
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          September 15, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                          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-
