January 17, 2019
                       January 17, 2019




                                                                          Supreme Court

                                                                          No. 2016-102-M.P.
                                                                          (PM 14-5309)


                     Kendall Whitaker                :

                                          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. 2016-102-M.P.
                                                                  (PM 14-5309)


             Kendall Whitaker                   :

                     v.                         :

           State of Rhode Island.               :


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

                                           OPINION

       Justice Flaherty, for the Court. The State of Rhode Island seeks review of a Superior

Court judgment that granted Kendall Whitaker’s application for postconviction relief. Before

this Court, the state argues that it was error for the hearing justice to determine that trial counsel

rendered constitutionally deficient representation when counsel (1) did not request a jury

instruction for the aiding-and-abetting charges in line with Rosemond v. United States, 572 U.S.

65 (2014); and (2) did not challenge the sufficiency of the evidence that would support an aiding-

and-abetting conviction. For the reasons set forth in this opinion, we quash the judgment of the

Superior Court.

                                                    I

                                         Facts and Travel

       In 2006, Whitaker was convicted of (1) count one, first degree murder, which merged

with count two, first degree robbery, and sentenced to life; (2) count five, assault with a

dangerous weapon, and sentenced to fifteen years, with ten years to serve and five years

suspended, with probation; (3) count six, carrying a handgun without a license, and sentenced to




                                                -1-
five years; (4) count seven, use of a firearm during the commission of a violent crime, and

sentenced to twenty years to serve; (5) count eight, discharging a firearm in the commission of a

crime of violence, and sentenced to life to be served consecutively with the first life sentence;

and (6) count nine, committing a crime of violence while armed and having available a firearm,

and sentenced to ten years. We affirmed his conviction in State v. Whitaker, 79 A.3d 795 (R.I.

2013), and the facts pertinent to the underlying case are set forth in that opinion. In this opinion,

we will discuss only those facts that are relevant to this petition, which was filed by the state

after the Superior Court granted Whitaker’s application for postconviction relief.

       Whitaker was present at the apartment of Tammy Kennedy on the night in 2002 that Joel

Jackson was shot and killed. He was accompanied by two friends, Brandon Robinson and

Richard Isom. The three men had gathered earlier in the evening at Robinson’s home. When

they arrived at Kennedy’s apartment, George Toby—Kennedy’s friend—engaged the three men

in conversation, and at some point Whitaker, Robinson, Isom, and Toby all withdrew to the

hallway outside the apartment. After engaging in another brief conversation, Toby left the three

men in the hallway and returned to the apartment. According to Robinson and Isom, Whitaker

stated that he wanted to steal a gold chain that Jackson was wearing.

       Robinson and Whitaker then re-entered the apartment and a scuffle ensued.               Toby

testified that he saw Robinson and Jackson struggling and that he entered the fight to separate the

men. As he did, he noticed that Robinson was holding a gun, and he grabbed his hand in an

effort to control the weapon. Corissa Richardson, who was only thirteen years of age at the time,

but sixteen when she testified at trial, had accompanied Jackson to the party and said that she

saw Whitaker remove a handgun from his coat pocket and point it in the direction of the melee.

Isom, who testified pursuant to a cooperation agreement with the state, also said that Whitaker




                                                -2-
entered the apartment with a firearm on his person, and Robinson, who was also a cooperating

witness, said that Whitaker drew his gun after he came back into the apartment. The end result

was that Robinson, Jackson, and Toby all received gunshot wounds; Jackson’s was fatal.

       Robinson further testified at trial that, after Jackson was shot, he took the gold chain and

a medallion that Jackson had been wearing. He said that he placed the gold chain in his coat

pocket and carried the medallion in his hand. Isom testified that he later removed the gold chain

from Robinson’s coat pocket. Whitaker, Robinson, and Isom were eventually arrested and both

Robinson and Isom agreed to testify against Whitaker in exchange for charging and sentencing

considerations.

       After Whitaker was convicted, he filed a direct appeal to this Court in which he asserted

various claims of error. Relevant to this appeal, Whitaker claimed on direct appeal that there had

been insufficient evidence for the jury to convict him under an aiding-and-abetting theory.

Whitaker, 79 A.3d at 805. However, we determined that this issue was not properly raised

before the trial justice and therefore had been waived. Id. Whitaker also claimed on direct appeal

that the aiding-and-abetting instruction that had been provided by the trial justice to the jury was

erroneous. Id. at 807. Specifically, Whitaker claimed that “there was insufficient evidence in the

record to support an aiding-and-abetting instruction because there [was] no evidence in the

record to establish an action consistent with his supposed criminal intent.” Id. However, we held

that, based on the testimony of Robinson, Isom, and Richardson, there was sufficient evidence in

the record to support an aiding-and-abetting instruction. Id.

       Nearly one year after we affirmed his conviction, Whitaker filed an application for

postconviction relief. In that filing, he claimed that trial counsel had failed to propose jury

instructions in line with Rosemond; specifically, that the state should have had to prove that




                                                -3-
Whitaker actively participated in the underlying violent crime with advance knowledge that a

confederate would use or carry a gun during the commission of the crime. Whitaker further

argued that his trial counsel “failed to raise that there was insufficient evidence for the jury to

convict him under an aiding-and-abetting theory because the jury found that there was no

conspiracy, and the only evidence that supported aiding and abetting was the same evidence that

supported the conspiracy count, on which defendant was acquitted.” 1

       After a hearing, the hearing justice granted Whitaker’s application, directing that counts

one (murder), two (first degree robbery), seven (using a firearm during the commission of a

violent crime), eight (discharging a firearm during the commission of a violent crime), and nine

(carrying a firearm during the commission of a violent crime) be vacated. In her bench decision,

the hearing justice stated that the United States Supreme Court’s decision in Rosemond “should

apply in any situation in which the prosecution relies on a theory of aiding and abetting,

regardless of whether or not there are additional elements over and above those supporting the

predicate offense.” 2 The hearing justice also held that, although the federal aiding-and-abetting

statute and the Rhode Island aiding-and-abetting statute were different, Rosemond nonetheless

applied to this case. Specifically, she found that “criminal culpability requires knowing and

voluntary participation in a crime, as opposed to inadvertent, unplanned, or mistaken enablement

of the crime[,]” and that “[t]his necessarily would require the aider and abettor to fully

understand his cohort’s intentions beforehand and far enough in advance to opt out of the

enterprise.” Additionally, the hearing justice recognized that there was a split of authority across



1
  Whitaker raised additional arguments in his application, none of which are before us in this
review.
2
  The hearing justice also cited United States v. Encarnación-Ruiz, 787 F.3d 581 (1st Cir. 2015),
for the proposition that Rosemond did not limit its application to so-called double-barreled
crimes.


                                               -4-
jurisdictions as to whether Rosemond should be given retroactive effect. However, irrespective

of Rosemond’s retroactivity, she stated that she had the authority to grant Whitaker’s application

for postconviction relief based on ineffective assistance of counsel. It was her opinion that the

various aiding-and-abetting instructions she had given at Whitaker’s trial failed to incorporate

Rosemond’s holding; namely, that the government had to prove beyond a reasonable doubt “that

the defendant actively participated in the underlying * * * violent crime with advance knowledge

that a confederate would use or carry a gun during the crime’s commission.” Rosemond, 572

U.S. at 67. She further stated that, had defense counsel objected to her charge, she would have

considered Rosemond and instructed the jury differently. She therefore concluded that, because

Whitaker’s trial counsel failed to so object, Whitaker had satisfied both prongs of the analysis set

forth in Strickland v. Washington, 466 U.S. 668 (1984), with respect to his claim of ineffective

assistance of counsel. See Strickland, 466 U.S. at 690, 694.

       Moreover, the hearing justice remarked that this Court, in the opinion affirming

Whitaker’s conviction on direct appeal, “got it wrong when it stated * * * that there was

sufficient evidence to instruct the jury on aiding and [a]betting.” Indeed, she offered that she

should have been reversed on that claim because there was no proof that Whitaker had advance

knowledge of Robinson’s intentions.        Accordingly, the hearing justice granted Whitaker’s

application as to the aforementioned counts and directed that the judgment of conviction and

sentences for those counts be vacated. We granted the state’s petition for writ of certiorari.

                                                 II

                                       Standard of Review

       Pursuant to G.L. 1956 § 10-9.1-1, postconviction relief is a remedy “available to a

convicted defendant who contends that his original conviction or sentence violated rights




                                                -5-
afforded to him under the state or federal constitution.” Barros v. State, 180 A.3d 823, 828 (R.I.

2018) (quoting Hazard v. State, 968 A.2d 886, 891 (R.I. 2009)). An applicant for postconviction

relief bears “[t]he burden of proving, by a preponderance of the evidence, that such

[postconviction] relief is warranted[.]” Navarro v. State, 187 A.3d 317, 325 (R.I. 2018) (quoting

Motyka v. State, 172 A.3d 1203, 1205 (R.I. 2017)). “This Court will not disturb a [hearing]

justice’s factual findings made on an application for post[ ]conviction relief absent clear error or

a showing that the [hearing] justice overlooked or misconceived material evidence in arriving at

those findings.” Id. (quoting Chapdelaine v. State, 32 A.3d 937, 941 (R.I. 2011)). However, as

we have frequently stated, “this Court will review de novo any post-conviction relief decision

involving questions of fact or mixed questions of law and fact pertaining to an alleged violation

of an applicant’s constitutional rights.” Barros, 180 A.3d at 828 (quoting Hazard, 968 A.2d at

891). Nonetheless, “when we are called upon to conduct such a de novo review with respect to

issues of constitutional dimension, we still accord great deference to a hearing justice’s findings

of historical fact and to inferences drawn from those facts.” Id. (quoting DeCiantis v. State, 24

A.3d 557, 569 (R.I. 2011)).

                                                III

                                            Discussion

          Before this Court, the state argues that the hearing justice erred when she held that

Whitaker’s trial counsel rendered constitutionally deficient representation because he did not

request a jury instruction based on Rosemond for the aiding-and-abetting counts. The state also

argues that the hearing justice erred when she held that trial counsels’ performance was deficient

for failing to challenge the sufficiency of the evidence in support of an aiding-and-abetting

theory.




                                               -6-
       When examining claims of ineffective assistance of counsel, it is well settled that we will

adhere to the requirements set forth in Strickland v. Washington. Navarro, 187 A.3d at 325.

“[T]he benchmark issue is whether counsel’s conduct so undermined the proper functioning of

the adversarial process that the trial cannot be relied on as having produced a just result.” Barros,

180 A.3d at 828 (quoting Young v. State, 877 A.2d 625, 629 (R.I. 2005)).

       An applicant must satisfy two criteria to prevail on a claim of ineffective assistance of

counsel. Navarro, 187 A.3d at 326.        “First, the applicant must demonstrate that counsel’s

performance was deficient, to the point that the errors were so serious that trial counsel did not

function at the level guaranteed by the Sixth Amendment.” Id. (quoting Chapdelaine, 32 A.3d at

941). “This prong can be satisfied only by a showing that counsel’s representation fell below an

objective standard of reasonableness.” Id. (quoting Chapdelaine, 32 A.3d at 941). In evaluating

counsel’s performance, we keep in mind that there is “a strong presumption * * * that an

attorney’s performance falls within the range of reasonable professional assistance and sound

strategy[.]” Id. (quoting Rivera v. State, 58 A.3d 171, 180 (R.I. 2013)).

       “Second, the defendant must show that the deficient performance prejudiced the

defense.” Navarro, 187 A.3d at 326 (quoting Neufville v. State, 13 A.3d 607, 610 (R.I. 2011)).

Specifically, the second prong of Strickland requires the applicant to “demonstrate that the

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.” Barros, 180 A.3d at 829 (quoting

Page v. State, 995 A.2d 934, 943 (R.I. 2010)). In other words, the applicant must show that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (emphasis in original) (quoting Page, 995 A.2d at




                                                -7-
943). We have held that “[t]his is a ‘highly demanding and heavy burden.’” Id. (quoting Knight

v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).

                                                 A

                                    Rosemond’s Applicability

       The state argues that trial counsel did not render deficient representation by not seeking a

Rosemond jury instruction for the aiding-and-abetting charges.            The state contends that

Rosemond should not be given retroactive effect because (1) the ruling in that case did not come

into existence until nine years after the trial in this case, and (2) the Supreme Court of the United

States did not specify its retroactivity to cases on collateral review. Moreover, the state posits

that Whitaker cannot be entitled to postconviction relief under Rosemond when there is evidence

that he brought a weapon to the scene of the crime himself and that he discharged that weapon.

       In Rosemond, the defendant participated in a “drug deal gone bad” in which either he or

one of his confederates fired a weapon. Rosemond, 572 U.S. at 67. As a result of the uncertainty

as to who discharged the firearm, the United States charged the defendant with violating 18

U.S.C. § 924(c), which prohibits “us[ing] or carry[ing]” a firearm “during and in relation to any

crime of violence or drug trafficking crime[,]” as well as aiding and abetting that offense under

18 U.S.C. § 2. Id. at 68. The defendant was convicted and filed an appeal to the United States

Court of Appeals for the Tenth Circuit, which affirmed his conviction. Id. at 69. In vacating the

defendant’s conviction, the Supreme Court, on the defendant’s petition for writ of certiorari, first

noted that the federal aiding-and-abetting statute derives from common-law standards for

accomplice liability, and that “a person is liable under [18 U.S.C.] § 2 for aiding and abetting a

crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the

intent of facilitating the offense’s commission.” Id. at 70, 71. The Court acknowledged that an




                                                -8-
aider and abettor’s conduct need only facilitate one element of the principal crime. Id. at 74, 75

(“In helping to bring about one part of the offense (whether trafficking drugs or using a gun),

[the defendant] necessarily helped to complete the whole. And that ends the analysis as to his

conduct.”).

       However, with respect to proving mens rea, the Supreme Court held that a defendant’s

intent must extend to the entire principal offense to be convicted of an aiding-and-abetting crime.

Rosemond, 572 U.S. at 77-78. In connection with 18 U.S.C. § 924(c), the Supreme Court stated:

               “An active participant in a drug transaction has the intent needed to
               aid and abet a § 924(c) violation when he knows that one of his
               confederates will carry a gun. In such a case, the accomplice has
               decided to join in the criminal venture, and share in its benefits,
               with full awareness of its scope—that the plan calls not just for a
               drug sale, but for an armed one.” Id.

The Supreme Court further stated that, under 18 U.S.C. § 924(c), the defendant’s knowledge of

the presence of a firearm must be advance knowledge; in other words, “[w]hen an accomplice

knows beforehand of a confederate’s design to carry a gun, he can attempt to alter that plan or, if

unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the

venture that shows his intent to aid an armed offense.” Id. at 78 (emphasis in original).

       We note, however, that Whitaker was convicted not under federal law, but under Rhode

Island’s aiding-and-abetting statute for the principal crimes of murder, robbery, and the weapons

offenses. General Laws 1956 § 11-1-3 states:

               “Every 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.”




                                               -9-
To convict a defendant as an aider and abettor under Rhode Island law, “the circumstances must

establish that a defendant shared in the criminal intent of the principal [and that there was] a

community of unlawful purpose at the time the act [was] committed.” State v. Delestre, 35 A.3d

886, 895 (R.I. 2012) (quoting State v. Gazerro, 420 A.2d 816, 828 (R.I. 1980)). The prosecution

must also “present some evidence that a defendant ‘participat[ed] in the criminal act in

furtherance of the common design, either before or at the time the criminal act is committed.’”

Id. (quoting Gazerro, 420 A.2d at 828). However, these “standards do not require * * * that the

accused must foresee the consequences of such unlawful acts.” Id. (quoting State v. Diaz, 654

A.2d 1195, 1202 (R.I. 1995)). Under Rhode Island law, “(only) if [the] defendant knowingly

and intentionally aided and abetted [the crime] could he be held responsible for the natural, or

reasonable, or probable consequences of that act.” Id.; see also State v. Lambert, 705 A.2d 957,

963 (R.I. 1997) (holding that a jury instruction that stated that “[a] person who aids or abets is

held responsible for the natural, or reasonable, or probable consequences of any act that he

knowingly and intentionally aided or in which he assisted or participated” had “adequately

summarized and instructed on the applicable law of Rhode Island on aiding and abetting”).

       In our opinion, Rosemond plows no new constitutional ground and applies only to 18

U.S.C. § 924(c) and the federal aiding-and-abetting statute. It has no impact on state law. Other

states and federal circuit courts are in agreement with this principle. See Hicks v. State, 759

S.E.2d 509, 514-15 n.3 (Ga. 2014) (noting, in a case involving state crimes, that Rosemond

“arose under federal law and thus does not control here”); State v. Ward, 473 S.W.3d 686, 693

(Mo. Ct. App. 2015) (“Nothing in Rosemond, suggests that its holding rests on any constitutional

requirement or has any application to state criminal laws on accomplice liability; rather, the

Court’s analysis was merely a question of federal interpretation of the federal aiding and abetting




                                              - 10 -
statute. As such, it does not control here even where the federal statute and state aiding and

abetting statutes are similar.”). 3

        Whitaker cites to caselaw from the United States Court of Appeals for the First Circuit

that was already in existence at the time that this case was tried in support of his contention that

the First Circuit followed Rosemond’s analysis even before Rosemond was decided. However, it

is significant that the cases cited by Whitaker were also interpreting 18 U.S.C. § 924(c) and the

federal aiding-and-abetting statute and for those same reasons are inapplicable to this

jurisdiction’s aiding-and-abetting statute. See United States v. Medina-Román, 376 F.3d 1, 5-6

(1st Cir. 2004) (“Knowledge is the central element of the crime of aiding and abetting the

carrying or use of a firearm in violation of [18 U.S.C.] § 924(c)(1). To support aiding and

abetting criminal liability under 18 U.S.C. § 2, that knowledge cannot be mere knowledge of a

likelihood that a firearm will be carried or used but rather must amount to a practical certainty of

the other’s carrying or use.”); United States v. Spinney, 65 F.3d 231, 239 (1st Cir. 1995) (under

18 U.S.C. § 924(c), the government has the burden of providing evidence “suggesting that

firearms were actually contemplated in the planning stages, or that [the aider and abettor] had

any actual knowledge that [the principal] would be armed”).           Likewise, United States v.

Encarnación-Ruiz, 787 F.3d 581 (1st Cir. 2015)—upon which the hearing justice in the present

3
  We also note the following unpublished opinions which we do not cite for precedential value,
but by way of example. See Cordero v. United States, No. 15-530, 2015 U.S. App. LEXIS
23112, at *2 (2d Cir. Mar. 19, 2015) (“Rosemond does not set out a rule of constitutional law;
however, even if that opinion is deemed to have announced a constitutional rule, it has not been
made retroactive to cases on collateral review by the Supreme [Court].”); Hughes v. Epps, 561
Fed. App’x. 350, 354 n.4 (5th Cir. 2014) (noting that Rosemond does not apply to state law
robbery crime); People v. Jordan, No. 326735, 2016 WL 5930006, at *2 (Mich. Ct. App. Oct.
11, 2016) (“Rosemond is limited to prosecutions for particular statutory federal offenses, is
irrelevant to this case, and does not change the aiding-and-abetting standard in Michigan.”);
State v. Dull, 372 Wis. 2d 458, 2016 WL 6271732, at *2 (Wis. Ct. App. Oct. 26, 2016) (“The
[C]ourt’s decision [in Rosemond] was based upon its interpretation of federal statutes, not
constitutional principles.”).


                                               - 11 -
case relied in deciding that Rosemond was not limited to double-barreled crimes—also

interpreted the federal aiding-and-abetting statute for the principal crime of producing child

pornography and thus is also not applicable here. See Encarnación-Ruiz, 787 F.3d at 584 (stating

that the defendant was charged with aiding and abetting under 18 U.S.C. § 2251(a) and 18

U.S.C. § 2). 4

                                                B

                  Rosemond’s Retroactive Application on Collateral Review

        Whitaker’s appeal was decided in 2013, and Rosemond was not decided until 2014.

Whitaker sought to have Rosemond apply retroactively, in his postconviction relief application, a

case on collateral review. We addressed the circumstances under which a new rule of law is to

be given retroactive application in Pailin v. Vose, 603 A.2d 738 (R.I. 1992). There, we adopted

the framework set forth by the Supreme Court of the United States in Sawyer v. Smith, 497 U.S.

227 (1990), Teague v. Lane, 489 U.S. 288 (1989), and Griffith v. Kentucky, 479 U.S. 314 (1987).

Pailin, 603 A.2d at 741. Relevant to this opinion, in Teague, the Supreme Court held that a new

rule for the conducting of criminal prosecutions should be given retroactive application to cases

on collateral review. Teague, 489 U.S. at 301. Specifically, “[t]he Court held that ‘a case

announces a new rule when it breaks new ground or imposes a new obligation on the States or

the Federal Government.’” Pierce v. Wall, 941 A.2d 189, 195 (R.I. 2008) (quoting Teague, 489

U.S. at 301). “Thus, ‘a case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.’” Id. (emphasis in original) (quoting

Teague, 489 U.S. at 301).



4
 The state also argues that Rosemond is inapplicable to Rhode Island’s “natural, or reasonable,
or probable consequences” aiding-and-abetting doctrine. However, because we rule that
Rosemond is inapplicable to state law, we need not, and do not, reach this argument.


                                              - 12 -
       It is our firm conclusion that Rosemond did not establish a new rule, nor did it impose a

new obligation on state law. See Hicks, 759 S.E.2d at 514-15 n.3; Ward, 473 S.W.3d at 693. 5

Also, the holding in Rosemond was dictated by established precedent, and nowhere in that

decision did the Supreme Court state that its holding broke “new ground.” See Rosemond, 572

U.S. at 76-78. The Supreme Court first observed that the federal aiding-and-abetting statute

“reflects a centuries-old view of culpability: that a person may be responsible for a crime he has

not personally carried out if he helps another to complete its commission.” Id. at 70. It then

reviewed “some basics about [the] aiding and abetting law’s intent requirement,” and noted that

it had “previously found [the] intent requirement satisfied when a person actively participates in

a criminal venture with full knowledge of the circumstances constituting the charged offense.”

Id. at 76, 77. The Court then stressed that “[t]he same principle holds here: An active participant

in a drug transaction has the intent needed to aid and abet a [18 U.S.C.] § 924(c) violation when

he knows that one of his confederates will carry a gun[,]” and it additionally held that the

defendant’s knowledge of a firearm must be advance knowledge. Id. at 77, 78 (emphasis

added). 6 Therefore, it is clear that the Court founded its decision in Rosemond on established



5
  We also refer back to the previously cited unpublished opinions, which have no precedential
value, but which we believe to be instructive. See Cordero, 2015 U.S. App. LEXIS 23112, at *2;
Hughes, 561 Fed. App’x. at 354 n.4; Jordan, 2016 WL 5930006, at *1; Dull, 2016 WL 6271732,
at *2.
6
   We also note that, although federal circuit courts have not discussed whether Rosemond
announced a new rule, some imply that it did not. See United States v. García-Ortiz, 792 F.3d
184, 190 (1st Cir. 2015) (“[T]his court had already been applying the ‘advance knowledge’
requirement for aiding and abetting a [18 U.S.C.] § 924(c)(1) crime prior to Rosemond.”); Goree
v. Chapa, 589 Fed. App’x. 275, 276 (5th Cir. 2015) (noting precedent under which the petitioner
was convicted “was consistent with Rosemond”); Berry v. Capello, 576 Fed. App’x. 579, 592
(6th Cir. 2014) (noting that the “Supreme Court did not state whether the principles explained in
Rosemond apply retroactively to convictions that are final under state law”). Additionally, an
overwhelming majority of federal district courts have found that Rosemond’s holding was
determined by existing precedent. See, e.g., Gonzalez v. Baltazar, 2017 WL 2175804, at *3 n.2
(M.D. Pa. May 17, 2017); Kerr v. United States, 2016 WL 958202, at *3 (E.D.N.C. Mar. 8,


                                              - 13 -
precedent, and it did not create a new rule that was to be retroactive to cases on collateral review.

See id.; Pierce, 941 A.2d at 195. 7

                                                 C

                                 Whitaker Himself Was Armed

       Moreover, Robinson and Isom each testified that, before the day of the incident, Whitaker

had shown them his .22 caliber pistol, and that, on the day of the incident, the three men traveled

to Whitaker’s home to retrieve the weapon because, as Robinson testified, Robinson was

concerned that Kennedy’s apartment was located in a dangerous neighborhood.                Robinson

testified that, later that evening while inside Kennedy’s apartment complex, Whitaker told him

he wanted to steal Jackson’s chain, and Robinson “told [Whitaker] that it wasn’t a good idea

[because] worse come to worse, shots are going to be fired.” According to Robinson, Whitaker

then replied, “I got it[,]” which, according to Robinson, meant that Whitaker had everything

“under control.”

       Richardson also testified that, once Whitaker was back inside Kennedy’s apartment, and

as the struggle ensued, “he reached into his coat and took out a gun” and “pointed it in the

direction of Joel [Jackson] and Brandon [Robinson.]” As we noted in Whitaker’s direct appeal,

“Robinson also testified that Whitaker drew his gun after he came back into the apartment,” and

“Isom testified that Whitaker had brought a weapon to the apartment.” Whitaker, 79 A.3d at 801,



2016); Cooper v. O’Brien, 2015 WL 6085717, at *4 (N.D.W. Va. Oct. 16, 2015); United States
v. Davis, 2015 WL 13721525, at *4 (D.S.C. Feb. 9, 2015).
7
  Although we are cognizant that the Seventh Circuit has held that Rosemond is applicable to
cases on collateral review, it is significant that that court recognized that Rosemond is applicable
only to 18 U.S.C. § 924(c) and the federal aiding-and-abetting statute, not state law. See
Montana v. Cross, 829 F.3d 775, 784 (7th Cir. 2016) (“Rosemond, which addressed the
requirements for criminal liability under [18 U.S.C.] § 924(c), is a substantive rule, and we
therefore shall apply it retroactively to cases on collateral review.”) (emphasis added). We thus
reiterate our reasoning above and find that Rosemond has no implications on state law.


                                               - 14 -
801 n.4. Both Toby and Robinson testified that the shots that were fired did not come from

Robinson’s gun. Moreover, an expert testified that the slugs taken from all three of the men who

were hit came from a .22 caliber weapon, the same type of weapon that Isom and Robinson

testified that Whitaker was carrying at the time. As this Court said in Whitaker’s direct appeal, a

jury certainly could have found, and did find, that Whitaker brought a gun to the scene of the

crime. See id. at 810. As other jurisdictions have held, Whitaker’s reliance on Rosemond, even if

the case was applicable here, would nonetheless be misplaced, because he would have already

had advance knowledge that a weapon was going to be used to commit the robbery. This is so

because he carried one himself. See Jefferson v. United States, 2017 WL 2819812, at *3-4 (N.D.

Miss. Jun. 28, 2017) (holding that, even if Rosemond was applicable, the defendant would

nonetheless have been convicted; citing to cases on direct appeal for summary of evidence in

ruling that not only did the defendant know that firearms would be used in commission of his

drug crimes, but “he actually provided firearms for others to use during the crimes”) (emphasis

in original); Jimenez v. United States, 2015 WL 4507764, at *2 (S.D.N.Y. July 23, 2015)

(“Rosemond would only affect the outcome of [a] proceeding if (1) [the defendant] himself did

not use, carry, and possess a firearm in relation to the robberies with which he was charged, and

(2) [the defendant] did not have advance knowledge that one of his confederates would use or

carry a gun during those robberies.”); United States v. Burwell, 79 F. Supp. 3d 1, 30 (D.D.C.

2015) (“Here, it is clear that Burwell himself carried a weapon during the commission of two of

the bank robberies and, thus, his reliance on Rosemond is misplaced.”). Thus, trial counsels’

performance was not deficient in failing to propose aiding-and-abetting jury instructions in line

with Rosemond because that case is simply inapplicable.




                                              - 15 -
                                                 D

                                   Sufficiency of the Evidence

       The state also maintains that trial counsels’ performance was not deficient because of a

failure to raise a challenge to the sufficiency of the evidence to charge Whitaker under an aiding-

and-abetting theory. To support this argument, the state directs us to the statement in our opinion

on Whitaker’s direct appeal that there was sufficient evidence for an aiding-and-abetting jury

instruction. See Whitaker, 79 A.3d at 807. The state also contends that, in his brief on direct

appeal, Whitaker conceded that there was sufficient evidence to charge him with an aiding-and-

abetting theory.

       We conclude that Whitaker’s trial attorneys did not provide deficient representation when

they did not challenge the sufficiency of the evidence to charge Whitaker under an aiding-and-

abetting theory. On direct appeal, Whitaker attempted to argue that there was insufficient

evidence for the jury to convict him under an aiding-and-abetting theory, but we ruled that this

issue had been waived because it was not raised before the trial justice. Whitaker, 79 A.3d at

805. However, in that appeal, Whitaker also argued, in a separate argument that was not waived,

“that there was insufficient evidence in the record to support an aiding-and-abetting instruction

because there is no evidence in the record to establish an action consistent with his supposed

criminal intent.” Id. at 807. In turning aside this argument, we stated the following:

               “The defendant overlooks, however, that the testimony of Isom
               and Robinson includes their statements that he arrived at the
               apartment armed, that before re-entering the apartment he
               expressed an interest in taking Jackson’s chain, that he and
               Robinson then re-entered the apartment, and that Robinson
               actually took Jackson’s chain. Further, Richardson testified that
               during the struggle over Robinson’s gun, she observed defendant
               draw a gun and aim it towards the scrum.




                                               - 16 -
               “We are of the firm opinion that, based on the evidence presented
               during the trial, it was not improper for the trial justice to instruct
               the jury on aiding and abetting.” 8 Id.

We hold that that evidence was also sufficient to convict Whitaker under an aiding-and-abetting

theory. 9 See id.; see also State v. Long, 61 A.3d 439, 446-47 (R.I. 2013). Accordingly, the

hearing justice erred when she held that trial counsel rendered ineffective assistance by failing to

challenge the sufficiency of the evidence with respect to an aiding-and-abetting theory.

                                                 IV

                                            Conclusion

       For the reasons set forth in this opinion, we quash the judgment granting postconviction

relief and reinstate Whitaker’s conviction with respect to the aiding-and-abetting counts for

felony murder (count one), robbery (count two), using a firearm in the commission of a crime of

violence (count seven), discharging a firearm in the commission of a crime of violence (count

eight), and committing a crime of violence while armed and having available a firearm (count

8
  We note that the trial justice did not give an aiding-and-abetting instruction, written or oral,
with respect to the felony murder charge. The jury verdict summary sheet, however, provided an
aiding-and-abetting charge for felony murder. Whitaker argued below that, had a jury
instruction in line with Rosemond been given regarding the felony murder charge, he would have
been acquitted of that charge. However, the robbery jury instruction—which was the underlying
charge for felony murder—contained an aiding-and-abetting instruction, and thus a reading of
the entire instructions as a whole would have not misled the jury. See Roach v. State, 157 A.3d
1042, 1049 (R.I. 2017) (“This Court examines the instructions in their entirety to ascertain the
manner in which a jury of ordinary intelligent lay people would have understood them, * * * and
* * * review[s the] challenged portions * * * in the context in which they were rendered.”)
(quoting State v. Long, 61 A.3d 439, 445 (R.I. 2013)).
9
  Moreover, we agree with the state that, in his direct appeal, Whitaker conceded that there was
sufficient evidence to charge him under an aiding-and-abetting theory. See Opening Brief of
Appellant, State v. Whitaker, 79 A.3d 795 (R.I. 2013) (No. 2007-145-C.A.), 2002 WL 11875284,
*7, *8 (“[N]o evidence other than the two cooperating witnesses’ allegations of an agreement -
rejected by the jury in its conspiracy verdicts - could possibly support a conviction based upon
aiding and abetting. * * * Apart from the brief testimony by Richard Isom and Brandon
Robinson about the conversation that the three men had in the hallway regarding robbing Joel
Jackson, which formed the basis for the conspiracy instruction, there is nothing else to support
the trial justice instructing the jury on aiding and abetting.”) (emphasis added).


                                               - 17 -
nine). The papers in this case are remanded to the Superior Court with our decision endorsed

thereon.




                                           - 18 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Kendall Whitaker v. State of Rhode Island.
                                     No. 2016-102-M.P.
Case Number
                                     (PM 14-5309)
Date Opinion Filed                   January 17, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Patricia A. Hurst
                                     For Petitioner:

                                     George J. West, Esq.
Attorney(s) on Appeal                For Respondent:

                                     Aaron L. Weisman
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
