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Whitaker v. State

Supreme Court of Rhode Island

January 17, 2019

Kendall Whitaker
State of Rhode Island.

          Providence County Superior Court, (PM 14-5309) Associate Justice Patricia A. Hurst

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

          For Respondent: Aaron L. Weisman Department of Attorney General

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


          Francis X. Flaherty Associate Justice.

         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.


         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 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 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 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 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.


         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 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 ...

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