due process was violated because the jury was not properly instructed on the elements of felony-murder under Massachusetts law, and therefore did not find every element of the offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Commonwealth steadfastly maintains that there was no error in the jury instructions.
On the charge of felony-murder the trial court instructed the jury as follows:
The felony-murder rule, where applicable, is based on the theory that the intent to commit the underlying, independent felony is equivalent to the malice aforethought necessary for a murder conviction.
In order to find the Defendant guilty of second degree murder under the felony murder rule, the Commonwealth must prove the following three elements beyond a reasonable doubt.
First, that there was an unlawful killing.
Second, that the homicide was committed in the course of a felony or attempted felony which felony was independent of the homicide.
Third, that under the circumstances of this case the Defendant committed the felony or attempted felony with a conscious disregard for human life.
Although the judge elaborated more fully on the second element, he incorporated by reference his previous definitions of the two possible predicate felonies: attempted assault and battery by means of a dangerous weapon and unlawful carrying of a firearm in a motor vehicle. 3
On the unlawful carrying charge the judge instructed the jury that the prosecution needed to prove three elements beyond a reasonable doubt:
First, that the Defendant, Juan Ortiz, carried a firearm on his person or under his control in a motor vehicle.
Second, that what was carried or that which was under the Defendant's control met the definition of firearm under our law....
And third, that the Defendant knew that he was carrying the firearm or that he had the firearm under his control in a vehicle.
. . . . .
Carrying occurs when the Defendant knowingly has more than momentary possession or control of a working firearm and moves it from one place to another.
. . . . .
The control exercised by the Defendant over the area where the weapon is found need not have been exclusive. A Defendant may have control of a weapon jointly with another if he is in a position to exercise dominion or control over the weapon and that [sic] he intends to do so.
With regard to the element of control, the Commonwealth must prove beyond a reasonable doubt that Juan Ortiz knew of the presence and the location of the weapon in the motor vehicle, that Juan Ortiz was in a position to be able to exercise dominion and control over the weapon together with an intent to exercise such dominion and control.
The judge then explained what the prosecution needed to prove in order to convict appellant of unlawful carrying, with specific reference to the evidence presented at trial:
[O]ne, that the Defendant, Juan Ortiz, was a passenger in the AMC Hornet driven by Eduardo when they left 8 Stebbins Street and at the time they were apprehended by the two police officers on their return.
And, two, that the firearm was in the AMC Hornet and that Juan Ortiz knew that it was there.
And, three, that Juan Ortiz had joint dominion and control of the firearm with Eduardo and intended to exercise dominion and control.
Under the felony-murder rule in Massachusetts, " 'a homicide committed during the commission...
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