
USCA1 Opinion

	




          March 9, 1995     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1626                                    GARY STEWART,                                Petitioner, Appellee,                                          v.                                   WILLIAM COALTER,                                Respondent, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of  this Court,  issued on  February 28,  1995,          should be amended as follows:               On cover sheet, under  counsel listings, "petitioner" should          be "respondent" and "respondent" should be "petitioner".               On page 7, line 5 under "II.", remove "the" before "fact".               On page 18, line  6 of 2nd full paragraph,  replace "Good's"          with "Stewart's".          March 7, 1995     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1626                                    GARY STEWART,                                Petitioner, Appellee,                                          v.                                   WILLIAM COALTER,                                Respondent, Appellant.                                 ____________________                                     ERRATA SHEET               The  opinion of  this Court,  issued  on February  28, 1995,          should be amended as follows:               On page 2, lines  7-10, the final sentence of  the paragraph          should read:  "That ten very able judges before us have disagreed          so sharply over  the evidence is a  measure of the difficulty  of          this case."               On page 12, lines  1-4, the first sentence of  the paragraph          should read:  "Why is it that nine judges (including the majority          on this  panel) think that  the stated facts  permit a clear  and          compelling   inference  of  Stewart's   guilt  and   four  others          (including  our  dissenting colleague)  think  it  plain that  an          acquittal should have been ordered?"               On page 12, line 9, the word "eleven" should be "thirteen."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1626                                    GARY STEWART,                                Petitioner, Appellee,                                          v.                                   WILLIAM COALTER,                                Respondent, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            William  J. Meade,  Assistant Attorney  General, Criminal  Bureau,            _________________        with  whom Scott  Harshbarger,  Attorney  General,  was on  brief  for                   __________________        respondent.            Patricia  A.  O'Neill,  Committee  for  Public  Counsel  Services,            _____________________        Public Counsel Division, for petitioner.                                 ____________________                                  February 28, 1995                                 ____________________                 BOUDIN, Circuit Judge.  Gary Stewart  was convicted by a                         _____________            jury in Massachusetts Superior Court of second degree murder.            After  the  Supreme  Judicial  Court  upheld  the conviction,            Stewart filed a habeas corpus petition and the district court            ultimately granted the writ, holding that the evidence at the            state trial  was inadequate to  permit a  reasonable jury  to            convict.   That ten very able judges before us have disagreed            so sharply over the  evidence is a measure of  the difficulty            of this case.                                          I.                 Stewart  was  indicted  by  a Middlesex  grand  jury  on            August 1, 1986, and  charged with the first  degree murder of            Robert  Perry.   He was tried  by a  jury in  a trial lasting            several  days beginning on March  8, 1988.   From the outset,            the Commonwealth's theory was that the actual murder of Perry            had  been committed by John Good who was tried separately and            convicted of first degree murder.  See  Commonwealth v. Good,                                               ___  ____________    ____            568 N.E. 2d  1127 (Mass.  1991).  The  evidence in  Stewart's            trial, taken  most favorably to the  Commonwealth, showed the            following.                 At  about 1 a.m., on  July 27, 1986--the  day of Perry's            murder and  about 11  hours before that  event--Stewart, Good            and  a third  man  were  seen  together  entering  a  bar  on            Cambridge Street  in Cambridge,  Massachusetts.  The  bar was            located about four blocks east of the Cambridge City Hospital                                         -2-                                         -2-            and  about five blocks west of the Harrington School, both of            which are also on Cambridge Street.                 At about 7:50  a.m. that same morning,  Stewart was seen            driving west on Cambridge  Street near the Harrington School.            The   car  was   a  yellow   or  off-white   Pontiac  bearing            Massachusetts  license plate 104-MND.  Good  was in the front            passenger seat and a third  man was in the rear seat.  As the            car passed  a cat sleeping on a car hood on the opposite side            of the street, Stewart made  a U-turn and drove back east  on            Cambridge Street.  Good  then pointed a black handgun  out of            the passenger side window and shot the cat twice, killing it.            The car then drove away with the passengers laughing.                 At about 12 noon on the same day, Stewart was sitting in            the  same car, which was parked on Maple Avenue in Cambridge.            Maple  Avenue  is  a  one-way  street  that  runs south  from            Cambridge Street  commencing just east of  the Cambridge City            Hospital.   The car was  parked several car  lengths south of            the  intersection  with Cambridge  Street.   Fifteen  minutes            earlier,  at about 11:45 a.m., Perry had told his former wife            that he  would be  walking west along  Cambridge Street  from            Inman  Square, which  is on  Cambridge Street  several blocks            east of the hospital.                    At  about noon--this is  inference but amply supported--            Good shot Perry  three times  with a .38  caliber handgun  on            Cambridge Street  just west  of the intersection  with Maple;                                         -3-                                         -3-            one of the shots pierced Perry's heart, another his head, and            he  was killed.   Immediately  afterward, Good,  carrying the            handgun,  ran diagonally  down  Maple Avenue  to the  Pontiac            parked on the  east side of  the street.  Stewart  then drove            the   car  south   down   Maple   Avenue,   accelerating   to            approximately 45 miles  per hour.1   A few  blocks later,  at            the  intersection of Harvard and  Dana Streets, Stewart ran a            stop  sign and flashing  red light  and crashed  into another            car.                 Good exited from the Pontiac, told Stewart, "I'm getting            out of  here," and quickly walked  away.  Stewart got  out of            the  car and leaned against the  door.  When the police came,            Stewart  said  to one  of  the policemen,  "It's  an ordinary            accident.   I was trying to cross Harvard Street and continue            on Dana when this car to the left of me came along and struck            me."   To another officer Stewart said: "What's the big deal?            This  is only an accident.   I'm the only one.   I'm the only            one in  the car."   In the Pontiac  the police found  a brown            paper  bag  on  the floor  in  front  of  the passenger  seat            containing  several live  rounds of  .38 ammunition  of types            similar to that used to kill Perry.                 This is  the heart of the evidence  offered at Stewart's            trial.   There was one eye  witness to the event  at the bar;                                            ____________________                 1See  Mass. Gen. L. ch.  90,   17  (establishing a speed                  ___            limit of 30 miles per hour for streets like Maple).                                         -4-                                         -4-            another eye witness who saw the incident involving the cat; a            third eye witness who saw Good running to the car and Stewart            driving  away  after the  shots; and  a  fourth who  saw Good            looking  out the  car window  as the  car drove  rapidly down            Maple Avenue.  Several police officers and several passengers            from the other  car in the crash  testified to events at  the            crash  scene.   There  was no  evidence  of motive.   Stewart            offered  relatively  little evidence  at  trial  and did  not            testify.                 The   trial   judge   charged   the   jury   that  under            Massachusetts law Stewart  could be convicted of murder  on a            "joint venture" theory if he aided in the crime and shared an            intent  to murder.  For  first degree murder,  said the trial            judge, the intent required included both premeditation and an            intent to  kill  or  do  serious injury;  for  second  degree            murder, premeditation was unnecessary.  The  jury deliberated            for three  hours  and returned  a  verdict of  second  degree            murder.  Afterwards, the  trial judge indicated that a  first            degree murder conviction might have been expected.                 On  appeal,   Stewart  argued  that  the   evidence  was            inadequate for a reasonable jury to find that he had known in            advance of Good's intent to commit murder.  The Massachusetts            Appeals Court, by  a two-to-one vote, agreed  and ordered the            entry  of  judgment  in  Stewart's favor.    Commonwealth  v.                                                         ____________            Stewart, 571  N.E.2d  43  (1991).   On  further  review,  the            _______                                         -5-                                         -5-            Supreme  Judicial  Court reinstated  the guilty  verdict, all            five  justices agreeing  that  the evidence  was adequate  to            allow the jury to  conclude "that Good planned in  advance to            kill  Perry  and  that  [Stewart]  kn[ew]  of  this  plan and            intended to aid Good in committing the murder."  Commonwealth                                                             ____________            v. Stewart, 582 N.E. 514, 518 n.3 (1991).               _______                      From all the Commonwealth's evidence, the jury                 reasonably could  have inferred that  [Stewart] and                 Good had been driving  up and down Cambridge Street                 looking  for Perry so Good  could shoot him;  . . .                 and  that [Stewart] deliberately  parked on  a side                 street near Cambridge Street, and around the corner                 from  where  Perry was  soon to  pass, in  order to                 facilitate a speedy escape after the murder. .  . .                 .   [and]  that  [Stewart's] intent  to assist  was                 further shown by evidence that Good ran directly to                 [Stewart's]  automobile  after  the shooting,  that                 without any hesitation  or conversation,  [Stewart]                 immediately pulled away and sped up the street at a                 high rate of speed; and that [Stewart] subsequently                 covered Good's escape by lying to the police.            582 N.E.2d at 518.                 Stewart then  began  the present  habeas  proceeding  in            federal district court.  28 U.S.C.    2254.  There, he argued            that a constitutional violation had occurred because upon the            record evidence adduced at the state  trial no rational trier            of fact  could have  found proof beyond  a reasonable  doubt.            Jackson  v. Virginia, 443 U.S. 307, 324 (1979).  The district            _______     ________            court reviewed  the state trial record, took  the same "view"            of  the scene  at Cambridge  Street that  the trial  jury had            taken, considered  the briefs and  heard oral  argument.   On            June 6, 1994, the district court granted the writ and ordered                                         -6-                                         -6-            Stewart's  release  after  a   brief  period  to  permit  the            Commonwealth to seek a stay.                 The district court said that--contrary to the  inference            drawn by the  Supreme Judicial Court--there  was insufficient            evidence that  Stewart had been  parked on Maple  Avenue with            the  knowledge that  Perry  was soon  to  pass nearby  or  to            facilitate a  speedy  escape  after Good  killed  him.    The            district court also said that the testimony did not show that            the car  moved instantly upon  Good's return or  that Stewart            and  Good did not converse  at least briefly.   At most, said            the district judge,  Stewart might have been convicted  as an            accessory to murder after the fact, a lesser crime with which            he was never charged and could not now be because the statute            of limitations had  run.  The Commonwealth  then appealed and            we stayed the judgment pending review.                                         II.                 The district court and the parties do not greatly differ            as to  the applicable  legal standard.    Under Jackson,  the                                                            _______            question that the habeas court must answer is "whether, after            viewing the  evidence  in the  light  most favorable  to  the            prosecution,  any rational  trier  of fact  could have  found                          ___            evidence sufficient  to prove  the essential elements  of the            crime beyond  a reasonable doubt."   443  U.S. at  319.   The            Commonwealth stresses that the habeas judge can only consider            the rationality of the verdict and is not to make  his or her                                         -7-                                         -7-            own evaluation of guilt  or innocence.  But  the Commonwealth            does  not dispute Stewart's claim that the habeas court is to            apply the quoted standard independently and without otherwise            deferring to the state courts.                 We are not so  sure that this standard does  reflect the            current thinking of the  Supreme Court.  On the issue  of the            proper constitutional standard,  Jackson was a  five-to-three                                             _______            decision; every member of the  Jackson majority is gone  from                                           _______            the Court; and the concurring trio--Justice Stevens joined by            Chief  Justice Burger  and  Justice Rehnquist--argued  for  a            standard  that  asked  whether  there was  some  evidence  to                                                       ____            support the  disputed finding.  Further,  since both opinions            in Jackson held  that the evidence  was adequate to  convict,               _______            the choice between  the two calibrations of  the standard did            not matter in that case.                 At  first blush  it  may appear  startling that  federal            judges should  effectively  substitute themselves  for  state            judges  in  deciding  whether  a  judgment  of  acquittal  is            warranted  in  a state  criminal  case for  lack  of adequate            evidence.   No one suggests that federal judges should review            ordinary state court rulings on evidence or procedure under a            de  novo standard.   And  if one  looks to  core due  process            ________            principles,  see  Rochin v.  California,  342  U.S. 165,  172                         ___  ______     __________            (1952),  a conviction  on  no evidence  could well  shock the                                       __            average  conscience;  but some  might  find nothing  shocking                                         -8-                                         -8-            about a simple disagreement  between federal and state judges            on how far to stretch an inference.                 Neither of  the two sequels to  Jackson is illuminating.                                                 _______            Wright  v. West, 112 S. Ct. 2482 (1992), involved a fractured            ______     ____            Court with  no majority opinion;  and in Herrara  v. Collins,                                                     _______     _______            113  S. Ct. 853 (1993), the majority opinion by Chief Justice            Rehnquist capsulized  Jackson solely in order  to distinguish                                  _______            it.  On a more general plane, the Court's narrowing of habeas            in the last decade is widely acknowledged.  At the same time,            the Court has not formally retreated  its prior position that            in habeas proceedings, federal courts--when they do reach the            merits--normally make independent decisions on constitutional            issues.  Miller v. Fenton, 474 U.S. 104, 112 (1985).                     ______    ______                 We are  not certain how  the Supreme Court  will resolve            the             matter.   The majority's statement in  Jackson represents the                                                   _______            pole  most favorable to defendants;  at the other  end of the            spectrum lies  the possibility that the Court might adopt the            "some evidence" formulation of  the Jackson concurrence  or--                                                _______            pretty  much the same thing under a different label--a notion            of limited deference to state  tribunals.  Possibly, even the            Supreme Court  does not yet know  how it would handle  a case            like ours that is so close that the precise formulation could            dictate the result.                                         -9-                                         -9-                 While adopting a "some evidence"  standard would greatly            simplify this case, we agree with the district court that the            more stringent literal language of Jackson should control our                                               _______            inquiry.    There  is  nothing ambiguous  about  the  Jackson                                                                  _______            standard, however hard it may be to apply it in a close case;            it was the stated position of a majority of justices; and the            standard has never been overruled.  It is a tricky matter for            lower  federal courts to  anticipate the  Supreme Court.   In            this  instance--especially   because  the  Jackson   rule  is                                                       _______            directly concerned with innocence, see 443 U.S. at 323--we do                                               ___            not think that we would be justified in diluting Jackson.                                                             _______                                         III.                 Accordingly,  we  proceed  to consider  whether  on  the            record made in the  trial court "any rational trier  of fact"                                             ___            could have found Stewart guilty of murder beyond a reasonable            doubt.  Jackson, 443 U.S. at 319.  This is an inquiry we make                    _______            de novo on  a cold  record without any  special deference  to            _______            either the state's highest  court, see  Jackson, 443  U.S. at                                               ___  _______            318-25, or the federal district court,  see Scarpa v. DuBois,                                                    ___ ______    ______            38 F.3d 1, 9 n.5  (1st Cir.), petition for cert. filed  (Nov.                                          ________________________            21, 1994) beyond the  persuasive power of their (conflicting)            interpretations of the record.                  In  many criminal cases that are close on the facts, the            closeness is  concealed because  an eye witness  testifies to            the defendant's guilt.   Eye witnesses,  of course, can  make                                         -10-                                         -10-            mistakes;  but the  newspaper reader  or the  appellate court            reading  the transcript after  conviction sidesteps the doubt            because the factfinder has credited  the witness, and that is            the  end of  the matter in  all but  the most  extreme cases.            Only  in circumstantial-evidence  cases like  this one  do we            face head-on  the disturbing truth that  guilty verdicts rest            on  judgments about  probabilities  and  those judgments  are            usually intuitive rather than scientific.                 The essential  facts of  this case--those that  the jury            was unquestionably  entitled to find--are  rather simple: the            prior  association  earlier that  day  of  Good and  Stewart;            Stewart's  knowledge that  Good  was armed  and vicious;  the            parking  of the  car on  a side  street  with Stewart  at the            wheel;  the  murder of  Perry by  Good  around the  corner on            Cambridge Street;  Good's hasty return  to the car  after the            shots; the high-speed getaway and the subsequent crash of the            car;   and    Stewart's   lies   to    the   police   tending            (unsuccessfully) to shield Good from capture.  There  is also            no doubt about what inference of fact the jury had to draw in            order  to convict  Stewart of  murder  under a  joint venture            theory.  Although Massachusetts' label is uncommon, its joint            venture theory is essentially an aiding and abetting concept.            Stewart clearly  aided Good's escape  after the murder.   The            difficult factual question is  whether Stewart also knew that            Good was  planning to commit  a murder  or, as would  also be                                         -11-                                         -11-            adequate under Massachusetts law, knew that Good was planning            to  do grievous bodily harm  to his victim.   Commonwealth v.                                                          ____________            Moore, 556 N.E.2d 392 (Mass. 1990); Commonwealth v. Grey, 505            _____                               ____________    ____            N.E.2d 171 (Mass. 1987).                   Why  is it  that nine  judges(including the  majority on            this  panel) think that the  stated facts permit  a clear and            compelling  inference  of  Stewart's guilt  and  four  others            (including our  dissenting colleague) think it  plain that an            acquittal should have been ordered?  After all, the fact that            no  one overheard Stewart and  Good planning a  murder is not            dispositive;   agreements   are   frequently  inferred   from            circumstances.  United  States v. Moran, 984  F.2d 1299, 1300                            ______________    _____            (1st Cir.  1993).  The difference between  the two viewpoints            expressed by the  eleven judges, we think,  lies primarily in            the different probabilities that each side implicitly assigns            to the possible alternative versions of what happened.                     ________                 The Supreme  Judicial Court thought  it reasonably clear            that Good and  Stewart must  have been looking  for Perry  so            that  Good  could murder  him; saw  Perry proceeding  east on            Cambridge Street; and then parked the car on a side street to            permit  a  quick getaway  after  Good  accosted Perry.    The            district court,  by contrast,  thought this to  be conjecture            and said  that there  were other plausible  explanations that            did not involve advance knowledge by Stewart that  Good meant            to kill or assault Perry.  Good lived a few  blocks away from                                         -12-                                         -12-            Maple  Avenue;  the district  court conjectured  that Stewart            might  have been awaiting  Good's return from  his house when            Good encountered Perry on the way back.                 We agree  with the  district  court that  there is  very            little  to show  that  Good and  Stewart  were searching  for            Perry;  but that is not  a necessary component  in a scenario            leading to Stewart's guilt.  It would be adequate if it could            be  inferred beyond a  reasonable doubt either  that Good and                                                    ______            Stewart were searching for Perry or that they happened to see                                             __            Perry  while  cruising  on  Cambridge Street  and  Good  then            proposed to  murder Perry.  Either  possibility is consistent            with  the  evidence,  and  both involve  prior  knowledge  by            Stewart of Good's intent.  Both possibilities are also  quite            plausible.                 By contrast, we think that it is implausible  to suppose            that Good  was  visiting  or purporting  to  visit  his  home            located near  but not on Maple  Avenue.  If this  were so, as            the  district  court  thought  quite possible,  there  is  no            apparent reason why  Stewart's car would  be parked on  Maple            Avenue instead of in front of Good's home.  This brings us to            Stewart's  brief which,  in its  only conjecture  about other                                        ___            explanations, asserts:                 [T]he  evidence provides no  clue whether  Mr. Good                 left Mr. Stewart's car  with the innocent intention                 of buying  a newspaper,  visiting a sick  friend at                 the hospital,  or even, -- taking  into account Mr.                 Good's bad character  -- robbing the  hospital gift                 shop.                                         -13-                                         -13-            Assuming  any of these purposes, it is at least possible that            Good  might have rushed back to the car after murdering Perry            and spurred the unwitting Stewart into driving quickly away.                 But  why would  anyone wanting a  newspaper wait  at the            wheel down  the block on a  side street where, so  far as the            evidence goes,  no newspaper vending  machine is known  to be            located?   If  Good were  visiting a  sick friend,  why would            there not  have been  evidence at  trial that  he had such  a            friend in the hospital--a fact that could almost certainly be            proved without Stewart's testimony?  As  for the robbery, one            would not normally think that a hospital gift shop would make            an inviting target--given the limited proceeds and the likely            presence  of  hospital guards--compared  to  any neighborhood            convenience store.                 The  point is  not  that the  explanations proffered  in            Stewart's  brief are impossible but none of them seems at all            likely.   And the  two innocent  ones--or any  like them--are            also not easily squared  with the high-speed getaway or  with            the  cover-up  lies told  by Stewart  after  the crash.   The            record  is, as the district court said, unclear as to whether            Stewart pulled instantly out of the space or had to maneuver;            but the evidence does show that Stewart drove away very fast,            and  the later  accident  reinforces the  point.   Similarly,            Stewart's  lies  to  the police--especially  the  spontaneous            denial  that there was anyone  else in the  car--do not prove                                         -14-                                         -14-            that  he was privy to the  crime in advance but reinforce the            impression.                  Of course, where there is no eye witness one can imagine            innocent explanations for almost anything--here, for example,            that  Good, having  left to  buy a  newspaper, disclosed  the            murder as he reentered the car and Stewart  instantly decided            to  protect his  friend (by  fleeing at  high speed  and then            lying to the police)  although at grave risk to himself.  But            this could  reasonably seem far-fetched  to a jury;  and each            new gap-closing assumption--e.g.,  the supposed  conversation                                        ____            in the car--adds a new strain to the story.                 Guilt beyond  a reasonable  doubt cannot be  premised on            pure  conjecture.    But  a conjecture  consistent  with  the            evidence  becomes  less  and  less a  conjecture,  and  moves            gradually toward proof,  as alternative innocent explanations            are discarded or made less likely.  Here, there is nothing at            all unlikely about the hypothesis that Good  and Stewart were            either stalking  Perry or chanced  upon him and  decided that            Good would kill  him.   No other explanation  that is at  all            likely has been suggested to us.  "Beyond a reasonable doubt"            does not require the exclusion  of every other hypothesis; it            is enough  that all "reasonable" doubts be  excluded.  United                                                                   ______            States v. Oreto,  37 F.3d  739, 753 (1st  Cir. 1994);  United            ______    _____                                        ______            States v. Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994).              ______    _______                                         -15-                                         -15-                 At this point,  Jackson's own  objective standard  turns                                 _______            against  the defendant.  It makes no difference whether we or            the  district judge  would  as jurors  have  voted to  acquit            Stewart or  whether we  ourselves  think that  there is  some            reasonable doubt.   The question posed by  Jackson is whether                                                       _______            "any"  rational jury  could on  the evidence  presented think            Stewart's knowing  participation so likely as  to exclude all            reasonable doubts.     And  rational  people can  have  quite            different  views about  the likelihood  that a  quick getaway            implies prior  planning or that one  otherwise innocent would            lie to the police to protect a murderous companion.                   The problem is  that no scientific data  exists on these            probabilities (and it might not be admissible if it existed).            Each judge and  juror brings  to the courthouse  a bundle  of            unarticulated assumptions about how the world works and about            the  respective  likelihoods of  different  concatenations of            events.  That does  not mean that we, or the  district court,            or the state tribunals can escape the task of second-guessing            the jury to the limited extent  necessary to direct verdicts,            apply  Jackson,  or consider  such  issues  on  appeal.   But                   _______            variations in human experience suggest that one should expect            a considerable  range of  reasonable estimates about  what is            likely or unlikely.                 We  do  not  have  the  same  confidence  as either  the            district court or the Massachusetts Supreme Judicial Court in                                         -16-                                         -16-            assigning  the probabilities in this  case.  All  that we can            say, with the advantage  of having both sets of  views before            us, is that the case against Stewart was not overwhelming and            involved some uncertainties that cannot be erased, but it was            also not so weak as to render the jury verdict irrational.  A            rational jury might well have acquitted without violating its            oath; but, drawing  all reasonable inferences in favor of the            prosecution, a rational jury could also convict.                 We have considered  the case  thus far in  terms of  the            scenarios suggested by the parties and  the four other courts            that have had the  Stewart case before them.   Although other                               _______            Massachusetts joint  venture cases have  been cited to  us by            the parties, each is  distinguishable; and none would relieve            us  of the  duty under  Jackson to  make our  own independent                                    _______            assessment  as to what a  reasonable jury could  infer on the            facts  of  this  case.   But  we  think  that one  additional            possibility is so patent  that it calls out for  comment even            though  neither side  has  thought  it  useful  to  draw  our            attention in this direction.                 The association of Stewart and Good, the prior shooting,            the strategically parked car,  the reasonably quick departure            and  high  speed   escape,  and  the   lies  to  the   police            cumulatively suggest that Stewart was the knowing participant            with  Good  in a  criminal joint  venture.   A  rational jury            could, given  the absence of other  likely explanations, find                                         -17-                                         -17-            the  joint  venture alternative  so  likely as  to  be beyond            reasonable  doubt.  In other  words, we think  that the jury,            although not obliged  to do  so, was entitled  to reject  any            notion (as posited by the district court) that Stewart was at            most shown  to be an accessory after the fact.  But just what            was the joint venture?                 The only theory  argued at trial by the prosecution, and            the  only one covered by  instructions to the  jury, was that            the  venture was one  to murder Perry  or to  do him grievous            bodily  harm.   We  think that  another possibility  suggests            itself as consistent with  the evidence:  that Good  left the            car as part of a plan  by Good and Stewart to rob someone  on            Cambridge  Street, whether  Perry  in  particular or  whoever            might come along, and that Perry  was the victim of a robbery            gone awry.  This scenario does not involve a shared intent to            commit murder or do bodily harm.                 It may be enough to say that  it is a substantially less            likely scenario than a planned murder, if only because of the            wounds  inflicted on Perry.   Two of the  three shots--one to            the head and one to the heart--suggest an intent to kill; and            this  is especially so of  the former since  the coroner said            that  the shot entered at the back  of the skull.  Of course,            it is  still possible that  Perry resisted a  robbery attempt            and was then killed, but the shot from behind makes this less            likely.  We also have no reason to think that Perry (en route                                         -18-                                         -18-            to meet his former wife for lunch) was armed, and there is no            evidence--which the prosecution would have had good reason to            offer  if it  existed--that  Perry's wallet  or property  was            found in the car.                 Ironically,  if the  joint  venture were  one to  commit            robbery, it appears that Stewart would still have been guilty            of  murder   under  the   felony  murder  rule   followed  in            Massachusetts  and   in  many  other  states.     See,  e.g.,                                                              ___   ____            Commonwealth v. Claudio, 634 N.E.2d 902, 906-07 (Mass. 1994).            ____________    _______            Of course, that would not be a basis for sustaining Stewart's            conviction on direct  appeal since he was never  charged with            felony murder.  But we doubt  whether it would be part of the            office of habeas corpus to release a prisoner whose "defense"            in seeking the writ was that he had committed murder but only            on a theory not properly presented to the jury.                                         IV.                 Judges who  have presided over criminal  jury trials are            wont to say that  the juries usually  reach a correct, or  at            least defensible,  result on the evidence  presented to them.            That is no reason to diminish further safeguards, such as the            directed verdict,  against the  tragic risk that  an innocent            person may be  sent to prison.   It is  a reason to  hesitate            long and  hard before  concluding that  a jury's  judgment is            irrational.                 The judgment of the district court is reversed.                                                       ________                                         -19-                                         -19-                                                          Dissent                                                          _______            follows.            _______                                         -20-                                         -20-                      Stahl, Circuit Judge, dissenting:   With respect, I                      Stahl, Circuit Judge,                              _____________            dissent.  I agree  with the district court that  the evidence            was  not adequate  for a  jury to  find, beyond  a reasonable            doubt, that Stewart was involved in a joint venture to commit            murder.  See Stewart v. Coalter,  855 F. Supp. 464 (D.  Mass.                     ___ _______    _______            1994).   Unlike the majority, I am "loathe to stack inference            upon  inference  in  order  to uphold  the  jury's  verdict."            United  States v. Valerio, No.  94-1708, slip op.  at 14 (1st            ______________    _______            Cir. Feb. 27, 1995) (citing Ingram v. United States, 360 U.S.                                        ______    _____________            672, 680 (1959)).                 For  the  jury  to  return a  verdict  of  second-degree            murder,  it had  to  find that  Good  planned to  kill or  do            grievous bodily harm, that Stewart was aware of Good's  plan,            and that Stewart  intended to  aid Good in  carrying it  out.            Commonwealth  v.  Stewart, 582  N.E.2d  514,  518 n.3  (Mass.            ____________      _______            1990).  I  cannot see how a  rational jury could  have found,            beyond reasonable doubt, that  Stewart had such knowledge and            intent.   At  most,  I think  that  Stewart might  have  been            convicted as an accessory  to murder after the fact,  a crime            with which he was never charged. There  is  no evidence  that            Stewart  and Good entered into a joint venture to kill Perry.            When  one reads the record, it is not "reasonably clear" that            Stewart  and Good  had been  looking for  Perry so  that Good            could kill him.   In fact, it is not  even clear that Stewart                                         -21-                                         -21-            knew  Perry at all.2   It is undisputed  that neither Stewart            nor Good  could have known of Perry's two calls to his former            wife, during the second  of which she finally agreed  to meet            him at a restaurant in Inman Square, Cambridge, or that Perry            would  be proceeding  west  on Cambridge  Street.   It  is  a            significant stretch to say  that Stewart parked his car  on a            side   street  to   permit  a   quick  getaway   should  Good            fortuitously  accost  Perry,  especially  since   Good  lived            nearby.   Nor is there  evidence that Stewart  parked the car            where  he  did because  it was  a  convenient place  to await            Good's  return  after  killing  Perry,  whom  they  had  just            happened  to see.3  Even if  one accepts as true the disputed            testimony concerning  Stewart's lies to the  police after the            intersection accident,  those lies do  not prove that  he was            privy  to the  crime in  advance; at  best, they  support the            accessory argument.                   In  order  to  find   the  scenario  postulated  by  the            majority, one  has to conjecture and find evidence where none                                            ____________________                 2    There is  also no  evidence  that Stewart  and Good            entered into a joint venture  to kill someone at random.   In            fact, Good was convicted of the first-degree murder of Perry.            See Commonwealth v. Stewart, 582 N.E.2d at 515 n.1.            ___ ____________    _______                 3   I note  that  the jury,  in returning  a verdict  of            second-degree murder, necessarily found that Stewart did  not            premeditate.                                         -22-                                         -22-            exists.4  I would grant the writ.                                            ____________________                 4  I also disagree  with the majority's speculation that            the  current Supreme  Court  would abandon  the Jackson  rule                                                            _______            requiring  us   to  determine  "whether,  after  viewing  the            evidence  in the light most favorable to the prosecution, any                                                                      ___            rational trier  of fact could have  found evidence sufficient            to  prove  the  essential  elements of  the  crime  beyond  a            reasonable  doubt," Jackson  v. Virginia,  443 U.S.  307, 324                                _______     ________            (1979)  (emphasis  in  original),  in favor  of  the  Jackson                                                                  _______            concurrers' more limited inquiry  into whether there was some                                                                     ____            evidence  to support  the disputed  finding, see  id. at  326                                                         ___  ___            (Stevens  concurring).   Majority at  7-8.   I note  that the            Court  recently,  in  the  context  of  constitutional  trial            errors,  made habeas review more, not less, generous.  O'Neal                                                                   ______            v. McAninch, No. 93-7407, 1995 WL 66598 (U.S. Feb. 21, 1995).               ________                                         -23-                                         -23-
