On appeal from Superior Court, Law Division, Burlington County.
Pressler, Shebell and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D. Shebell, J.A.D., Dissenting.
The opinion by the court was delivered by
N.J.S.A. 2C:2-6 defines the circumstances under which one can be held legally accountable for the criminal conduct of another. The culpability requirement for liability as an accomplice pursuant to N.J.S.A. 2C:2-6b(3) has received significant attention from the Supreme Court since enactment of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., in 1978. See State v. Weeks, 107 N.J. 396, 526 A.2d 1077 (1987). Vicarious liability as a conspirator pursuant to N.J.S.A. 2C:2-6b(4) has, however, received little attention from the courts. This appeal requires us to address the culpability requirement necessary to sustain a conviction of a conspirator for the substantive crime committed by a co-conspirator.
We conclude that the culpability requirement for vicarious conspirator liability is the same as for accomplice liability. Consequently we hold that a conspirator can be held accountable only for those substantive crimes committed by co-conspirators as to which the conspirator had the same intent and
purpose as the co-conspirator who actually committed them.*fn1 Thus, if the culpability element of the substantive crime is knowing or purposeful action as defined by N.J.S.A. 2C:2-2b(1) and (2), imposition of vicarious liability requires the conspirator to have had the same state of mind in respect of that crime as the co-conspirator who actually committed it. If, however, the culpability element of the substantive crime is recklessness as defined by N.J.S.A. 2C:2-2b(3), imposition of vicarious liability requires that the conspirator both intended that the co-conspirator commit the conduct resulting in that substantive crime and also that he consciously disregarded a substantial, unjustifiable and understood risk, as that term is defined by the statute, that that crime would ensue from that conduct.
This appeal arises out of the indictment and conviction of defendant Bennie Bridges of a charge of conspiracy to commit the second-degree crime of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; the third-degree crime of possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and the fourth-degree crime of pointing a firearm in the direction of another under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1b(4). In addition, defendant was charged with liability, "pursuant" to that conspiracy, for nine substantive crimes including one count of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or (2); one count of aggravated manslaughter, N.J.S.A. 2C:11-4a; one count of aggravated assault with a firearm, N.J.S.A. 2C:12-1b(2); one count of aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); two counts of possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and one count of possessing a defaced firearm, N.J.S.A. 2C:39-3d. The jury found defendant guilty of the purposeful or knowing
murder and hence, following the Judge's instruction, did not consider the lesser-included separately charged count of aggravated manslaughter. It also found him guilty of all the other charges except the defaced-handgun charge, of which he was acquitted. The Judge merged the conspiracy, fourth-degree aggravated assault, and second-degree weapons charges into the murder, on which he sentenced defendant to a term of life imprisonment subject to a thirty year parole ineligibility term. He also sentenced defendant to a consecutive term of four years subject to a three year parole ineligibility term on the aggravated assault conviction and merged the remaining two weapons offenses on which he imposed a concurrent four year term.
We are satisfied from our review of this record that there was insufficient evidence to convict defendant of purposeful or knowing murder. He was accordingly entitled to the grant of his motion for acquittal of that charge, and we reverse the conviction on that charge. We are also satisfied that the remaining convictions of substantive offenses must be reversed and remanded for trial because of the failure of the charge properly to define the state of mind of a conspirator requisite for conviction. We affirm, however, the conspiracy conviction.
The tragic episode which constitutes the gravamen of the charges brought against defendant occurred during the early morning hours of Saturday, September 3, 1988, in the Roebling section of Florence Township, at a party at the home of C.S. which was being held to celebrate her sixteenth birthday. The testimony of a group of youngsters who were at the party and of the investigating officers, together with defendant's recorded statement which was placed in evidence, permits a clear reconstruction of the events of that night. C.S. had invited about twenty young people, mostly between the ages of 16 and 19, to the party, telling them, however, that they should invite
other mutual friends as well. In all about sixty or seventy young people were gathered, most of them in the basement of the house and most of them from the Florence Township area of Burlington County. Defendant, then 20 and acquainted with C.S., heard of the party and stopped by. At some time shortly after midnight, he had an argument with another guest, Andy Strickland. He believed that Strickland had insulted him and felt he was being treated as an outsider since he was from Trenton and the others were from Burlington. In any event, he left the party, saying he was going to get his "boys."
Defendant did then return from Roebling to Trenton in order to find two close friends of his to bring back to the party with him. He was stopped twice on this trip by police officers because his car was missing a headlight. He told both of them that he was on his way to Trenton to pick up friends and would then return to Roebling. When he reached Trenton, defendant was unable to find the two friends he was seeking, but met two other friends, codefendants Eddie Rolle and Keith Bing. Rolle and Bing agreed to go back to the party with him to back him up in his dispute with Strickland. They first had to stop at Bing's home to drop off Bing's car and both Bing and Rolle made a quick stop inside. When the three started back to Roebling in defendant's car, Bing and Rolle told him that they were armed with guns. Defendant's response, he says, was "Man, don't shoot nobody . . . . Don't shoot anybody at the party, man."
The three arrived back at the party at about 2:00 a.m., parked around the corner from C.S.'s house and went down to the basement. Defendant's evident plan was to have a one-on-one fight with Strickland. Strickland, however, was apparently considerably smaller than defendant, and it was agreed that Strickland's friend, John Rasberry, known as Raz, would fight defendant instead. Defendant and Raz left the basement to conduct their fight in the middle of the street and the remaining guests came out to watch. There was evident concern on the part of the defendant and his friends because they were grossly
outnumbered by the large group of Raz's sympathizers. Various comments were made by the bystanders about the fight being a fair one-on-one affair. Indeed one of the guests, a State's witness, recalled Bing saying, "Nobody jump in," which he construed to mean that Bing wanted the two combatants left alone to fight their own fight.
The fight began with the guests ranged in a semi-circle around defendant and Raz. Bing and Rolle were off to one side, Bing leaning against a car. After several blows, defendant and Raz both fell to the ground, wrestling with each other. At that point two things happened. One of the guests tried to pull defendant, who was on top of Raz, away from Raz. Another guest punched Bing, who started to slide down against the car. Bing then apparently reached for his gun. Rolle also pulled out his gun and fired one shot into the air. The crowd of youngsters began to disperse when the shot was fired. Some of them, however, called out that it was only a cap gun, and the crowd began to reassemble. As they did so, Rolle began shooting into the crowd. One bullet hit and killed a fifteen year old boy, Shawn Lockley. Another bullet hit another guest, Paul Suszynski, in the shoulder. Suszynski was taken to the hospital, the bullet removed, and his recovery was uneventful.
After the shooting, defendant, Bing and Rolle ran away. They hid the two weapons, later recovered by police, and were helped by friends to leave the State. Bing and Rolle went to Florida, and defendant stayed first in Atlanta and then with a cousin in North Carolina. All were eventually apprehended, defendant as a result of a speeding stop in North Carolina. A single indictment was returned against the three charging each of them in all ten counts. Defendant's trial was severed from his codefendants'.
As we have noted, but for the conspiracy count, which charged a conspiracy to commit the two weapons crimes and the fourth-degree aggravated assault based on pointing a firearm,*fn2
all of the substantive offenses were charged and tried on the theory of vicarious conspirator liability even though most of them were not included in the conspiracy count as having been within the scope of the conspiracy. Accomplice liability was not charged against any of the three defendants in respect of any of the substantive offenses.
As to the nine substantive offenses, the jury was instructed, in essence, that it could find defendant guilty of each of the substantive offenses if it found that the 0 offense had been committed by any one of the conspirators, if there was in fact a conspiracy in which defendant had participated, and if the substantive crime, even if not a direct object of the conspiracy, was, nevertheless, a "natural and probable consequence" of the conspiracy. As to each of the substantive crimes, the only state of mind which the jury was asked to consider was the state of mind of the co-conspirator who actually committed the crime. Defendant's own state of mind vis-a-vis these substantive crimes was never addressed. This was critical error.
Before considering the culpability requirements for vicarious conspirator liability under the Code, we first address pre-Code vicarious liability since we are satisfied that even if its elements were not modified by the Code, there was insufficient evidence to permit the jury to find defendant guilty of knowing or purposeful murder.
To begin with, vicarious liability was not part of the codified criminal law in this jurisdiction until the adoption by L. 1951, c.
344 of Title 2A, revising former Title 2. Prior to that time vicarious liability was recognized by our criminal jurisprudence as a matter of the common-law 1 doctrine that one who aids, abets or assists the criminal actor is responsible for those acts under principles of agency which make the agent equally liable with the principal. See, e.g., State v. Morano, 134 N.J.L. 295, 301, 47 A.2d 419 (E. & A.1946). Thus, as pointed out by the Supreme Court in State v. Cooper, 10 N.J. 532, 568, 92 A.2d 786 (1952), "[t]he distinction between principal and accomplice or aider and abettor has been abolished in our jurisdiction for purposes of indictment and punishment."
The common-law vicarious liability of each conspirator for crimes within the scope of the conspiracy committed by any of them was simply a variation on the principal-agent theme. That is to say, in a principal-accomplice relationship, one is the principal and one the agent. In a conspiracy relationship each conspirator is both the principal and agent of every other conspirator. As articulated by the Supreme Court in State v. Carbone, 10 N.J. 329, 339-340, 91 A.2d 571 (1952):
Where two or more persons have entered into a conspiracy to perpetrate a crime, the acts and declarations of one of the conspirators in furtherance of the common object are deemed 2 in law the acts and declarations of all. This on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan . . . This is the rule in New Jersey, and it is the general rule . . . . The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts and declarations of his principal. [Citations omitted]
The concept of mutual agency was again underscored by State v. Cooper, supra, 10 N.J. at 568, 92 A.2d 786, which applied the common-law abolition of "the distinction between principal and accomplice or aider and abettor" to conspirators because "[u]nder our law, all those who conspire to commit a crime and participate in some way in its commission are joint principals and each is as guilty as the person who actually commits the crime."
The enactment of Title 2A included N.J.S.A. 2A:85-14, which had no earlier source. Encaptioned Aiders and abettors: principals, it provided in full that:
Any person who aids, abets, counsels, commands, induces or procures another to commit a crime is punishable as a principal.
Any person who wilfully causes another to commit a crime is punishable as a principal.
3 No separate statute was adopted establishing the vicarious liability of conspirators, and we are satisfied that this was so because the "aiding and abetting" statute, based on the common-law principal-agent relationship, was evidently regarded as broad enough to include conspirators. Thus, in Cooper, supra, 10 N.J. at 568, 92 A.2d 786, decided shortly after the January 1, 1952, effective date of Title 2A, the Court noted that co-conspirators "are indicted, in the language of the statute, as principals and are not accused of being accessories or aiders and abettors." And the Court specifically held in State v. Madden, 61 N.J. 377, 393, 294 A.2d 609 (1972), that a conspirator may be found guilty of the ensuing substantive crime under the aiding or abetting statute, since:
When the commission of the substantive crime is specifically agreed upon as the object of the conspiracy, it can readily be found that everyone who agreed upon the commission of the crime did thereby in fact aid or abet or counsel or induce or procure the actual perpetrator to commit that crime.
A conspirator who is thus chargeable with the substantive crime under our aiding or abetting 4 statute is a principal, and on the trial of that charge, the fact of the conspiracy may be proved even though the indictment does not also charge the crime of ...