On appeal from Superior Court of New Jersey, Law Division, Essex County.
Lora, Michels and Larner.
Defendant, an alleged participant conspirator in the armed robbery of a Montclair bank during which a bank guard was killed, was convicted of first degree murder, armed robbery and conspiracy to commit robbery. His motion for a new trial was denied, and he was sentenced to a life term for murder and to consecutive State Prison terms aggregating 12 to 17 years for the other crimes.
On appeal, defendant contends that even if he aided and abetted the assailant, Mark Jackson, in the commission of the robbery, his conviction for murder under the felony-murder rule, N.J.S.A. 2A:113-1, should be reversed because he was absent from the scene of the crime and had
"only the most minimal contact with the purported killer." Thus, he argues, he did not commit the requisite felony which triggers the rule. Defendant also contends that the prosecutor improperly elicited testimony that a nonwitness coconspirator had implicated him, in violation of defendant's right to confrontation.
Evidence of defendant's involvement in the planning and commission of the armed robbery with its consequent murder was most dramatically portrayed in his statement to the police which was read to the jury in its entirety. Despite defendant's absence from the scene of the crime, his involvement was hardly the "minimal" participation suggested on this appeal.
Defendant further argues that since he was absent from the scene of the actual felony-murder, his conduct does not meet the requisite elements of the underlying common-law offense. He bottoms this contention on the language in State v. Butler , 27 N.J. 560, 590 (1958), and State v. Madden , 61 N.J. 377, 385 (1972), wherein it is stated that the robbery to which the killing is incident must be the "common-law offense and should be defined accordingly in charging the jury." Butler, supra , 27 N.J. at 590. In summary, defendant asserts that the felony-murder rule contemplates first degree murder punishment only for those committing common-law felonies, and robbery, at common law, did not comprehend within its terms an accomplice physically absent from the scene of the offense, citing Roesel v. State , 62 N.J.L. 216, 222 (E. & A. 1898); State v. Morano , 134 N.J.L. 295, 301 (E. & A. 1946).
However, it is well settled that once a criminal conspiracy is formed, each conspirator while a member thereof is liable for every act, and is bound by the act and declaration of each and all of the conspirators, done or made in the pursuance of furtherance of the conspiracy. State v. Stein , 70 N.J. 369, 388-389 (1976); State v. Maddox , 153 N.J. Super. 201, 212 (App. Div. 1977); People v. Smith , 63 Cal. 2d 779, 48 Cal. Rptr. 382, 409 P. 2d 222, 232 (Sup.
Adopting a common-law approach, as suggested by defendant, his liability for felony murder is equally clear by his status as an "accessory before the fact." An accessory before the fact was one who procured, counselled, commanded, instigated or abetted the principal and was absent when the crime occurred. Schlosser , 1 Criminal Laws of New Jersey (3 ed. 1970), §§ 7.7 to 7.11 at 96-103. The distinction between principals and accessories depended on presence at or absence from the scene. State v. Morano, supra , 134 N.J.L. at 301. But that distinction was abolished formally when the principal-accomplice dichotomy was eliminated by N.J.S.A. 2A:85-14, which provides:
Any person who aids, abets, counsels, commands, induces or procures another to commit a crime is ...