DeCiantis v. Vose

Opinion

USCA1 Opinion

September 15, 1995    [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1542



                                ANTHONY J. DECIANTIS,



                                     Petitioner,



                                          v.



                                     GEORGE VOSE,



                                     Respondent.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND


[Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________



                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            William T.  Murphy  on  Memorandum in  Support of  Certificate  of
            __________________

        Probable Cause, for petitioner.


____________________


____________________



Per Curiam.   Petitioner Anthony DeCiantis requests
                      __________



            this court to issue a certificate of probable cause to appeal



            from the denial  of his petition for a  writ of habeas corpus



            filed under 28 U.S.C.   2254.



                      Petitioner  was   the  only  person   named  in  an



            indictment charging him with murder.   The evidence at  trial



            revealed  that the victim was forced into a car defendant was



            driving.  The victim's  body was discovered the next  day; he



            had been  shot twice, stabbed and run over by a car.  He died



            from  one of  the gunshot  wounds.   According to  witnesses,



            defendant  stated to  them  that he  and another  individual,



            Ricky Silva, had  killed the victim.  It turns out that Silva



            had  fired  the  fatal  shot.    Silva  never   was  charged.



            Petitioner's  conviction was upheld on  appeal.  See State v.
                                                             ___ _____



            DeCiantis, 501 A.2d 365 (R.I. 1985).
            _________



                      In  his    2254 petition,  petitioner raises  three



            grounds  for relief:  (1) the trial court instructed the jury



            that  it could convict petitioner of "aiding and abetting" in



            violation  of his  Sixth  Amendment right  to  notice of  the



            charges against  him; (2) this instruction  also violated the



            due process clause of  the Fourteenth Amendment by improperly



            amending  the  grand jury  indictment;  and  (3) counsel  was



            ineffective in neglecting  to object to the instruction.  The



district court denied the  habeas petition.  Because  we find



            that the  instruction was  proper, we need  only discuss  the



            first ground.



                      The  due process clause of the Fourteenth Amendment



            encompasses the Sixth  Amendment right to fair  notice of the



            criminal charges one will face.  Tarpley v. Estelle, 703 F.2d
                                             _______    _______



            157,  161 n.7 (5th Cir.), cert. denied, 464 U.S. 1002 (1983);
                                      ____________



            Watson v.  Jago, 558 F.2d 330, 338 (6th Cir. 1977).  Thus, "a
            ______     ____



            criminal defendant  [has] a  fundamental right to  be clearly



            informed of the nature  and cause of the charges  in order to



            permit adequate preparation of a defense."  Sheppard v. Rees,
                                                        ________    ____



            909 F.2d 1234, 1236  (9th Cir. 1989) (footnote omitted).   To



            determine whether  a defendant has been convicted  of a crime



            not  charged in  the indictment,  courts look  to state  law.



            See, e.g., Tarpley, 703 F.2d at 160 (Texas law of credit card
            ___  ____  _______



            fraud);  Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979)
                     _________    ____



            (Washington law of aiding and abetting); Watson,  558 F.2d at
                                                     ______



            334 (Ohio law of murder). 



                      Turning to Rhode Island law, then, R.I. Gen. Laws  



            11-1-3 provides:



                           Liability   for  aiding,   abetting,
                           Liability   for  aiding,   abetting,

                      counseling,    hiring,   or    commanding
                      counseling,    hiring,   or    commanding

                      offenses.  -- Every person who shall aid,
                      offenses.  -- 

                      assist, abet, counsel, hire,  command, or

                      procure  another to  commit any  crime or

                      offense,  shall  be proceeded  against as

                      principal or  as an accessory  before the

                      fact,  according  to  the  nature  of the

                      offense  committed,  and upon  conviction

                      shall suffer  the like punishment  as the


-3-



principal  offender is subject to by this

                      title.



            The Rhode  Island Supreme Court construed  the predecessor of



            this statute in State v.  Patriarca, 43 A.2d 54, 71 R.I.  151
                            _____     _________



            (1945), where  it held that the statute of limitations, which



            exempted  from its  reach  the crime  of murder,  nonetheless



            barred an  indictment for aiding and  abetting the commission



            of a murder.  In so holding the court stated:



                           In this  state it  is still the  law

                      that  an  indictment  for a  felony  must

                      charge a  person as a principal  or as an

                      accessory before the  fact, according  to

                      the  facts;  and  that on  an  indictment

                      which charges the defendant  as principal

                      he  cannot  be   convicted  on   evidence

                      showing that he  was merely an accessory,

                      or vice  versa,  1 Brill,  Cyc. of  Crim.

                      Law,   252, p. 450.  On that principle it

                      has been  held in numerous  cases that an

                      accessory   before   the  fact   must  be

                      proceeded against as  such accessory  and

                      not as a principal.



            43 A.2d at 57, 71 R.I. at 156-57.



                      The  Rhode  Island  Supreme  Court  has  adhered to



            Patriarca.   In State  v. Colvin, 107  A.2d 324, 82  R.I. 212
            _________       _____     ______



            (1954),  for  example,  the   defendant  was  charged  in  an



            indictment  as a principal in the commission of larceny.  She



            argued that there was  evidence at trial that she  had driven



            away while  another entered the house,  establishing that she



            only  was an accessory before the fact.  Thus, she concluded,



            there was insufficient evidence  to support her conviction as



            a  principal.   The  court  disagreed.   After  reviewing the


-4-



record,  it held that the  jury could have  believed that she



            had waited in the car  directly in front of the house.   This



            would make her a principal.  107 A.2d at 328, 82 R.I. at 219-



            20.  See also  State v. Hart, 258 A.2d 70, 72,  106 R.I. 213,
                 ___ ____  _____    ____



            217 (1969)  (as in Colvin, the act of waiting at the scene in
                               ______



            order to assist in the getaway is  sufficient to render one a



            principal; defendant's conviction for larceny was upheld).



                      Finally, in  State v.  McMaugh, 512 A.2d  824 (R.I.
                                   _____     _______



            1986),  the court  addressed an  argument similar to  the one



            petitioner is  advancing here.  Defendants  were both charged



            with  murder,  conspiracy and  carrying  a  weapon without  a



            license.   They were found  guilty of  all the  charges.   On



            appeal, one of the  defendants argued that, although indicted



            as  a principal in the murder, he actually had been convicted



            of aiding and assisting (his co-defendant had fired  the shot



            that killed the  victim).  In the same vein, he asserted that



            the trial court should not have instructed the jury on aiding



            and assisting.



                      The court disagreed.   Acknowledging Patriarca,  it
                                                           _________



            iterated  that a person must either be charged as a principal



            or  as an  accessory and  that "on  an indictment  charging a



            defendant as  a principal he cannot be  convicted on evidence



            showing  that he  was  merely an  accessory."   Id.  at  831.
                                                            ___



            However, the  court went on, "one  who aids and  abets in the



            commission of the crime and is  also present at the scene may


-5-



be  charged and convicted as a principal."  Id. (citing State
                                                        ___         _____



            v. Colvin, supra).  Because defendant was there when the shot
               ______  _____



            was fired and  had assisted  in the crime,  he therefore  was



            properly charged and convicted  as a principal.  Id.  at 831.
                                                             ___



            In  so  ruling,  it is  obvious,  we  think,  that the  court



            rejected defendant's  contention that  he had, in  fact, been



            convicted of aiding and abetting.



                      The  jury instruction  to which  petitioner objects



            states: 



                           [I]f  you  find that  the  State has

                      proved  within  the   meaning  of   proof

                      defined that the Defendant  committed the

                      crimes charged or the Defendant aided and

                      abetted in  any way  in that crime,  it's

                      your duty  to  say guilty  of  the  crime

                      charged by the State.



            Petitioner maintains that this  instruction added the new and



            distinct offense of aiding and abetting and directed the jury



            that it  could convict him of  this crime.  In  his view, the



            court raised a new charge after the prosecution had presented



            its evidence.   Thus, petitioner concludes that the court did



            not give him  fair notice  and an opportunity  to develop  an



            appropriate defense.



                      Petitioner's argument proceeds on what we think are



            at  least  three mistaken  assumptions:   (1)  that  the jury



            instruction, in fact, added a new charge; (2) that there only



            was  evidence of  aiding and  abetting; and  (3) that  he, in



            fact,  was convicted of aiding  and abetting instead  of as a


-6-



principal.   As  for  the first  assumption, the  instruction



            states  that if the evidence showed that petitioner aided and



            abetted the murder, the  jury should find him guilty  of "the
                                                                      ___



            crime  charged by the State."  The quoted language, we think,
            ___________________________



            can only refer  to the crime charged in the indictment.  That
                                                        __________



            is,  given that  presence  at the  scene  plus assistance  is



            sufficient  to render one a  principal, it is  plain that the



            trial court did not  instruct the jury that it  could convict



            petitioner as  an accessory.   Indeed,  we  hesitate even  to



            characterize  this   charge  as  an   "aiding  and  abetting"



            instruction in the sense of permitting a conviction on aiding



            and  abetting as  opposed to  allowing the  jury to  consider



            evidence of acts of assistance that, under Rhode Island  law,



            constitute the commission of the crime as a principal.



                      The   second  assumption   is  wrong,   of  course,



            precisely  because there  is evidence  that petitioner  was a
                                      __



            principal.    Specifically,  petitioner  stated  that  he had



            driven  over   the  victim  and  had   stabbed  him,  thereby



            demonstrating both  presence and  assistance.  The  foregoing



            also makes  clear that  the jury found  petitioner guilty  of



            murder, not aiding and abetting  another in the commission of



            murder.  This brings  the case within the holdings  of Colvin
                                                                   ______



            and McMaugh.   Finally, we reject  petitioner's argument that
                _______



            his conviction was contrary to Patriarca.  Simply, petitioner
                                           _________


-7-



was indicted as a principal and convicted on evidence showing



            that that is what he was.



                      Because we find that the  state court did not amend



            the indictment by  changing the crime  charged to aiding  and



            abetting,  petitioner's  claim  that the  court  violated due



            process   fails.    The  same  is  true  of  the  claim  that



            petitioner'sattorneyprovided ineffectiveassistanceof counsel.



                      The petition for a certificate of probable cause is



            denied.  Petitioner's appeal is terminated.
            ______


-8-