Marzulli, J.c.c., Temporarily Assigned.
[130 NJSuper Page 175] A pretrial motion has been made by defendant for the dismissal of counts 1 and 2 of Indictment #2283-73 charging him with the murders of Donald McGill and Lamar Freeman who were killed by the police while they and defendant were committing an armed robbery. This motion was made by defendant based on his assumption that the State will try the case
on the theory of felony murder. The indictment returned by the grand jury is in the short form and the State contends that this does not bind the State to a particular theory of murder. It is the State's contention that if the court agrees with defendant's position with regard to the interpretation of N.J.S.A. 2A:113-1, the State will try the case on the theory of vicarious liability. Therefore, in this regard the State urges that this court follow the reasoning of the California courts and permit the State to submit to the jury the question whether the intentional acts of defendant or his co-felons were done with a conscious disregard for life during the commission of a felony.
The court has, however, been advised that the prosecutor has elected to proceed on the theory of felony murder.
It is defendant's contention that as a matter of law he cannot be charged with the murders of his two co-perpetrators whose death occurred as a result of police action.
For the purpose of this motion the following facts have been stipulated to by both the State and defendant.
On February 20, 1974 defendant, McGill and Freeman robbed at gunpoint one Steven Killen. Killen was a uniformed driver for the United Parcel Service. Defendant and his two co-felons took Killen's uniform and truck. They then bound and handcuffed Killen, placed him in the back of his truck and forced him to accompany them to Verona. In Verona they entered an establishment known as Rose's Jewelry Store. At that time Burton was wearing Killen's uniform and carrying Killen's clipboard. In the store defendant Burton stayed in front with the counter girl while his co-felons went to the rear of the store. While in the store defendant and his co-perpetrators committed an armed robbery of the person of one Harvey Bressman. They then attempted to commit an armed robbery of the jewelry store.
While the robbery of the jewelry store was in progress the police arrived. When they entered the store defendant was ordered by the police to place his hands upon the counter. Defendant complied. McGill and Freeman started to shoot
at the police. A gun battle ensued in which McGill and Freeman were killed. During the gun battle defendant fled the scene and was apprehended under a picnic table in the International House of Pancakes where the knife that he had been holding in his hands at the time of the robbery was recovered. Defendant knew that his co-perpetrators were armed and, in fact, had used the guns in the commission of the iintial armed robbery and kidnapping of Killen and in the attempted robbery of Rose's Jewelry Store.
The issue before this court is: if a felon is shot and killed during the commission of a robbery by the police, can his death be imputed to his co-felon under the felony murder statute? The answer to this question will be based upon the court's interpretation of the Legislature's intent when it enacted N.J.S.A. 2A:113-1 and 2. In making that determination this court is acutely aware that it is the obligation of the court to follow the legislative intent when that intent has been clearly expressed, despite the court's opinion of what the law should be.
It is of paramount importance to determine whether the Legislature intended that criminal responsibility in this type of case should be based upon the agency theory or the proximate cause theory. The agency theory, simply stated, seeks to hold a defendant responsible when the act of killing is either that of defendant or someone acting in concert with him. See Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (Sup. Ct. 1958), and 56 A.L.R. 3rd 249. This would render the felony murder statute inapplicable where the killing was done by a third person in resistance to the felony.
The proximate cause theory states that a defendant may be held accountable for the proximate consequences of his activities and that a foreseeable consequence may be a killing by one resisting the felony. See Commonwealth v. Redline supra; Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 ...