Preview:

Supreme Court
No. 2008-156-Appeal.
(PM 98-899)
Anthony DeCiantis                                                     :
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 Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




Supreme Court
No. 2008-156-Appeal.
(PM 98-899)
Anthony DeCiantis                                                                                      :
v.                                                                                                     :
State of Rhode Island.                                                                                 :
Present: Suttell, C.J., Flaherty, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court.   The applicant, Anthony DeCiantis, appeals from a
judgment of the Superior Court dismissing his application for postconviction relief.   On appeal,
the  applicant  contends  that  the  hearing  justice  erred  in  four  respects:                      (1)  in  incorrectly
“characterizing” the applicant’s claim as being “that the state wrongfully failed to disclose only
one of William Ferle’s charged crimes;”1  (2) by erroneously “ruling that the [s]tate had no
obligation to inform the [applicant] of William Ferle’s uncharged crimes;” (3) by erroneously
“holding [applicant] to a higher standard of ‘materiality,’ * * * than the standard required for the
[s]tate’s  deliberate  withholding  of  exculpatory  evidence;”  and                                   (4)  by  finding  that  no
prosecutorial misconduct had been committed in the applicant’s case.  For the reasons set forth in
this opinion, we affirm the judgment of the Superior Court.
1                                                                                                      As will be discussed at greater length, infra, William Ferle was one of the prosecution’s
witnesses at applicant’s criminal trial.
- 1 -




I
Facts and Travel
A
The Applicant’s Murder Trial
The applicant, Anthony DeCiantis, first appealed to this Court from a conviction by a
Superior Court jury on June 7, 1984; he was convicted of murder in the first degree, the victim of
that murder being one Dennis Roche.   As a result of that conviction, Mr. DeCiantis received a
life sentence—to be served consecutively to other sentences that he was then serving.   Over a
quarter of a century ago, this Court affirmed the judgment of conviction. State v. DeCiantis, 501
A.2d 365 (R.I. 1985) (hereinafter DeCiantis I).
In DeCiantis I, 501 A.2d at 365, we summarized the testimony and evidence presented at
applicant’s criminal trial—stating that the “state’s evidence established a motive for the killing
and linked [applicant] to the murder of Dennis Roche * * * .”   One witness testified at the
murder trial that he saw two men “force the victim into a car driven by Anthony DeCiantis.”   Id.
Three other witnesses “testified about separate occasions on which [applicant] had admitted to
killing Roche.”   Id. at 366.   One of those three witnesses was William Ferle.   As it is the trial
testimony of Mr. Ferle that is the primary focus of applicant’s appeal to this Court from the
denial of his application for postconviction relief, we shall provide a brief summary of that
testimony to the extent necessary to consider applicant’s appellate arguments.
1. The Testimony of William Ferle2
William Ferle testified for the prosecution at the murder trial of Mr. DeCiantis in 1984;
he stated that, as of the time of trial, he had known Mr. DeCiantis for over five years.   Mr. Ferle
2                                                                                                      Our summary of Mr. Ferle’s testimony is derived from a portion of the original trial
transcript, which was appended to applicant’s brief to this Court.
- 2 -




testified that, on an evening in December of 1981, he saw applicant at a nightclub.  According to
Mr. Ferle, it was on that evening at the nightclub that applicant told him that he had killed Mr.
Roche.   Mr. Ferle also testified that, on more than one occasion, Mr. DeCiantis had told him his
reason for having killed the victim; it was the testimony of Mr. Ferle that applicant stated that
“Dennis Roche kept annoying him and throwing it in his face * * * about his brother being killed
on Halloween night and that it might be his turn the next coming Halloween night.”   Mr. Ferle
further testified that, on a few other occasions, applicant repeated his admission that he had
committed the murder.
On cross-examination by defense counsel, Mr. Ferle was confronted with evidence of a
1982 verdict finding him guilty on charges of conspiracy and bank fraud.   Mr. Ferle admitted to
same, and he admitted that he had been sentenced to one year—six months to serve and six
months of probation.   Mr. Ferle also admitted on cross-examination during the murder trial that
there was then pending a criminal information charging him with obtaining money under false
pretenses.   Mr. Ferle was also confronted with a pending indictment charging him with the
robbery of “the 14 Carat Gold Store,” and he admitted that he had been indicted on that charge.
Mr. Ferle also admitted that, pursuant to another indictment, he was facing a murder charge.
Finally, Mr. Ferle admitted that he had been indicted for the crime of arson in the first degree in
connection with the burning of a farm in Cranston.
After defense counsel had confronted Mr. Ferle with these various pending charges, the
following exchange between defense counsel and Mr. Ferle took place:
“Q      So, are you telling us sir, that you are not disturbed about
the  fact  that  you  have  three  indictments  pending  against  you
charging capital offenses in this [s]tate?
“ * * *
- 3 -




“A      Well, I guess everybody once .. would be disturbed but that
ain’t why I am here. I just came here to tell the truth.
“Q      Out of the goodness of your heart because you want to help
the system?
“A      Well, I gave my word that I would tell the truth of .. about
any murders that I was aware of and that is what I did and that is
all I am here is to tell the truth.”
Defense counsel then asked Mr. Ferle what promises and inducements had been offered
to him in exchange for his testimony.   Mr. Ferle indicated that nothing had been promised to
him.   He said that he had let it be known what he “would like to happen,” but he testified that
there had not yet been any “final commitments.”   When asked in a follow-up question what he
“would like to happen,” Mr. Ferle stated that he was interested in protection for him and for his
family due to the fact that he was providing testimony “against top organized crime figures,”
who he said would kill him if they could “get to [him].”   He added that he was also interested in
serving whatever time he would have to serve in the custody of the State Police and not in
prison—“because they can get to you in a prison.”
When questioned again whether or not the “pendency of charges” against him concerned
him, Mr. Ferle reiterated that he was “here to tell the truth.”   He stated that he had “made it [his]
business that [he] wanted to clean up [his] life and just do the right thing.”  When further pressed
by defense counsel as to whether or not he had made inquiries about what he could expect “by
way of sentence,” Mr. Ferle responded as follows:
“I was just depressed at the time and everything and I wasn’t
looking for any bargain.   I wasn’t demanding and I wanted this or
that, I just said, ‘I’d like to be protected’ and see what could be
done for me. I didn’t really go into it and I talked it over with my
wife and even my twelve year old daughter.   It’s something we
decided to do the right thing and so I wasn’t really ... as long as I
knew they were safe and they were happy that is mostly what I was
concerned about.”
- 4 -




Mr. Ferle was again asked by defense counsel whether he was concerned that he would
go to prison “for all these crimes,” and he responded as follows:
“Everybody cares, but whatever has to happen is going to happen.
I can’t change that.   I hope it doesn’t happen, but I don’t know
what’s  going  to  happen.  All  I  am  here  is  to  tell  the  truth.”
(Emphasis added.)
Defense counsel also inquired on cross-examination with respect to whether or not Mr.
Ferle was receiving or would receive in the future any stipend or monetary support.    The
following exchange occurred:
“Q       Do you expect to go into the Federal Witness Protection
Program with a stipend or something every month .. a salary?
“ * * *
“A      That really hasn’t been discussed. I am in State Police
custody.  I haven’t talked about any Federal programs.
“Q      Who’s supporting you now?
“ * * *
“A      I am in the custody of the Rhode Island State Police.
“Q      Who supports your family?
“ * * *
“A      They’re also in the State Police custody.
“ * * *
“Q      Right now, you are being supported by the taxpayers of the
State of Rhode Island?
“ * * *
“A      I don’t know that I am. I am in State Police custody.”
- 5 -




B
The Instant Application for Postconviction Relief
In February of 1998, Mr. DeCiantis filed his third3 application for postconviction relief,
which  application  is  the  subject  of  the  present  appeal.  Mr.  DeCiantis  filed  an  amended
application shortly thereafter, in which he set forth allegations of “intentional withholding of
exculpatory evidence” and “prosecutorial misconduct.”4
C
The Hearing on the Application
On December 5 and 13, 2005 and on January 23, 2006, a hearing was held in the Superior
Court for Providence County with respect to Mr. DeCiantis’ application for postconviction relief.
We summarize the testimony from that hearing that is pertinent to applicant’s contentions on
appeal.
1. The Testimony of David Leach
David Leach, who was called as a witness by applicant’s attorney, testified that in 1984
he was a prosecutor who was involved in the prosecution of Mr. DeCiantis for the murder of Mr.
Roche.  He testified that in that year he had contact with William Ferle, who Mr. Leach indicated
was acting as an informant against “many people involved in what we think of as organized
crime * * * .”  Mr. Leach further described Mr. Ferle as “a low-level kind of an associate.”
3                                                                                                     Mr. DeCiantis has previously filed two other applications for postconviction relief; both
were denied and dismissed by this Court on appeal. DeCiantis v. State, 666 A.2d 410 (R.I. 1995);
DeCiantis v. State, 599 A.2d 734 (R.I. 1991).
4                                                                                                     Mr.  DeCiantis  made  several  other  allegations  in  his  amended  application  for
postconviction relief that are not relevant to the issues raised in the instant appeal and that,
therefore, need not be summarized.
- 6 -




When asked whether or not he would “meet with Mr. Ferle from time to time to discuss
what he knew and what evidence he could give,” Mr. Leach responded that he had met with Mr.
Ferle to discuss potential testimony, but he added that he “was not part of any debriefing of [Mr.
Ferle] where any original matters came out that had not previously been brought to  [his]
attention by the State Police.”  He further explained as follows:
“You know, something would come to the State Police’s attention,
they would look at it, they would bring it to my attention and [my
co-counsel’s], who was working on these cases, as well, was then
Assistant  Attorney  General,  and  the  information  would  be
imparted to us and then there were times where we did speak with
him directly, but we were not debriefing him.”
The  applicant’s  attorney  then  began  to  inquire  into  Mr.  Leach’s  knowledge  and
recollection as to how Mr. Ferle came into police custody and as to how he was cultivated as an
informant and witness.   Mr. Leach confirmed that Mr. Ferle was “given bail” and, to the best of
Mr. Leach’s memory, was then transferred to protective custody for, among other reasons,
facilitating his “availability as a potential witness.”   With respect to those arrangements for Mr.
Ferle, it was Mr. Leach’s testimony that, while his own position was not such that he could
authorize such arrangements on his own, he nevertheless “had some input into the process.”
Mr. Leach was next confronted with applicant’s Exhibit  1, which was a document
entitled “State’s Supplemental Response to Defendant’s Request for Discovery and Inspection,”
pertaining to Mr. DeCiantis’ murder trial.   In that document the state identified Mr. Ferle as a
witness, and a Bureau of Criminal Identification  (BCI) record pertaining to Mr. Ferle was
attached.    The following exchange took place between applicant’s attorney and Mr. Leach,
regarding Mr. Ferle’s BCI record:
“Q      At the time this was provided to the defense, which was
February of                                                                                            ‘84, was this -- did this BCI comprehensively reflect
- 7 -




all of the criminal activity of Mr. Ferle that you, yourself, were
aware of at that time?
“A      I would probably say no. This is not -- this was not in the
computerized age. This was a typewritten card, and I am well --
although, I don’t have the timeline exactly in mind, I know there
were a number of offenses that he may not have been charged or
did not come up until some later point so they were not actual
charges on his record I would assume that you may be referring to.
“Q      All right. Are you aware of having disclosed to the defense
any other crimes where Mr. Ferle admitted his involvement other
than what appears on the BCI?
“A      I’m not -- I’m not sure of that because I don’t know in
terms of the timeline where Mr. Ferle had testified in other cases
prior to that in which the matters had become public or not so I
don’t know the answer to that right now.”
Mr.  Leach  also  testified  as  follows  regarding  the  extent  of  his  knowledge  of  any
arrangements that had been made with Mr. Ferle for the purpose of obtaining his testimony:
“[M]y understanding is, from the very beginning, his main concern
was that he not be in an ACI situation and that he asked that of the
State Police. And, of course, they were not in authority to grant
that but said they would do the best they could for him. That was
conveyed to the members of the Attorney General’s Office who
also indicated that that was not something that could be comitted
[sic] to * * * .”
Mr. Leach then provided further testimony to the effect that a document  “which set down
specifics of a disposition which went before the court” was “not something that was drawn up or
agreed to at the time that [he] was involved in the case.”
With respect to whether or not Mr. Ferle would receive an “advantageous disposition,” it
was Mr. Leach’s testimony that he “[knew] that [Mr. Ferle] hoped” for such a disposition but
that Mr. Ferle “wouldn’t have any commitment through [him] or [his co-counsel] or * * * a
Deputy Attorney General, that that would happen * * * .”   (Emphasis added.)
- 8 -




Mr. Leach was then questioned again regarding what he had or had not disclosed to Mr.
DeCiantis’ trial attorney.   Mr. Leach was asked whether he had “disclosed to the defense only
that information shown on the BCI.”  He responded as follows:
“I don’t know that to be true. I mean, I read some of the cross-
examination of Ferle by [applicant’s trial attorney], and it’s clear to
me that there were other crimes and instances which may not have
been indicted at that point that he was crossing on. So it was clear
to me, from what I read to refresh my recollection, that he was
aware of them because he was asking questions about them. So I’m
not sure if they were in another document. I’m not sure if they
were public knowledge because Ferle had already testified to them
or not. I just don’t know at this point.”
Shortly thereafter, the following exchange occurred:
“Q      But the question, Mr. Leach, is simple. Did you know Mr.
Ferle had admitted to involvement in more than the three cases that
we just referred to?
“A      I can only answer it by saying that I have no present
recollection but, looking at the transcript, my sense is that I must
have because my sentence ends in a place where it wouldn’t end if
I hadn’t been asked a question at that point.
“Q      So  you  must  have  had  knowledge  of  more  than  three,
correct?
“A      I would have to say I assume that that is the case from -”
Mr. Leach was then asked whether or not he had disclosed to the defense Mr. Ferle’s
involvement in a robbery referred to as the “Heritage Loan Robbery.”5   Mr. Leach testified that
he could not “specifically answer that one way or the other;” he also stated that he believed that
applicant’s  trial  attorney  was  aware  of  those  other  cases,  but  that  he  did  not          “remember
specifically  how  that  information  was  transmitted * * * .”    Similarly,  when  asked  about
5                                                                                                    The Heritage Loan Robbery is mentioned in the debriefing statement that constitutes
applicant’s Exhibit 2.
- 9 -




disclosure of Mr. Ferle’s alleged involvement in the murder of one Ronald McElroy, Mr. Leach
testified that he had “no specific recollection []” and that he did not “know one way or the other
any particular discussion [that he] might have had with [applicant’s trial attorney] and/or anyone
else about it.”
The applicant’s attorney also questioned Mr. Leach with respect to his understanding of
his obligation to disclose exculpatory evidence.   Mr. Leach responded that “anything that was
exculpatory would be absolutely something that one would inform defense counsel about;” he
also answered in the affirmative when asked whether the obligation to disclose continues “to
points beyond trial.”   In addition, Mr. Leach stated as follows: “I think the matters that you’re
talking about, as best I understand, are matters that would have to do with the impeachment of
Mr. Ferle * * * .”
Mr.  Leach  was  then  confronted  with  applicant’s  Exhibit                                        4,  which  was  a   “State’s
Supplemental  Answer”  pertaining  to  the  criminal  prosecution  of  a  person  other  than  Mr.
DeCiantis; that Supplemental Answer, dated September 12, 1984, was signed by Mr. Leach’s co-
counsel in that other case  (who was also his co-counsel in Mr. DeCiantis’ case).    In that
document, it is stated that  “[d]uring the course of the de-briefing of William Ferle, he has
indicated  his  involvement  in  the  following  criminal  activity.”    The  Supplemental  Answer
proceeded to itemize six cases concerning which indictments by grand jury had been issued, two
cases that were considered “continuing investigations by the State Wide Grand [Jury],” nine
cases as to which the statute of limitations had run, three cases “involving organized crime
figures as victims where no complaining victim had come forward,” and four cases of robbery in
which “William Ferle understands that he will testify * * * and is a potential defendant * * * .”
- 10 -




When asked whether the September  12,  1984 Supplemental Answer  “refers to many
more than the three crimes that [defense counsel] cross-examined Ferle about in Mr. DeCiantis’
trial in June,” Mr. Leach responded in the affirmative.  He was then asked whether it was “fair to
say that all of the information of [those] crimes contained in the supplemental answer wasn’t
learned by the [s]tate just shortly before [that] trial.”   In response, Mr. Leach stated that he
“would have to assume, no,” but he added that he did not “have any recollection as to when the
different incidents that are mentioned came to the attention of the State Police.”
Mr. Leach was also confronted with applicant’s Exhibit 7, entitled “Memorandum of
Agreement.”   That document encapsulated the agreement between Mr. Ferle, the Rhode Island
Attorney General, and the Rhode Island State Police.  The twelfth provision of that agreement set
forth an itemized list of “sums of money” that Mr. Ferle had received “for his support in a ‘safe’
house and for the support of his wife and child.”   Mr. Leach testified that he did not believe that
those amounts were disclosed to Mr. DeCiantis’ defense counsel; he added that he did not
“believe [he] knew them at the time,” and he further stated that the Memorandum of Agreement
was prepared after he was no longer in the Attorney General’s Office.
When asked whether or not he felt that it was “incumbent” upon him to “inquire as to
what was being spent for Ferle’s support” so that he could “provide this information to the
defense,” Mr. Leach testified that he did not feel that making such an inquiry was incumbent
upon him.   He explained that, to his knowledge, “this was something that was done for [Mr.
Ferle’s] safety and protection and was not something that [he] envisioned as a promise or a
reward.”
Mr. Leach was also asked whether he had been the subject of court decisions involving
the withholding of evidence from the defense.   Mr. Leach confirmed that he “was the prosecutor
- 11 -




in several cases that [applicant’s attorney was] referring to which involved issues involving a
Rule 16, each one being a different issue, yes.”
During Mr. Leach’s cross-examination by the state, he reiterated that, at the time of Mr.
DeCiantis’ trial, he was not in a position to “set any sort of policy as it related to the treatment of
confidential  informants”  or                                                                             “protected  witnesses.”    Mr.  Leach  also  reiterated  his  earlier
testimony, by stating that he “was not physically present at any time going through [Mr. Ferle’s]
debriefings.”     He further testified that he purposefully refrained from interviewing parties who
had not yet admitted to crimes and from taking initial statements from potential defendants so as
not to “make [him]self a witness to a trial.”
On cross-examination, Mr. Leach was again shown applicant’s Exhibit  1  (viz., the
“State’s Supplemental Response to Defendant’s Request for Discovery and Inspection” with Mr.
Ferle’s BCI record appended thereto).    He confirmed  that there  was no  reference  on the
appended BCI record to a pending murder charge or to a pending robbery charge.   Mr. Leach
was then shown portions of the transcript of Mr. DeCiantis’ trial where defense counsel was
cross-examining Mr. Ferle relative to a pending robbery charge and a pending murder charge.
Mr. Leach confirmed that he did not object to either line of questioning.
Mr. Leach was also shown a portion of the trial transcript in which he was asked by the
trial justice whether or not Mr. Ferle had been given any promises.   Mr. Leach read his response
from the transcript:
“I would indicate, Your Honor, he has nothing in writing he has
indicated to come forward.   He is in Protective Custody, and he
does not know what the ultimate disposition of his cases will be
and the cases for which he has been indicted.   He has testified in
the Grand Jury on all of those cases and waived all of his Fifth
Amendment privileges.”
- 12 -




It was then Mr. Leach’s testimony at the postconviction relief hearing that he had not seen or
read anything which would suggest to him that his answer to the trial justice at the time of the
DeCiantis trial had not been truthful.
Mr. Leach was then shown the state’s Exhibit A, which he identified as a document
furnished by the state to defense counsel in a different criminal proceeding.   The document was
entitled “State’s Answer to Defendant’s Motion to be Furnished with Evidence Favorable to the
Accused.”   That document indicated that “[n]o promises, rewards or inducements, other than
personal safety and the safety of his family have been made to William R. Ferle * * * .”   Mr.
Leach confirmed that the document was dated May 21, 1984.
2. The Testimony of Major Michael Urso
Michael Urso, who was also called as a witness by applicant’s attorney, testified that he
held the rank of major when he retired from the Rhode Island State Police.   He stated that in
1984 he was a lieutenant, and he confirmed that he was involved in the “handling” of Mr. Ferle
as a witness.
Major Urso confirmed that Mr. Ferle had been in custody for at least six months prior to
the trial of Mr. DeCiantis in June of 1984.   When asked whether, in “the first two months that
[Mr. Ferle] was in custody,” the “majority” of Mr. Ferle’s crimes were disclosed to Major Urso,
the retired police officer testified that he could not “say that for sure.”   Major Urso explained his
answer as follows:
“Because  as  we  went  along,  he  would  think  of  things  that
happened, and as time went on, he would think of other crimes that
he just didn’t think of, and he would bring them up at that point,
and then we would document them.”
Upon further questioning by applicant’s attorney, Major Urso indicated that he could not “put a
period of time” or indicate in which month it was when Mr. Ferle made admissions as to
- 13 -




everything that he had done.   It was also Major Urso’s testimony that “there was no time set” by
which time Mr. Ferle had to disclose all of his criminal involvement.   Upon further inquiry by
applicant’s attorney, Major Urso stated that it was “very possible” that, by June of 1984, Mr.
Ferle would have mentioned every crime in which he had been involved.   Major Urso also
testified that, according to his recollection, a representative of the Attorney General was not with
him during any debriefings during which Mr. Ferle’s disclosures were made, thereby confirming
Mr. Leach’s testimony to that effect.
Major Urso was confronted with the transcript of his own testimony on August 29, 1984
at the trial of a different criminal case.   Major Urso was referred to a portion of the transcript of
that trial where he was asked whether he had told Mr. Leach and his prosecutorial co-counsel
that money was being supplied for Mr. Ferle’s “rent and the like” and where he responded that
he believed that he had done so; he added that his best estimate as to when he provided the
prosecutors with that information would have been January of 1984.   Major Urso stated that he
recalled giving that testimony; he further stated that, if he said it at that time, then he was
confident that it was true.   Major Urso was then questioned about specific sums of money and
about support that Mr. Ferle received.
Major Urso was also questioned about applicant’s Exhibit  2—a debriefing statement
made by Mr. Ferle in connection with the Heritage Loan Robbery.   He identified the exhibit as a
report prepared by Detective Anthony Pesare, dated January 24, 1984.   It was Major Urso’s
testimony concerning that report that, “prior to the case going to the Grand Jury, it would be
given, more than likely, to the Attorney General.”   When asked whether he recalled that an
indictment of Mr. Ferle for that robbery was returned in February of 1984, Major Urso testified
that he did not have a recollection of that date.
- 14 -




Major Urso was also shown applicant’s Exhibit 3, which he identified as a debriefing
statement  made  by  Mr.  Ferle  relative  to  a  particular  murder.    He  acknowledged  that  the
debriefing statement was dated February 29, 1984, but he testified that he did not know when
that debriefing statement would have been communicated to the Attorney General’s Office.
Major Urso was then asked by the hearing justice whether he believed that it was the custom and
practice of the State Police “to have those kind[s] of discussions with members of the Attorney
General’s staff prior to its submission of the [s]tate to bring it to Grand Jury * * * .”  Major Urso
responded in the affirmative.
Major Urso was then shown applicant’s Exhibit  4  (the state’s Supplemental Answer
pertaining  to  another  criminal  prosecution,  which  contained  a  list  of  Mr.  Ferle’s  criminal
activities); he was asked to confirm that all of the crimes listed on that exhibit had come to light
in the debriefing sessions conducted by Major Urso and his colleagues, and he once again
responded in the affirmative.
On cross-examination by the state, Major Urso testified that, in many cases, after a
debriefing, police follow-up would be required.   And he confirmed that it was “fair to say” that
“police  follow-up                                                                                       [was]  necessary  before  indictments  would  issue”  with  respect  to  the
debriefings which were the subject of applicant’s Exhibits 2 and 3.   Major Urso also confirmed
on cross-examination that, at “some point,” the Attorney General’s Office was made aware of the
fact that Mr. Ferle was in custody, that there was “some sort of * * * set up that the State Police
had with him,” in which he was being financially supported.
Major Urso testified that, while Mr. Ferle was in the custody of the State Police, it was
never contemplated that he would hold a job—because, in the Major’s words, “his life was in
danger.”   Major Urso confirmed that, during the period in which Mr. Ferle was being debriefed
- 15 -




and in which he was offering testimony, he was “being supported in a custody scenario by the
State Police.”   He testified that a fund was tapped to assist with that support; he added that the
money in that fund came from the New England State Police Compact Association.   Major Urso
also testified that the State Police made mortgage payments for Mr. Ferle until his house was
sold; he also confirmed that there had been a plan to use the proceeds from the sale of the house
to repay the New England State Police Compact Association.
On redirect, Major Urso confirmed that, in a case such as applicant’s, which was not a
State  Police  case  but  a  Providence  Police  case,  some  other  agency  would  be  doing  the
investigative work.  Major Urso then confirmed that, in some cases, “the State Police would have
no interest in holding back information;” he said that, instead, “the interest would be getting it as
quickly as possible to the Attorney General to decide how best to prosecut[e].”6
3. The Testimony of Anthony DeCiantis
Anthony DeCiantis was the last witness to testify during the hearing on his application
for postconviction relief.    The testimony elicited on direct and cross-examination primarily
concerned when Mr. DeCiantis acquired the information necessary to allege that the prosecution
had withheld exculpatory evidence.7   On cross-examination, counsel for the state also elicited
testimony to the effect that applicant’s trial attorney had passed away prior to the postconviction
6                                                                                                       After the testimony of Major Urso, applicant renewed his  “Motion for the State to
Compel the Process of a Witness,” in which he had moved the court “to order the State of Rhode
Island to compel process for the purpose of a hearing and/or deposition of William Ferle who
was placed in State Police Custody.”  After hearing argument from both sides, the hearing justice
denied the motion.
7                                                                                                       The record indicates that, at one point, the state moved to dismiss Mr. DeCiantis’
application on the basis of the doctrine of res judicata.   We decline to address the merits of that
contention in this opinion, although we are mindful that, in view of the fact that this is
applicant’s third application for postconviction relief, that doctrine may very well be applicable
in the future should applicant file subsequent applications.
- 16 -




relief hearing and so was unavailable to testify regarding what information he did or did not have
at the time of Mr. DeCiantis’ trial.
D
The Hearing Justice’s Decision
A written decision, denying the application for postconviction relief, was issued on
March 7, 2007.   We summarize below only those portions of the hearing justice’s decision that
pertain to the issues that applicant has raised on appeal.
With respect to applicant’s contention that the prosecution withheld information about
specific promises, rewards, and inducements made to Mr. Ferle, the hearing justice found as
follows:
“The record at trial clearly reveals that the [s]tate disclosed that
Ferle was in the custody of the Rhode Island State Police, and that
while he hoped he and his family would remain in custody, and
that, if he were to serve any jail time, that he would do so in the
custody of the Rhode Island State Police, at the time he had been
given no promises for his pending cases.”   (Emphasis in original.)
The hearing justice also noted that, at Mr. DeCiantis’ trial, Mr. Ferle “was subject to
thorough cross-examination regarding these rewards and inducements;” the hearing justice also
noted that counsel for applicant had “explored at length the basis of financial support of the
witness and his family while in the custody of the Rhode Island State Police.”   Accordingly, the
hearing justice then held that “there is no reasonable probability of a different result had the
[applicant] been provided with the specific expenditures made on Ferle at the time of trial.”
The  hearing  justice  also  addressed  applicant’s  argument  that  the  prosecution  had
intentionally withheld an uncharged act (viz., the murder of Ronald McElroy), which act the
hearing justice noted was “admitted to by Ferle prior to trial.”   The hearing justice first stated
that “there exists no authority to support the [applicant’s] proposition that the [s]tate is obligated
- 17 -




to inform opposing counsel of uncharged admissions of a witness.”                                       (Emphasis in original.)   The
hearing justice then found that the jury “already knew of Ferle’s federal prison sentence for bank
fraud and of his pending charges for arson, fraud, filing false papers and murder;” the hearing
justice based that finding on the fact that testimony concerning those points had been elicited
during cross-examination at applicant’s criminal trial.8   Accordingly, the hearing justice held that
“the addition of an immaterial uncharged admission creates no reasonable probability of a
different result.”
The  hearing  justice  also  briefly  addressed  applicant’s  allegations  of  prosecutorial
misconduct on the part of Mr. Leach.  First, the hearing justice noted that, during the hearing and
in his supporting memorandum, applicant had alluded to the fact that Mr. Leach “was involved
in other criminal cases where convictions were reversed based on ‘prosecutorial misconduct’ in
the form of deliberate discovery withholding.”   With respect to Mr. Leach’s conduct in those
“other criminal cases,” the hearing justice commented that “the law generally distrusts such
propensity evidence * * * .”   Then, focusing on Mr. DeCiantis’ case, the hearing justice found
Mr.  Leach’s  testimony  at  the  hearing  on  the  application  for  postconviction  relief  to  be
“compelling;” he stated that Mr. Leach’s testimony  “supported the  [s]tate’s position that no
prosecutorial misconduct was committed in this case.”   (Emphasis in original.)
On  March                                                                                               27,                                                                                          2007,  an  order  entered  denying  Mr.  DeCiantis’  application  for
postconviction relief; judgment entered for the state on the same day, dismissing Mr. DeCiantis’
application.  The applicant filed a timely notice of appeal.
8                                                                                                       The hearing justice also quoted from this Court’s 1985 opinion to the effect that “[c]ross
examination [at trial] revealed that Ferle had served time in federal prison for bank fraud and that
he also had charges pending for murder, arson, robbery, and filing false papers.” State v.
DeCiantis, 501 A.2d 365, 366 (R.I. 1985).
- 18 -




II
Standard of Review and Controlling Legal Principles
Pursuant to the provisions of G.L. 1956 § 10-9.1-1, “the remedy of postconviction relief
is 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 interest of justice.”   Page v.
State, 995 A.2d 934, 942 (R.I. 2010) (quoting Mattatall v. State, 947 A.2d 896, 901 (R.I. 2008));
see also Washington v. State, 989 A.2d 94, 98 (R.I. 2010).  An applicant for postconviction relief
bears the burden of proving, by a preponderance of the evidence, that such relief is warranted in
his or her case.  Page, 995 A.2d at 942; Mattatall, 947 A.2d at 901 n.7.
In conducting appellate review, this Court “will not disturb the findings of a hearing
justice in the postconviction relief context absent clear error or a showing that the [hearing]
justice overlooked or misconceived material evidence.”   Page, 995 A.2d at 942 (brackets in
original) (internal quotation marks omitted); see also Washington, 989 A.2d at 98.   However, to
the extent that an applicant’s appeal presents “questions of fact concerning whether a defendant’s
constitutional rights have been infringed” or “mixed questions of law and fact with constitutional
implications,” we review same in a de novo manner.  Page, 995 A.2d at 942 (quoting Ouimette v.
State, 785 A.2d 1132, 1135 (R.I. 2001)); see also Washington, 989 A.2d at 98; Mattatall, 947
A.2d at 901.   Nevertheless, 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 * * * .’”   Page, 995
A.2d at 942 n.18 (omission in original) (quoting Mattatall, 947 A.2d at 901).
- 19 -




III
Analysis
The applicant has specified four separate “errors claimed.”   However, in our analysis of
the alleged errors, we must grapple at the outset with the basic question of whether or not the
prosecution withheld evidence in violation of discovery rules and in violation of applicant’s right
to due process.
We have stated that the “overarching purpose of Rule 16 [of the Superior Court Rules of
Criminal Procedure] is to ensure that criminal trials are fundamentally fair.”  State v. Briggs, 886
A.2d 735, 754 (R.I. 2005) (internal quotation marks omitted); see also State v. Langstaff, 994
A.2d  1216,  1219  (R.I.  2010).    With respect to persons whom the state intends to call as
witnesses, Rule  16 requires that the state produce any of their prior recorded statements, a
summary of their expected trial testimony, and any records of their prior convictions.   E.g., State
v. Chalk, 816 A.2d 413, 418 (R.I. 2002); State v. Brown, 709 A.2d 465, 469 (R.I. 1998).  But the
state’s discovery obligations extend beyond the literal language of Rule  16; this Court has
expressly stated that,  “[w]hen evidence does not fit one of these three categories, but may
nonetheless be helpful to defendant’s effective cross-examination of a witness, a defendant’s
right to that evidence arises from the right of confrontation, and thus becomes an issue only
when a defendant is improperly denied the ability to confront and to effectively cross-examine an
adverse witness at trial.”   Chalk, 816 A.2d at 418 (emphasis added) (internal quotation marks
omitted); see also Briggs, 886 A.2d at 754.
In addition to the requirements imposed by Rule  16 and this Court’s rulings as to
discovery obligations, the Due Process Clause of the United States Constitution, as interpreted
by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,
- 20 -




“requires  that  the  state  provide  a  criminal  defendant  with  certain  information.”  State  v.
McManus, 941 A.2d 222, 229 (R.I. 2008); see also Briggs, 886 A.2d at 754-55; Chalk, 816 A.2d
at                                                                                                       418.                                                                                          “In accordance with Brady, if a prosecutor has suppressed evidence that would be
favorable to the accused and the evidence is material to guilt or punishment, the defendant’s due-
process rights have been violated and a new trial must be granted.”  McManus, 941 A.2d at 229-
30; see also Briggs, 886 A.2d at 755.   The duty to disclose, pursuant to Brady, “encompass[es]
impeaching material as well as exculpatory evidence.”  Chalk, 816 A.2d at 418.
In conducting a due process inquiry pursuant to Brady, the first factor to be addressed is
whether or not the nondisclosure at issue was deliberate.   See Chalk, 816 A.2d at 418-19.   The
inquiry  begins  with  that  question  because,  as  this  Court  has  consistently  held,  deliberate
nondisclosure constitutes  “grounds for a new trial regardless of the degree of harm to the
defendant.” Id. at 419; see also McManus, 941 A.2d at 230; Briggs, 886 A.2d at 755.9   With
respect to what constitutes deliberate nondisclosure, we have described it as being a “considered
decision to suppress * * * for the purpose of obstructing” or a failure on the part of the state “to
disclose evidence whose high value to the defense could not have escaped * * * [the state’s]
attention.”   State v. Wyche, 518 A.2d 907, 910 (R.I. 1986) (omissions in original) (quoting
United States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968)); see also McManus, 941 A.2d at
230; Briggs, 886 A.2d at 755; Chalk, 816 A.2d at 419.
If however, the nondisclosure is not deliberate, then the                                                “prejudicial effect” of the
nondisclosure must be evaluated.   Chalk,  816 A.2d at  419.   At this analytical juncture, the
applicant                                                                                                “bears  the  burden  of  establishing  that  it  was  prejudicial  by  showing  that  the
9                                                                                                        It should be recalled that our standard with respect to deliberate nondisclosures “provides
even greater protection to criminal defendants than the one articulated [by the United States
Supreme Court].”  State v. Chalk, 816 A.2d 413, 418-19 (R.I. 2002) (brackets in original).
- 21 -




                                                                                                                                                                                                         nondisclosed evidence was material because  ‘there is a reasonable probability that, had the
                                                                                                                                                                                                         evidence been disclosed to the defense, the result of the proceeding would have been different.’”
Id.                                                                                                     (citation  omitted)                                                                              (quoting  Strickler  v.  Greene,                                                                    527  U.S.   263,   280  (1999));  see  also
                                                                                                                                                                                                         McManus, 941 A.2d at 230.   We have referred to this burden that an applicant must bear as
                                                                                                                                                                                                         being a requirement that there be a “showing of materiality.”   Briggs, 886 A.2d at 755; see also
McManus, 941 A.2d at 230.
Having set forth the state of the law with respect to the nondisclosure of exculpatory
evidence, we shall now address applicant’s appellate arguments in the order that best fits into the
above-outlined analytical framework.
A
The Alleged Prosecutorial Misconduct
On appeal, applicant contends that the hearing justice erred by applying a  “higher
standard of ‘materiality’ * * * than the standard required for the [s]tate’s deliberate withholding
of exculpatory evidence.”   In order to properly address this particular appellate contention, we
must engage in a two-step inferential process.   First, it is clear to us that, where a nondisclosure
is not deliberate, applicant would be required to make a showing of materiality—and our review
of applicant’s brief has convinced us that he does not dispute that point.10   Accordingly, it would
appear implicit in applicant’s specification of error that he is actually contending that the hearing
10                                                                                                      In the instant case, while the hearing justice properly cited this Court’s opinion in State v.
Wyche, 518 A.2d 907 (R.I. 1986), for the proposition that a deliberate nondisclosure would
automatically result in a new trial, he went on to state: “Thus, in either instance—a deliberate
suppression or a mere failure to disclose—the Court must first determine whether or not the
‘missing’ evidence was material.” (Emphasis added.)  The just-quoted statement is not consistent
with our opinions in such cases as Wyche, 518 A.2d at 910, and State v. Stravato, 935 A.2d 948,
953  (R.I.  2007), where we held that the issue of materiality is of no moment in a case of
deliberate nondisclosure.
- 22 -




justice erred in finding that the nondisclosure in the instant case was not deliberate.   A closely
related appellate contention of applicant’s is that the hearing justice erred in finding that no
prosecutorial misconduct occurred in his case.
It is true that nowhere in his rescript decision does the hearing justice explicitly state that
the failures to disclose were not deliberate.  However, after reviewing the entire record, including
a reading of the hearing justice’s rescript decision as a whole, it is clear to us that the hearing
justice did indeed make an assessment as to the deliberateness (vel non) issue and did conclude
that there was no deliberate failure to disclose.
In assessing whether prosecutorial misconduct had been committed in the instant case,
the hearing justice observed that he had heard testimony “regarding Prosecutor Leach’s actions.”
(Emphasis added.)   The hearing justice stated the following with respect to that testimony:
“[T]he Court * * * found this compelling testimony supported the [s]tate’s position that no
prosecutorial misconduct was committed in this case.”                                                        (First emphasis added; second emphasis
in  original.)11    Accordingly,  it  is  clear  to  us  that  the  hearing  justice  made  a  credibility
determination, finding Mr. Leach’s testimony credible; and we perceive nothing in the record to
suggest that that credibility determination was clearly erroneous.   See B.S. International Ltd. v.
JMAM, LLC,  13 A.3d  1057,  1062  (R.I.  2011)  (“It is self-evident that a trial justice sitting
without a jury must often make credibility determinations in order to arrive at the necessary
findings of fact.  We accord a substantial amount of deference to those determinations * * * .”).
11                                                                                                           It should be observed that the emphasis which the hearing justice gave to the fact that he
was making a determination “in this case” was predicated upon the fact that he had been made
aware of several prior cases where Mr. Leach had been the prosecutor and where this Court
vacated the convictions based upon prosecutorial misconduct that was somewhat similar to what
was alleged in the instant case.   Given the fact that Mr. Leach’s prior history might have made
the hearing justice more sensitive to allegations of misconduct, we are further satisfied that he
thoroughly evaluated the testimony and evidence proffered at the hearing.
- 23 -




Since much of Mr. Leach’s testimony was to the effect that he had not deliberately
withheld exculpatory evidence from Mr. DeCiantis or his attorney, we are satisfied that we can
infer from the hearing justice’s credibility determination that he did not find any deliberate
nondisclosure on the part of the prosecution.   In view of the clear import of the hearing justice’s
overall ruling, we see no need for a remand with respect to the deliberateness issue; we hold that
the hearing justice did not err in applying the materiality standard to applicant’s case, nor did he
err in his determination that no prosecutorial misconduct occurred.
B
The Ruling with Respect to Uncharged Crimes and Characterization of Applicant’s Claim
Mr. DeCiantis’ other two appellate contentions concern the hearing justice’s ruling as to
whether the prosecution was required to disclose Mr. Ferle’s uncharged crimes, as well as the
hearing justice’s “characterization” of applicant’s claim as being “that the state wrongfully failed
to disclose only one of William Ferle’s charged crimes.”    Since both of these contentions
necessarily relate to what constituted the universe of allegedly improperly withheld evidence, we
shall address both contentions by conducting the requisite de novo review with respect to
whether applicant has satisfied his burden with respect to the issue of materiality.
We begin our analysis by clarifying that, when the hearing justice stated that applicant
was not entitled to the disclosure of Mr. Ferle’s uncharged acts, that statement was inconsistent
with our well-settled case law.   It is true that the plain language of Rule 16 requires in pertinent
part  only  that  the  prosecution  provide  a  defendant  with                                         “all  reports  or  records  of  prior
convictions” of those whom the prosecution expects to call as witnesses.  Significantly, however,
the mandates of Brady and of our case law interpreting Brady and embroidering upon its
rationale require that the prosecution provide the defendant with other information favorable to
- 24 -




the accused, including evidence which could be used to impeach the testimony of a witness.
McManus, 941 A.2d at 229-30; Briggs, 886 A.2d at 754-55; Chalk, 816 A.2d at 418.   It is clear
to this Court that any uncharged alleged crimes of Mr. Ferle should have been disclosed to
defense  counsel—because  counsel  might  have  used  them  to  further  impeach  Mr.  Ferle’s
testimony.   The numerous uncharged crimes for which Mr. Ferle might have faced prosecution
could have been used to cast further doubt upon the testimony of that witness—by suggesting to
the jury that his testimony was motivated more by the hope of obtaining a favorable disposition
with respect to his alleged crimes than by the altruistic desire to provide truthful testimony about
Mr. DeCiantis’ alleged crime.
Having determined that Mr. Ferle’s uncharged crimes should have been disclosed to Mr.
DeCiantis, we have next proceeded to a de novo determination of whether or not Mr. DeCiantis
has satisfied his burden of “showing that the nondisclosed evidence was material”—meaning that
“there is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.”   See Chalk, 816 A.2d at 419 (emphasis added)
(internal quotation marks omitted).   And, based upon our review of the evidence presented at
trial, with particular focus on the testimony of Mr. Ferle, as well as the evidence and testimony
presented by applicant during the hearing on his application for postconviction relief, we hold
that Mr. DeCiantis has not made the requisite showing of materiality.  See id.
On cross-examination during the murder trial, Mr. Ferle was confronted with his prior
conviction of conspiracy and bank fraud, as well as pending charges of obtaining money under
false pretenses, robbery, arson, and even murder.    Mr. Ferle was also questioned as to  (1)
whether or not he was providing testimony “[o]ut of the goodness of [his] heart;” (2) what
promises or inducements he had been given in exchange for his testimony; and (3) what he
- 25 -




“would like to happen” as a result of his providing testimony that supported the prosecution’s
case.   Mr. Ferle was questioned repeatedly with respect to what he hoped to obtain in return for
his testimony.   Finally, he was also questioned explicitly as to whether or not he was receiving
monetary support from the state or from the police.
It is clear to us that it could not have escaped the attention of the jury that Mr. Ferle had
an extensive criminal background, that he had decided to testify against members of organized
crime (and that he was recently such a member himself), and that he hoped to receive protection
and avoid incarceration in exchange for his testimony.   We are unpersuaded that evidence of
additional criminal activity on the part of Mr. Ferle would have materially changed the jury’s
evaluation of him as a witness or would have changed the ultimate result of the proceeding.   For
these reasons, Mr. DeCiantis has not met his burden.  See Chalk, 816 A.2d at 419.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
The record in this case may be returned to that tribunal.
Justice Goldberg and Justice Indeglia did not participate.
- 26 -




RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                          Anthony DeCiantis v. State of Rhode Island.
CASE NO:                                                No. 2008-0156-Appeal.
                                                        (PM 98-899)
COURT:                                                  Supreme Court
DATE OPINION FILED:   July 12, 2011
JUSTICES:                                               Suttell, C.J., Flaherty, and Robinson, JJ.
WRITTEN BY:                                             William P. Robinson III
SOURCE OF APPEAL:    Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Francis J. Darigan, Jr.
ATTORNEYS ON APPEAL:
For Applicant:    James J. McCormick, Esq.
For State of Rhode Island:  Aaron L. Weisman
Department of Attorney General

Download 08-156.pdf

Rhode Island Law