September 15, 1995 [NOT FOR PUBLICATION]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
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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
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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
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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
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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
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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.
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