                                                       Supreme Court

                                                       No. 2009-147-Appeal.
                                                       (PM 05-55)


   Hector Jaiman                  :

          v.                      :

State of Rhode Island.            :




    NOTICE: This opinion is subject to formal revision before publication in
    the Rhode Island Reporter. Readers are requested to notify the Opinion
    Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
    Rhode Island 02903, at Tel. 222-3258 of any typographical or other
    formal errors in order that corrections may be made before the opinion is
    published.
                                                                  Supreme Court

                                                                  No. 2009-147-Appeal.
                                                                  (PM 05-55)


               Hector Jaiman                   :

                     v.                        :

           State of Rhode Island.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Flaherty, for the Court. The applicant, Hector Jaiman, appeals to this Court

from the Superior Court’s denial of his application for postconviction relief. Jaiman previously

was convicted of first-degree murder, assault with intent to murder, and assault with a dangerous

weapon. Before this Court, Jaiman contends that his application for postconviction relief should

have been granted based on a violation of his right to due process. He also argues that he was

prejudiced by the ineffective assistance of his trial counsel because his counsel failed to object to

what the applicant maintains was improper witness vouching and because his trial counsel failed

to object to a first-degree murder instruction that the trial justice imparted to the jury. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court denying the

application for postconviction relief.




                                                -1-
                                                 I
                                         Facts and Travel

       The factual background of this case is described at length in the direct appeal of

defendant’s conviction—viz., State v. Jaiman, 850 A.2d 984, 985-87 (R.I. 2004). For the sake of

brevity, we shall summarize only the facts that are relevant to the issues raised by this appeal.

                                               A
                                           Background

       On the evening of September 18, 1993, Jaiman was operating a motor vehicle in Central

Falls accompanied by Ariel Muriel. As they traveled, the pair encountered a car driven by Albert

Robertson, in which Thomas DeGrafft and Dean Zigbuo were passengers. As the two cars drove

side-by-side, Muriel fired a handgun into Robertson’s car. Robertson was struck, DeGrafft was

mortally wounded, and Zigbuo escaped without injury.

       On May 12, 1994, Jaiman and Muriel were charged with six criminal charges, including:

murder of DeGrafft, assault with intent to murder Robertson, conspiracy to murder DeGrafft,

conspiracy to assault Robertson, assault with a dangerous weapon upon Zigbuo, and conspiracy

to commit felony assault upon Zigbuo. While he was incarcerated awaiting trial, Muriel entered

into a plea bargain with the Attorney General. Muriel agreed that, in exchange for his testimony

against Jaiman, he would plead guilty to a reduced charge of the second-degree murder of

DeGrafft. After his plea was accepted by a justice of the Superior Court, Muriel received a

sentence of fifty years for second-degree murder, with twenty years to serve and thirty years

suspended, and a guarantee that he would appear before the Parole Board in July 2000. In

accordance with the plea bargain, Muriel, through an interpreter, gave an unsworn seven-page

statement to the Central Falls Police, in which he said that Jaiman had provided him with a gun

and had instructed him to shoot Robertson.



                                                -2-
                                               B
                                            The Trial

       In October and November of 1995, Jaiman went to trial before a jury; Muriel testified at

the trial as the prosecutor’s key witness. However, the jury was unable to achieve unanimity,

and a mistrial was declared. In February 2000, Jaiman went to trial a second time. During that

trial, the state again called Muriel to the stand, but this time, he refused to testify, maintaining

that it was his understanding that his plea agreement required him to testify truthfully only once.

When he was asked whether he had testified truthfully at the first trial, he responded, “[a]s far as

I remember, I think so.” Nonetheless, Muriel professed that he had no memory of Jaiman saying

anything to him about Robertson, he had no memory of Jaiman giving him a gun that night, he

had no memory of Jaiman telling him to shoot Robertson, and he had no memory of what he did

with the gun afterward. He continued to maintain that position even after he was shown the

statement he had provided to the Central Falls Police and after the state attempted to refresh his

recollection by showing him a transcript of his testimony from Jaiman’s first trial. He explained

that his memory failure was the result of the passage of time and the stress arising from his

incarceration.

       As a result of Muriel’s memory failure, the trial justice permitted portions of the

witness’s police statement to be read to the jury. Significantly, when Muriel testified that he

could not remember the position of the vehicles when he started firing at the Robertson car, he

was presented with his police statement in an attempt to refresh his recollection. The following

portion of that statement was read to Muriel in the presence of the jury:

                 “Q    Did there come a time that any of the cars turned off the
                       street? * * *

                 “A    Answer: The shooting stopped and they turned left and we
                       turned left and they turned right, I think. Question: Before

                                               -3-
                       you turned left did you shoot at the car any other time?
                       Answer: Yes, as [Jaiman]’s car was turning onto the street I
                       shot twice more. Question: Where did you go then?”

       The state then moved to have the entire police statement entered into evidence as a full

exhibit, and defendant objected. However, after a recess, defense counsel said that he had

reached an agreement with the state and that he did not object to the introduction of the three

questions that the prosecution had identified. The trial justice also allowed the introduction of

additional portions of the police statement as a full exhibit as a prior inconsistent statement.

       On March 3, 2000, the jury found Jaiman guilty of the first-degree murder of DeGrafft, as

well as assault with intent to murder Robertson and assault with a dangerous weapon upon

Zigbuo. 1 Jaiman filed a motion for a new trial, which the trial justice denied, and on March 9,

2000, he sentenced Jaiman to a mandatory term of life imprisonment for the first-degree murder

and to two concurrent terms of twenty years to serve on both assault convictions.

                                                C
                                        The Direct Appeal

       Jaiman timely filed a notice of appeal to this Court. 2 It is fair to say that defendant’s

appeal to this Court focused on the introduction of Muriel’s police statement during the trial. In

a decision dated June 22, 2004, this Court held that the police statement was admissible as a

prior inconsistent statement, and we affirmed the conviction. 3 Jaiman, 850 A.2d at 990.



1
  The count for conspiracy to murder DeGrafft did not go to the jury because the trial justice
granted a judgment of acquittal after the state’s case. Similarly, the counts of conspiracy to
assault Robertson and conspiracy to commit felony assault upon Zigbuo did not go to the jury
because the state dismissed the counts.
2
  In June 2002, the case was remanded to the Superior Court for a hearing on Jaiman’s motion
for a new trial based upon newly discovered evidence. On September 26, 2002, the trial justice
denied the motion for a new trial, and the matter was returned to this Court for oral argument.
3
  For the first time on appeal, Jaiman also argued that Muriel’s statement did not qualify as a
recorded recollection under Rule 803(5) of the Rhode Island Rules of Evidence, nor was it
admissible as a statement against interest under Rule 804(b)(3) of the Rhode Island Rules of
                                                -4-
                                               D
                                      Postconviction Relief

       On December 16, 2004, Jaiman filed a pro se application for postconviction relief in the

Superior Court, which was amended twice after counsel was appointed to represent him. In

Jaiman’s second amended application, he delineated twelve reasons to support his argument that

his conviction and his sentence violated the Constitution of the United States and the

Constitution and laws of Rhode Island, including that his trial attorney was ineffective because

he did not object to the prosecutor’s unnecessary multiple references to “truthfulness” when

addressing Muriel’s cooperation agreement, that his trial attorney was ineffective because he

failed to request any type of cautionary instruction when the prosecutor improperly vouched for

Muriel’s truthfulness, and that his sentence “exceeded the maximum authorized by law and is

otherwise not in accordance with the sentence authorized by law.” 4

       A hearing on Jaiman’s postconviction-relief application was held on August 13, 2008.

During the hearing, the parties agreed to address the specific issue of whether there was merit to

Jaiman’s allegation that he was currently serving an illegal sentence. 5 After the parties presented

their respective arguments, the trial justice concluded that counsel’s argument that Jaiman was


Evidence. State v. Jaiman, 850 A.2d 984, 987 (R.I. 2004). He also argued that Muriel’s
extensive memory lapses rendered him functionally unavailable for cross-examination and,
therefore, that the use and introduction into evidence of the police statement violated the
Confrontation Clause of the Sixth Amendment to the United States Constitution. Jaiman, 850
A.2d at 987-88. We held that those arguments had been waived because defendant failed to raise
them below.
4
  Jaiman alleged nine other grounds for postconviction relief in his application. Those claims,
however, are not before this Court.
5
  Jaiman phrases this argument as an “illegal sentence.” This Court has defined an illegal
sentence as a sentence “that is not authorized by the statute establishing the punishment that may
be imposed for the particular crime or crimes.” State v. Texieira, 944 A.2d 132, 143 (R.I. 2008).
Essentially, however, Jaiman has challenged the legality of his conviction by arguing that, as an
aider and abettor, he cannot be convicted of a more serious offense than the principal. For
consistency with the record, this Court will continue to refer to this argument as an “illegal
sentence,” despite the inartful phrasing of the claim.
                                               -5-
serving an illegal sentence was “not supported either in law or in fact or frankly in policy as to

the rights to plea bargain and the right of the state to seek and prosecute at levels that they

choose for the defendants that are targeted for violation of the law.”

       Upon review of the other issues argued in defendant’s brief, the trial justice concluded

that he saw “no reason to convene any kind of evidentiary hearing at all claiming basically to the

ineffective assistance because [trial counsel] represented the defendant and somehow sat on his

hands and failed to object at certain times or permit inculpable faulty statements to come in,” and

“[f]rankly, the Rhode Island Supreme Court ruled on a fair amount of that already and even

before closing argument that there was a decision in Jaiman reported at 850 A.2d 984.” The trial

justice further explained that he saw

               “nothing raised in [trial counsel’s] brief * * * or delineated in [trial
               counsel’s] memoranda * * * that any stretch of the imagination
               transgresses or reaches the Strickland level and I’m of the mind
               that to the extend [sic] that you care to have this matter reviewed
               by the Supreme Court, by all means take it upstairs if you like, but
               I see no reason to offer judgment in favor of your client in this
               matter.”

       Before he dismissed Jaiman’s postconviction-relief application, the trial justice asked

Jaiman’s postconviction-relief counsel to explain what would be gained by inviting trial counsel

to the stand to explain his reasons for objecting or not objecting to certain evidence. Jaiman’s

counsel responded that he believed there was merit to the allegation that the objections should

have been made by trial counsel. He also argued that even if he personally did not believe there

was merit to the issues in the postconviction-relief application, and if he had reported such an

opinion in a Shatney memorandum, Jaiman nonetheless “has the opportunity to proceed even pro

se if he still wanted to have those issues brought before the Court.” See Shatney v. State, 755

A.2d 130 (R.I. 2000).



                                                -6-
         The trial justice responded that Shatney does not require the court to provide a hearing in

every single instance for which there is a prayer for relief and, in this case, that he concluded all

the issues were “ripe for determination without evidentiary hearing.” Jaiman’s counsel asked the

trial justice to “note our exception,” and requested permission to allow Jaiman to address the

court. After listening to Jaiman’s comments, the trial justice said that he was not persuaded, and

he denied the application for postconviction relief. A formal judgment was entered, denying

Jaiman’s application. Jaiman timely appealed to this Court. Before this Court, Jaiman raises the

following four issues on appeal of the denial of his postconviction-relief application: (1) his due

process rights were violated when the prosecutor improperly vouched for Muriel’s credibility,

(2) his conviction for first-degree murder violated G.L. 1956 § 11-1-3, 6 (3) his trial counsel was

ineffective for failing to object to the first-degree murder instruction, and (4) his trial counsel

was ineffective for failing to object to the prosecutor’s improper witness vouching.

                                                II
                                        Standard of Review

         General Laws 1956 § 10-9.1-1 creates a postconviction remedy “available to any person

who has been convicted of a crime and who thereafter alleges either that the conviction violated

the applicant’s constitutional rights or that the existence of newly discovered material facts

requires vacation of the conviction in the interests of justice.” Higham v. State, 45 A.3d 1180,

1183 (R.I. 2012) (quoting DeCiantis v. State, 24 A.3d 557, 569 (R.I. 2011)). We note that an



6
    General laws 1956 § 11-1-3 provides:

                “[e]very person who shall aid, 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 principal
                offender is subject to by this title.”
                                                -7-
applicant for postconviction relief must bear “the burden of proving, by a preponderance of the

evidence, that [postconviction] relief is warranted” in his or her case. Anderson v. State, 45 A.3d

594, 601 (R.I. 2012) (quoting Mattatall v. State, 947 A.2d 896, 901 n.7 (R.I. 2008)). When

“reviewing the denial of postconviction relief, this Court affords great deference to the hearing

justice’s findings of fact and will not disturb his or her ruling ‘absent clear error or a showing

that the [hearing] justice overlooked or misconceived material evidence.’” Higham, 45 A.3d at

1183 (quoting Brown v. State, 32 A.3d 901, 907-08 (R.I. 2011)).

       When evaluating allegations of ineffective assistance of counsel, the standard employed

by this Court is identical to that set forth by the Supreme Court of the United States in Strickland

v. Washington, 466 U.S. 668 (1984).          “Applicants are required to demonstrate that: (1)

‘counsel’s performance was deficient’ in that it fell below an objective standard of

reasonableness, * * * and (2) ‘that such deficient performance was so prejudicial to the defense

and the errors were so serious as to amount to a deprivation of the applicant’s right to a fair

trial.’” Tassone v. State, 42 A.3d 1277, 1284-85 (R.I. 2012) (quoting Lynch v. State, 13 A.3d

603, 605-06 (R.I. 2011) and Bustamante v. Wall, 866 A.2d 516, 522 (R.I. 2005)).

       When determining whether opinion testimony is inadmissible “bolstering” or “vouching,”

this Court considers if “the opinion testimony has the same substantive import as if it squarely

addressed and bolstered another witness’s credibility * * *.” State v. Rushlow, 32 A.3d 892, 899

(R.I. 2011) (quoting State v. Adefusika, 989 A.2d 467, 476 (R.I. 2010)). “When this Court

determines that specific testimony constitutes impermissible bolstering, our task is then to

determine whether the trial justice’s decision to admit such improper testimony constituted

prejudicial error.” Id. (citing Adefusika, 989 A.2d at 476).




                                               -8-
        Finally, under Rule 35(a) of the Superior Court Rules of Criminal Procedure, “[t]he court

may correct an illegal sentence at any time.” See State v. Linde, 965 A.2d 415, 416 (R.I. 2009).

“A ruling on a motion to correct sentence is committed to the sound discretion of the hearing

justice, and his or her decision will normally be disturbed ‘only when the sentence is without

justification.’” State v. Bouffard, 35 A.3d 909, 916 (R.I. 2012) (quoting Curtis v. State, 996

A.2d 601, 604 (R.I. 2010)). Our review of such a ruling is limited, “particularly in light of our

‘strong policy against interfering with a trial justice’s discretion in sentencing matters.’” Id.

(quoting State v. Mendoza, 958 A.2d 1159, 1161 (R.I. 2008).               “When faced with the

interpretation of statutes and court rules upon review of a Rule 35 motion, however, we apply a

de novo standard.” Id. (citing State v. Goncalves, 941 A.2d 842, 847 (R.I. 2008)).

                                               III
                                             Analysis

                                               A
                                Vouching as Due-Process Violation

        Jaiman asserts that his due-process right to be tried only on evidence properly admitted

before the jury was violated because, he argues, the state wrongly vouched for Muriel’s

credibility. The state responds that Muriel’s credibility was an issue addressed on direct and

cross-examination, and the prosecutor’s statement during closing argument merely rebutted the

defense counsel’s statements.

        Section 10-9.1-8, entitled “[w]aiver of or failure to assert claims,” provides in pertinent

part:

               “Any ground finally adjudicated or not so raised, or knowingly,
               voluntarily and intelligently waived in the proceeding that resulted
               in the conviction or sentence or in any other proceeding the
               applicant has taken to secure relief, may not be the basis for a
               subsequent application, unless the court finds that in the interest of



                                               -9-
                justice the applicant should be permitted to assert such a ground
                for relief.”

This Court has held that § 10-9.1-8 “codifies the doctrine of res judicata as applied to petitions

for post-conviction relief.” State v. DeCiantis, 813 A.2d 986, 993 (R.I. 2003). Res judicata bars

the relitigation of any issue that could have been litigated in a prior proceeding, including a

direct appeal, that resulted in a final judgment between the same parties or those in privity with

them. See Carillo v. Moran, 463 A.2d 178, 182 (R.I. 1983); see also Ouimette v. State, 785 A.2d

1132, 1138 (R.I. 2001) (enumerating the elements of res judicata as: “(1) identity of the parties;

(2) identity of the issues; (3) identity of the claims for relief; and (4) finality of the judgment”).

        In this case, Jaiman could have, but did not, raise his due-process claim in the direct

appeal of his conviction, which focused solely on the admissibility of Muriel’s out-of-court

statements.    Jaiman, 850 A.2d at 987.         We hold, therefore, that Jaiman’s postconviction

challenge is barred by the doctrine of res judicata. Accordingly, we will not consider it.

                                                   B
                                           Illegal Sentence

        Jaiman also maintains that § 11-1-3 should be interpreted to require that an aider and

abettor cannot be convicted of and punished for a more serious offense than the principal, and in

this case, because the shooter, Muriel, was convicted of second-degree murder, Jaiman’s

conviction for the more serious offense of first-degree murder was improper. Jaiman relies on

what he argues is the plain and ordinary meaning of § 11-1-3, as well as the rule of lenity, to

support his interpretation. The state, however, argues that res judicata bars Jaiman’s substantive

claim under § 11-1-3. If further contends that even if the claim is not precluded, the plain and

unambiguous language of § 11-1-3 does not limit the potential that an aider and abettor will be

convicted of an offense that is the same as or less than that of the principal. The state also argues



                                                 - 10 -
that the rule of lenity should not apply because § 11-1-3 is unambiguous and not susceptible to

more than one reasonable interpretation.

        Before addressing the merits of defendant’s argument, we first will consider whether the

issue is properly before this Court on appeal. Section 10-9.1-8 provides a procedural bar to “the

relitigation of any issue that could have been litigated in a prior proceeding, even if the particular

issue was not raised.” Tassone, 42 A.3d at 1284 n.7 (quoting Ouimette, 785 A.2d at 1138). In

our opinion, Jaiman’s argument that he suffered the imposition of an illegal sentence should have

been raised on direct appeal. However, our reading of the record reveals that Jaiman’s attorney

and the state agreed to address this issue at the postconviction-relief hearing and that the trial

justice considered the arguments of each party and rendered a decision. Accordingly, because

the issue was raised before the trial justice and ruled upon by him, this Court will not deem the

argument waived and will address it. Cf. State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008) (“It is

well settled that a litigant cannot raise an objection or advance a new theory on appeal if it was

not raised before the trial court.”).

        “This Court reviews questions of statutory interpretation in a de novo manner.” State v.

Graff, 17 A.3d 1005, 1010 (R.I. 2011). In our approach to this interpretive task, we are mindful

that “our ultimate goal is to give effect to the General Assembly’s intent.” Martone v. Johnston

School Committee, 824 A.2d 426, 431 (R.I. 2003). We have stated, however, that “[t]he plain

statutory language is the best indicator of legislative intent.” State v. Santos, 870 A.2d 1029,

1032 (R.I. 2005). And, we have indicated that “a clear and unambiguous statute will be literally

construed.” Martone, 824 A.2d at 431. Accordingly, “[w]hen the language of a statute is clear

and unambiguous, we must enforce the statute as written by giving the words of the statute their

plain and ordinary meaning.” Graff, 17 A.3d at 1010 (quoting Harvard Pilgrim Health Care of



                                                - 11 -
New England, Inc. v. Gelati, 865 A.2d 1028, 1037 (R.I. 2004)). “It is only when confronted with

an unclear or ambiguous statutory provision that this Court will examine the statute in its entirety

to discern the legislative intent and purpose behind the provision.” In re Harrison, 992 A.2d 990,

994 (R.I. 2010) (quoting State v. LaRoche, 925 A.2d 885, 888 (R.I. 2007)).

       We have not had the opportunity to squarely address the issue raised by defendant, i.e.,

whether an aider and abettor can be convicted of a more serious offense or suffer a greater

penalty than the principal. In construing the language of § 11-1-3, however, it is our opinion that

the plain and unambiguous language requires the interpretation that the question shall be

answered in the affirmative.

       Section 11-1-3 provides that “[e]very person who shall aid, 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.” (Emphasis added.) The plain language of this

portion of § 11-1-3 explicitly provides that where, as here, defendant aided and abetted in the

crime and was present when it was committed, it is not improper to convict and punish him as a

principal. Indeed, in the past, we have recognized that “one need not have actually ‘pulled the

trigger’ in order to have committed first degree murder.” State v. Diaz, 654 A.2d 1195, 1201

(R.I. 1995). Whether a defendant is charged as a principal or as an aider or abettor, “all who

participate in a crime are severally responsible as principals, as though each had committed the

offense alone.” Id. at 1202 (quoting State v. Medeiros, 535 A.2d 766, 772 (R.I. 1987)).

       In this case, the evidence demonstrated to a jury’s satisfaction that Jaiman assisted Muriel

in the murder and that Jaiman was present at the scene. Accordingly, Jaiman properly was

convicted of murder. As we recognized previously, a “defendant’s manner of participation,

whether as a principal or [as] an aider or abettor, is not an element of the crime.” State v. Davis,



                                               - 12 -
877 A.2d 642, 648 (R.I. 2005) (emphasis added). The prosecution is not required to “persuade a

unanimous jury beyond a reasonable doubt” with respect to the manner in which a defendant

participated in a crime. 7 Id. This is significant because, in Rhode Island, there is no distinction

between one who pulls the trigger and those associated with him or her; all parties involved in

the crime are equally guilty of the completed offense. See 21 Am. Jur. 2d Criminal Law § 163 at

275 (2008). Thus, the plain and unambiguous language of § 11-1-3 makes clear that the statute

merely provides an alternative theory under which liability for the underlying substantive crime

may be proven.

       Section 11-1-3 also provides that “upon conviction[, the aider and abettor] shall suffer the

like punishment as the principal offender.” Here, both Muriel and Jaiman were subject to

punishment for murder.      The indictments charging Jaiman and Muriel did not include the

specific degree of murder for which they were charged, and both could have been convicted of

either first-degree murder or second-degree murder. Although Muriel pled to the lesser included

offense of second-degree murder, this does not negate the fact that he was subject to a first-

degree murder charge. It was only because of Muriel’s intervening plea bargain that Jaiman and

Muriel were not similarly situated. Nothing in the statute or in the prior holdings of this Court

tethers one defendant’s conviction and sentence to the criminal liability of another who

participated in the same crime. Consequently, it is our firm opinion that Jaiman was properly

charged and convicted of first-degree murder.

       Our holding is consistent with the manner in which other jurisdictions have interpreted

similar accomplice liability statutes. For example, the United States Supreme Court, which

7
  Our holding in Davis was based on the pertinent statutory language of § 11-1-3, which
“eliminates the legal distinction between [1] the commission of a crime as a principal and [2]
aiding and abetting another in the commission of a crime.” State v. Davis, 877 A.2d 642, 648
(R.I. 2005).
                                                - 13 -
interpreted a similar federal statute, decided that an aider and abettor could be convicted even

when the principal has been acquitted. See Standefer v. United States, 447 U.S. 10, 11, 19

(1980). In that case, after a revenue official was acquitted of accepting unlawful payments,

Standefer moved to dismiss the charges against him, arguing, on principles of collateral estoppel,

that because the principal was acquitted, he could not be convicted of aiding and abetting that

principal. Id. at 11-13. In rejecting that argument, the Supreme Court traced the origins of

aiding and abetting and found that there was “a clear intent to permit the conviction of

accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the

offense.” Id. at 19. Further, with the enactment of 18 U.S.C. § 2, 8 which was the statute at issue,

all participants in conduct violating a federal criminal statute were considered “principals” and

were punishable for their criminal conduct; the fate of other participants was irrelevant. Finally,

the Court noted that collateral estoppel would not bar the accomplice’s trial because through

lenity, compromise, or mistake, the jury might have reached an irrational result in the prior trial,

which was not subject to review at the government’s instigation. Standefer, 447 U.S. at 21-23.

         In addition, many commentators have concluded that there is no conceptual obstacle to

convicting a secondary party of a more serious offense than is proved against the primary party.

See Joshua Dressler, Understanding Criminal Law § 30.06[C] at 450 (2d ed. 1997). This

concept relates to homicide as follows:

                 “An accomplice may be convicted of first-degree murder, even
                 though the primary party is convicted of second-degree murder or

8
    The full text of 18 U.S.C. § 2, entitled “[p]rincipals,” provides:
                  “ (a) Whoever commits an offense against the United States or
                  aids, abets, counsels, commands, induces or procures its
                  commission, is punishable as a principal.
                  “ (b) Whoever willfully causes an act to be done which if directly
                  performed by him or another would be an offense against the
                  United States, is punishable as a principal.”
                                               - 14 -
               of voluntary manslaughter. This outcome follows, for example, if
               the secondary party, premeditatedly, soberly and calmly, assists in
               a homicide, while the primary party kills unpremeditatedly,
               drunkenly, or in provocation. Likewise, it is possible for a primary
               party negligently to kill another (and, thus, be guilty of involuntary
               manslaughter), while the secondary party is guilty of murder,
               because he encouraged the primary actor’s negligent conduct, with
               the intent that it result in the victim’s death.” Id.

       Accordingly, the plain language of § 11-1-3, supported by our previous interpretation of

aider and abettor liability and the history discussed in Standefer, rebuts Jaiman’s contention that

the statute was not intended to authorize the conviction of an aider and abettor of a greater

offense than the principal. Although “symmetry of results may be intellectually satisfying, it is

not required.” Standefer, 447 U.S. at 25; see Farnsworth v. Zerbst, 98 F.2d 541, 544 (5th Cir.

1938) (“One may die, may escape, or obtain a pardon; but the other remains guilty.”). An aider

and abettor’s conviction or sentence should not be reformed because the principal was acquitted

or convicted of a different offense or degree of offense. To hold otherwise would capriciously

condition a party’s conviction and sentence on the jury’s decision in another criminal case.

Therefore, this Court finds that Jaiman’s conviction was proper based on the plain and ordinary

meaning of § 11-1-3. 9

                                               C
                               Ineffective Assistance of Counsel

                                                 1
                                     Severity of Punishment

       Jaiman argues that his trial counsel’s failure to object to the first-degree murder

instruction constitutes ineffective assistance of counsel. The state, however, argues that although

9
  We acknowledge Jaiman’s argument concerning the rule of lenity; however, the rule of lenity
does not apply to this case because there is only one reasonable interpretation of § 11-1-3. The
rule of lenity is merely a principal of statutory construction; it is inapplicable when the
legislative intent is clear. Guerro v. Fitzpatrick, 436 F.2d 378, 380 (1st Cir. 1971) (citing
Milanovich v. United States, 365 U.S. 551, 554 (1961)).
                                               - 15 -
Jaiman raised a substantive challenge to the interpretation of § 11-1-3 in his application for

postconviction relief, he did not bring an ineffective assistance of counsel claim, and it is

therefore waived.    The state alternatively contends that even if Jaiman did not waive this

contention, Jaiman’s allegation that an aider and abettor cannot be convicted of a greater offense

than the principal is a novel theory in Rhode Island, upon which a claim for ineffective

assistance of counsel may not be founded.

       Our holding that an aider and abettor may, indeed, be convicted of a more serious offense

than the principal, however, makes any further discussion of this issue unnecessary. In other

words, the conviction was proper, and trial counsel’s failure to object cannot constitute

ineffective assistance of counsel. Counsel cannot be faulted for failing to raise a meritless

objection.

                                           2
      Failure to Object to Improper Vouching or to Request Cautionary Instructions

       Finally, Jaiman contends that his trial counsel’s failure to object to what he argues was

improper vouching for Muriel’s truthfulness during the state’s closing argument and failure to

request a cautionary jury instruction regarding that comment constitutes ineffective assistance of

counsel. During his closing argument to the jury, the prosecutor said, “[b]ut the reality is that

[Muriel] wasn’t going to get the deal that he wanted to make with the State of Rhode Island

unless the State of Rhode Island was convinced he was telling the truth.”

       The state argues that, while the prosecutor referred to the plea bargain, in no way did the

state insinuate that it had special knowledge about Muriel’s truthfulness; the prosecutor merely

rebutted defendant’s impeachment of Muriel’s credibility. The state also argues that, even if the

statement was improper, not objecting to it may have been a tactical decision by counsel to

prevent any further attention being drawn to Muriel’s credibility. Finally, the state maintains that

                                               - 16 -
the trial justice gave appropriate, general instructions about the arguments and statements by

both trial counsel to prevent the jurors from placing undue emphasis on any personal opinions

expressed by counsel during closing argument.

       We have held that “[a] prosecutor is ‘allowed considerable latitude in [closing]

argument[s] * * * as long as [he or she] stays within the evidence and * * * legitimate inferences

* * *.’” State v. Werner, 851 A.2d 1093, 1107 (R.I. 2004) (quoting State v. Harding, 740 A.2d

1270, 1274 (R.I. 1999)). However, we also have said that “[i]t is improper for the prosecution to

vouch for the credibility of a government witness.” State v. Chakouian, 537 A.2d 409, 412 (R.I.

1988) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). In Chakouian, this

Court explained that “[o]ne means through which improper vouching may occur is by admission

of plea agreements phrased in a manner that suggests that the government has special knowledge

that its witness is speaking the truth.” Id. Improper vouching can also occur “if the prosecution

‘place[s] the prestige of the government behind the witness * * *.’” Id. (quoting Roberts, 618

F.2d at 533)).

       It is not enough, however, for a defendant on appeal to assert that the prosecutor assured

the jury that a witness’s testimony was credible. The defendant must be able to identify, as the

basis for that comment, an explicit or implicit reference to either the personal knowledge of the

prosecuting attorney or information not contained in the record. See Lawn v. United States, 355

U.S. 339, 359-60 n.15 (1958). More specifically, with regard to cooperation agreements, this

Court has expressly said that “the mere statement in the cooperation agreement that [an

individual] would testify truthfully coupled with [his or] her acknowledgement that [he or] she

could be charged with perjury if [he or] she failed to do so does not constitute impermissible

vouching and certainly does not require reversal.” State v. Diefenderfer, 970 A.2d 12, 34 (R.I.



                                              - 17 -
2009); see United States v. Dockray, 943 F.2d 152, 156 (1st Cir. 1991) (“It is not error to inform

a jury of the contents of a plea agreement, nor is it improper for the government to call attention

to a witness’[s] motivation for testifying.”).

       In this case, Muriel was a recalcitrant witness who claimed that he remembered little or

nothing about the crime at issue or his earlier statements about what had occurred. As a result,

both sides liberally attacked his credibility. During his closing argument, the prosecutor referred

to Muriel’s promise to speak truthfully. The specific statement that Jaiman challenges is the

prosecutor’s remark that Muriel “wasn’t going to get the deal that he wanted to make with the

State of Rhode Island unless the State of Rhode Island was convinced he was telling the truth.”

Trial counsel did not object to that comment. Arguably, that comment could be construed as

improper vouching and implying special knowledge on the part of the state as to Muriel’s

truthfulness. See Brown v. State, 964 A.2d 516, 528 (R.I. 2009). Compare Lawn, 355 U.S. at

359-60 n.15 (holding that prosecutor’s statement, “[w]e vouch for [Roth and Lubben] because

we think they are telling the truth,” was not improper because he “did not say nor insinuate that

the statement was based on personal knowledge or on anything other than the testimony of those

witnesses given before the jury”), and Dockray, 943 F.2d at 156 (“It is not error to inform a jury

of the contents of a plea agreement, nor is it improper for the government to call attention to a

witness’[s] motivation for testifying.”), with Gradsky v. United States, 373 F.2d 706, 709-10 (5th

Cir. 1967) (holding that it was improper for prosecutor to state “when we offer a witness we have

to vouch for his credibility * * * the government representatives don’t put a witness on the stand

unless there appears to be some credibility * * * [c]ertainly, the government has every

opportunity to check out and to judge the credibility and truthfulness”) (emphasis omitted).




                                                 - 18 -
       Assuming without deciding that the prosecutor’s statement was objectionable, and further

assuming that an objection raised to it would have precipitated a cautionary instruction from the

trial justice, it is nonetheless our opinion that trial counsel’s failure to object to that single

statement, in a record of several hundred pages, was not constitutionally deficient or that it could

have so prejudiced Jaiman that it rendered the verdict in his trial unreliable. See Strickland, 466

U.S. at 687 (setting forth the two-prong test of whether counsel’s actions were objectively

unreasonable and that prejudice results to establish ineffective assistance of counsel); Simpson v.

State, 769 A.2d 1257, 1266 (R.I. 2001) (discussing Strickland). First, trial counsel’s failure to

object to the prosecutor’s statements about Muriel’s credibility cannot be said to have been

objectively unreasonable. Judicial scrutiny of counsel’s performance must be highly deferential.

In Strickland, 466 U.S. at 689, the Court cautioned a defendant against “second-guess[ing]

counsel’s assistance after conviction or adverse sentence.” Further, “it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable.”        Id. A fair assessment of counsel’s performance,

therefore, “requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id.

       Recognizing the difficulties inherent in making such an evaluation, “a court must indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466

U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In any given case, “[t]here

are countless ways to provide effective assistance * * *[;] [e]ven the best criminal defense



                                               - 19 -
attorneys would not defend a particular client in the same way.”                 Id.; cf. Engle v.

Isaac, 456 U.S. 107, 133-34 (1982) (holding that the Constitution guarantees criminal defendants

only a fair trial and a competent attorney; it does not ensure that the defense will recognize and

raise every possible claim). In light of the high degree of deference that the courts should

employ when evaluating counsel’s performance, Jaiman has not established that trial counsel’s

failure to object or his failure to request a cautionary instruction was objectively unreasonable.

See Washington v. State, 989 A.2d 94, 99 (R.I. 2010); see also Strickland, 466 U.S. at 689.

       Moreover, even if Jaiman had somehow satisfied the first prong of Strickland, we are

convinced that he has not demonstrated the existence of any prejudice suffered as a result of the

prosecutor’s statement concerning Muriel’s credibility. As previously discussed, in addition to

failing to show that trial counsel’s performance was deficient, this Court also must find that trial

counsel’s performance was so serious as to deprive defendant of a fair trial and therefore

prejudiced the defense. See Strickland 466 U.S. at 687.

       In this case, we are not satisfied that the prosecutor’s one reference in his closing

argument was incurably prejudicial or that it demanded a declaration of mistrial. This one

snippet is not so egregious that it should have caused a mistrial. Moreover, the trial justice

cautioned the jurors that statements of counsel during the trial or in final argument are not

evidence and are not to be considered by the jurors as evidence during their deliberations. See

State v. Hak, 963 A.2d 921, 930 (R.I. 2009) (holding that comments were not prejudicial when

the trial justice instructed the jury that it alone was to judge credibility and that statements by

attorneys during closing arguments were not evidence). Specifically, the trial justice instructed,

“statements of lawyer[s], either to you in their opening statement or in their closing argument or

whatever way they frame the question, those statements and arguments are not evidence.” In



                                               - 20 -
addition, immediately before closing arguments, the trial justice explained that “what a lawyer

say[s] is not evidence.” See State v. Fortes, 922 A.2d 143, 151 (R.I. 2007) (“in light of the clear

instructions given by the trial justice,” the prosecutor’s comment during closing argument “was

not unfairly prejudicial”). Accordingly, we hold that trial counsel’s failure to object did not

prejudice Jaiman or undermine the validity of the trial and the verdict reached.


                                           Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

The record shall be remanded to the Superior Court.




                                              - 21 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Hector Jaiman.

CASE NO:              No. 2009-147-Appeal.
                      (PM 05-55)

COURT:                Supreme Court

DATE OPINION FILED: November 16, 2012

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Robert D. Krause

ATTORNEYS ON APPEAL:

                      For Applicant: Janice M. Weisfeld
                                     Office of the Public Defender

                      For State: Aaron L. Weisman
                                 Department of Attorney General

                                 Lee Hiromoto
                                 Rule 9 Student
