Citation Numbers: 463 Mass. 529
Judges: Cordy
Filed Date: 10/15/2012
Status: Precedential
Modified Date: 6/25/2022
In February, 2006, a jury convicted Ryan Marshall (defendant) of being an accessory before the fact to murder, G. L. c. 274, § 2 (§ 2),
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.
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. In the early morning hours of February 16, 2001, the victim was drinking and socializing with friends at the home of Donna Me-deiros, the defendant’s mother. The defendant, his girl friend,
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.
“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,*532 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.
We reviewed the defendant’s conviction in Rodriguez, supra at 482-487, and concluded that the language of the indictment, although prescribed by statute, see G. L. c. 277, § 79,
Discussion. The defendant argues, as he did before the motion judge, that the indictment that charges him with murder in the first degree
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 (1961), and cases cited. See Benton v. Maryland, 395 U.S. 784, 794 (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, cert. denied, 131 S. Ct. 425 (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 (1993), citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969) — while tolerating certain conduct from the State. See, e.g., Ray v. Commonwealth, ante 1, 3 (2012), quoting Arizona v. Washington, 434 U.S. 497, 505 (1978), and Commonwealth v. Steward, 396 Mass. 76, 78 (1995) (“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 [1977]; Edge v. Commonwealth, 451 Mass. 74, 75-76 [2008]), and applies it creatively. But his presentation is ultimately unpersuasive. Murder, prosecuted on a theory of aiding and abetting, is not a lesser included offense of accessory
To elucidate this point, we revisit the Rodriguez case, where we concluded that the actions of one who “aids” are different from the actions of “accessories before the fact,” and that the different acts constitute “separate and distinct” offenses. Id. at 484-486 & n.31. Although grounded in the language and structure of the statute, this construction of § 2 goes too far, and is an outlier among our recent decisions regarding the scope of accomplice (or joint venture) liability. That is, although we drove a theoretical wedge between two forms of accomplice liability in Rodriguez, we have renounced elsewhere such “false distinction[s]” that long complicated the doctrine, see Commonwealth v. Zanetti, 454 Mass. 449, 464 (2009) (Zanetti), and put forth instead a practical framework grounded in its “essential elements” of knowing participation and shared criminal intent. Id. at 467. See, e.g., Commonwealth v. Ortiz, 424 Mass. 853, 856-857 (1997) (Ortiz). We affirm these prior holdings, and reconsider the relationship between the charge of murder and that of being an accessory before the fact to murder in light of them.
We turn to our decision in Ortiz, where we reviewed the common-law origins of accomplice liability, as well as the statutory interventions brought by § 2 and its counterpart, G. L. c. 274, § 3 (§ 3).
The import of this statement comes into sharper focus when viewed alongside our 2009 decision in the Zanetti case. There, we reformulated the jury instructions governing accomplice liability, formally dispensing with the vocabulary of “joint venture” (which adhered to the classifications described above) in favor of the language of “aiding and abetting” (which focused on the essence of the joint venture allegation, knowing participation in the criminal offense). Id. at 467-468. As a result, we crafted a statement of law that hewed more closely to the framework described in the Ortiz case: whether cast as a principal or accessory in the past, a defendant may be held liable for a crime if “the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Zanetti, supra at 468. Drawing from the substantive law of accomplice liability, we further clarified the scope of this intentional participation in “[a]n appropriate jury instruction”:
“Such participation may take any of several forms. It may take the form of personally committing the acts that constitute the crime, or of aiding or assisting another in those acts. It may take the form of asking or encouraging another person to commit the crime, or helping to plan the commission of the crime. Alternatively, it may take the form of agreeing to stand by at, or near, the scene of the crime to act as a lookout, or to provide aid or assistance in committing the crime, or in escaping, if such help becomes necessary.”
Id. at 470 (Appendix). Thus, as this instruction recognizes, with §§ 2 and 3 in place, a wide range of conduct underlying a
It is this last point that controls the case before us. Whether the defendant engages in conduct before the commission of the victim’s murder to ensure its accomplishment, aids in its commission by others, or commits the murderous assault himself, he is liable for murder and, if convicted, will be so punished. We cannot say, then, that each is a wholly independent theory of criminal liability. See Commonwealth v. Santos, 440 Mass. 281, 290 (2003), overruled on other grounds, Commonwealth v. Anderson, 461 Mass. 616, 633-634 (2012) (“While we sometimes use the term ‘theory’ of principal liability or ‘theory’ of joint venture, those are not alternate, differing ‘theories’ of the crime that are to be subjected to the specific unanimity and verdict slip requirements . . .”). Rather, we recognize the interrelationship among them, and conceptualize them as different routes to the same end: criminal liability as a knowing participant in a crime (here, murder).
With this framework in mind, we return to the potential double jeopardy implications of the second indictment brought against
This “exception” to the double jeopardy bar is not without its own exceptions. The State, for example, generally cannot retry a defendant “when an appellate court overturns a conviction because of insufficient evidence.” K.B. Smith, Criminal Practice and Procedure § 24.57, at 393 (3d ed. 2007). But, it may do so 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, 199 n.4 (1988), or where a conviction is reversed on appeal because of a variance between the indictment and the proof established at trial. See Commonwealth v. Ohanian, 373 Mass. 839, 844 (1977), citing
We are of the view that the present case falls within the boundaries of these latter two categories. “In general, a crime must be proved as charged and must be charged as proved.” K.B. Smith, Criminal Practice and Procedure, supra at § 15.40, at 872. Here, however, the indictment specifically charged the defendant with engaging in conduct “before the said [murder] was committed” (emphasis added), while the proof at trial established that he joined in the attack by kicking the victim, and the judge’s instructions directed the jury to convict the defendant if they found that he had “intentionally participated” in the murderous assault. Although the proof of liability at trial, and the jury instructions that accompanied it, would have sufficed if the defendant had been indicted simply for the murder itself, they were at variance with the wording of the indictment. Although we did not employ this term specifically, we essentially concluded in Rodriguez, supra at 487, that such a variance was fatal: the defendant was convicted of a crime for which he had not been indicted. See, e.g., Commonwealth v. Ohanian, supra at 843; Commonwealth v. Pearson, 77 Mass. App. Ct. 95, 101-102 (2010). Our ruling on the defendant’s appeal in the Rodriguez case, then, did not erect a double jeopardy bar to subsequent prosecution for the crime proved at the first trial, and the Commonwealth is entitled to try him again under an appropriate charging instrument. See United States v. Ball, supra; Hicks v. Commonwealth, supra.
Although the preceding discussion suffices to address the first reported question, we briefly touch on the second. The single justice asks whether, “in the circumstances of this case, given the erroneous jury instructions and the erroneously admitted evidence [and testimony of the medical examiner], prosecution of this defendant for murder in the first degree is barred on grounds of double jeopardy.” The defendant argues that, in
Conclusion. For the reasons discussed, we answer both of the reported questions in the negative. The matter is remanded to the single justice for further proceedings consistent with this opinion.
So ordered.
General Laws c. 274, § 2, provides: “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.”
The defendant also alleged that the successive and multiple prosecutions constituted harassment by the Commonwealth because the original charge of accessory before the fact was sought to eliminate the possibility that he would receive a lesser manslaughter verdict on a murder indictment.
In Commonwealth v. Rodriguez, 457 Mass. 461, 487-488 & n.34 (2010) (Rodriguez), we reversed, rather than vacated, the defendant’s conviction because he could not be retried as an accessory before the fact. The indictment was dismissed by the Superior Court.
As we explained in Rodriguez, supra at 462 n.4, Robert Tirado, Orlando Badillo, and Dennis Smith also were charged with murder in the first degree for their involvement in the killing, while Jonathan Torres (like the defendant) was indicted as an accessory before the fact to murder. The cases were paired for trial: “Tirado and Torres were tried first; Tirado was convicted of murder in the second degree, and Torres was acquitted. After being tried together, both Badillo and Smith were convicted of murder in the second degree.” Id.
The judge told the jury: “The phrase ‘before the fact’ refers to time. The defendant... is accused of having been an accessory to a felony before that felony was committed.”
The jury also found Lionel Rodriguez, with whom the defendant had been tried, guilty of murder in the first degree, on a theory of extreme atrocity or cruelty. On appeal, we reduced this conviction to murder in the second degree because, although other properly admitted evidence established that Rodriguez had committed an unlawful killing, certain medical evidence and testimony pertinent to the theory of extreme atrocity or cruelty was erroneously admitted. Rodriguez, supra at 475-482.
General Laws c. 277, § 79, provides in relevant part that the annexed form of an indictment alleging “that A.B., before the said felony was committed, did incite, procure, aid, counsel, hire or command the said (principal) the said felony to do and commit,” shall be “sufficient” to allege the crime of accessory before the fact. See Commonwealth v. Daughtry, 417 Mass. 136, 141-142 n.3 (1994).
Under this rubric, the “aiding” prong (colloquially, “aiding and abetting”) captures conduct that constitutes actual assistance in the commission of the felony, and requires some degree of knowing participation. Rodriguez, supra at 484. In contrast, the “accessory” prong encompasses participation in an act “that led up to or in some way contributed to the occurrence of the felony,” but that occurred prior to the commission of the felony (i.e., “counselling, hiring or otherwise procuring” it). Id.
This indictment alleges that the defendant, “on or about February 16, 2001 . . . did assault and beat George Carpenter with intent to murder him, and by such assault and beating did kill and murder the said George Carpenter.” Although this indictment does not state explicitly that the Commonwealth will proceed on an aiding and abetting theory against the defendant, statements made in the Commonwealth’s brief, as well as the approach adopted and the evidence presented in the first trial, plainly support the conclusion that it will.
The defendant reaches this conclusion by arguing that, under the statutory scheme, “everyone guilty as an accessory before the fact is also guilty of the felony, but not vice versa .... Put another way . . . murder is ‘necessarily accomplished’ on commission of accessory before the fact to murder.”
General Laws c. 274, § 3, provides in pertinent part: “Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction; or may be indicted and convicted of the substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and in the last mentioned case may be punished in the same manner as if convicted of being an accessory before the fact. . . .”
This outcome is not surprising, as both prongs of G. L. c. 274, § 2, had long been viewed as a unified theory of joint venture liability. See Commonwealth v. Ortiz, 424 Mass. 853, 856 (1997); Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979) (“The theory underlying joint enterprise is that one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal”). See also Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (shift to language of aiding and abetting “does not enlarge or diminish the scope of existing joint venture liability”).
The United States Supreme Court has explained the origins of this rule succinctly: “At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances. As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had ‘waived’ his plea of former jeopardy by asking that the conviction be set aside. Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final. But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense has been set aside on appeal.” Green v. United States, 355 U.S. 184, 189 (1957), citing United States v. Ball, 163 U.S. 662 (1896).
As G. L. c. 274, § 3, expressly provides, one charged with accessory before the fact may be “indicted and convicted of the substantive felony,” here, murder.