On appeal from the Superior Court, Appellate Division, whose opinion is[Table] (1992).
For affirmance in part; reversal in part; and remandment -- Chief Justice Wilentz and Justices Handler, Clifford, Pollock, and Garibaldi. Concur in part; Dissent in part -- Justices O'Hern and Stein. The opinion of the Court was delivered by Handler, J. O'Hern, J., Concurring in part and Dissenting in part.
Defendant in this case was convicted by a jury of conspiracy and several substantive crimes, including murder, which were committed in the course of carrying out the conspiracy. On appeal the Appellate Division, with a Dissent, ruled that the liability of a co-conspirator for the commission of substantive crimes, like accomplice liability, requires specific intent to commit those crimes. On that ground it affirmed the conspiracy conviction but reversed the substantive criminal convictions. The Dissent concluded that a conspirator can be vicariously liable for the substantive crimes of co-conspirators without the specific mental state otherwise required of those crimes, provided that their commission of those crimes was foreseeable as a natural consequence of the conspiracy.
The issue that divided the Appellate Division poses the question on this appeal brought by the State as of right. R. 2:2-1(a).
On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his "boys." As he drove past the house on his way to Trenton, Bridges again shouted, "I'm going back to Trenton to get my niggers."
When Bridges arrived in Trenton he met two acquaintances, co-defendants Keith D. Bing and Eddie E. Rolle. Bridges asked Bing and Rolle to return to the party with him because he expected a confrontation. The two co-defendants agreed to accompany
Bridges to the party in Roebling. On the way to the party, the trio briefly stopped at Bing's house in West Trenton. Bridges remained in the car while the co-defendants entered the house. On returning to the car, co-defendants told Bridges that they had "some stuff for the guys" at the party. Bridges understood that to mean that Bing and Rolle had retrieved either guns or knives from Bing's house. After driving a few blocks, co-defendants told Bridges that they were carrying guns "so they'll stay back." According to Bridges, the guns were necessary "to intimidate the majority of the boys at the party."
Bridges and his companions returned to the party at approximately 2 a.m. A witness who was a guest at the party testified that he heard Rolle say, "Trenton's in the house. Now there's going to be trouble." Bridges exclaimed, "I'm not no joke."
The trio entered the basement, and Bridges began to argue again with Strickland. Defendant said he would not leave the house until he "fuck(ed) somebody up." John Raspberry, a friend of Strickland, interceded and agreed to fight. A crowd then gathered to watch Bridges and Raspberry begin their fight in the street in front of Smith's house. Bing shouted to the crowd, "Nobody jump in," and Rolle warned, "Nobody here is Superman." A witness testified that the statement by Rolle was meant to imply that nobody in the crowd was bullet-proof.
During the fight Bridges was able to get on top of Raspberry, at which point either Strickland or another member of the crowd pulled defendant off and struck him in the head. At the same time, a member of the crowd struck Bing in the face. Bing immediately drew a .22 caliber revolver, and Rolle pulled out a .32 caliber revolver. Rolle pointed the gun at the crowd and then fired it into the air. Numerous shots were then fired into the crowd as the onlookers tried to flee. Shawn Lockley was shot in the chest and died at the scene; Paul Suszynski was injured by a bullet in the shoulder.
The trio quickly returned to their car, and Bridges asked the co-defendants for their guns, which he later hid in his grandparents'
home. The next day, an investigator from the Burlington County Prosecutor's Office tried to locate Bridges by interviewing defendant's mother, sister, cousin, and girlfriend. That same afternoon defendant's mother informed him that the police were looking for him and that someone had died as the result of the shooting the night before. Bridges then rapidly retrieved the guns and placed them in another hiding place.
That evening the trio went to Manhattan to obtain false identification, and the next morning they caught a flight to Atlanta. Bing and Rolle flew on to Jacksonville, Florida. Bridges stayed in Atlanta for one month and then moved on to Fayetteville, North Carolina. While Bridges was in Fayetteville, Bing told him by phone that he and Rolle had been arrested. Bridges himself was soon arrested by a North Carolina Highway Patrol officer after he was pulled over for speeding.
The two guns used in the shooting were eventually turned over to the police through an informant. The serial number of the .32 caliber revolver had been removed. Neither co-defendant had a permit for the guns.
The State charged Bridges with conspiracy to commit the crimes of possession of a weapon for an unlawful purpose (contrary to N.J.S.A. 2C:39-4a); conspiracy to possess a weapon without a permit (contrary to N.J.S.A. 2C:39-5b); and conspiracy to commit aggravated assault (contrary to N.J.S.A. 2C:12-1b(4)), as well as those substantive crimes. Under N.J.S.A. 2C:12-1(b)(4), aggravated assault consists of "knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm . . . at or in the direction of another . . ." In addition, the State charged defendant under N.J.S.A. 2C:11-3a(1) with murder, the lesser crime of aggravated manslaughter, and possession of a defaced firearm "by being legally accountable for the conduct of a co-conspirator whose acts are the natural and probable consequences of the conspiracy."
After a five-day jury trial, Bridges was convicted of second-degree conspiracy for the three counts charged (contrary to
N.J.S.A. 2C:5-2); murder (contrary to N.J.S.A. 2C:11-3a(1)); third-degree aggravated assault (contrary to N.J.S.A. 2C:12-1b(2)); fourth-degree aggravated assault (contrary to N.J.S.A. 2C:12-1b(4)); two counts of possession of a firearm for an unlawful purpose (contrary to N.J.S.A. 2C:39-4a); and two counts of possession of a handgun without a permit (contrary to N.J.S.A. 2C:39-5b). Bridges was acquitted on one count of possession of a defaced firearm (pursuant to N.J.S.A. 2C:39-3d).
The trial court merged the murder conviction with the second-degree conspiracy, fourth-degree aggravated assault, and the two convictions for the possession of a firearm for an unlawful purpose, and sentenced Bridges to a term of life imprisonment with a thirty-year period of parole ineligibility. It imposed a consecutive term of four years with a three-year period of parole ineligibility for the third degree-aggravated assault, and to a concurrent term of four years on the two merged convictions for carrying a firearm without a permit. The Appellate Division, with a Dissent, affirmed the second-degree conspiracy conviction but reversed Bridges' other convictions and remanded the matter for retrial. 254 N.J. Super. 541, 568, 604 A.2d 131 (1992).
The Appellate Division majority determined that the Code of Criminal Justice, which provides that the involvement in a conspiracy can be the basis for criminal liability for the commission of substantive crimes, N.J.S.A. 2C:2-6b(4), requires a level of culpability and state of mind that is identical to that required of accomplice liability. The Appellate Division therefore ruled that a conspirator is vicariously liable for the substantive crimes committed by co-conspirators only when the conspirator had the same intent and purpose as the co-conspirator who committed the crimes. 254 N.J. Super. at 560, 562, 604 A.2d 131.
The provision of the New Jersey Code of Criminal Justice ("Code") that posits criminal liability on the basis of participation
in a conspiracy is silent with respect to its culpability requirement. It provides:
A person is legally accountable for the conduct of another person when: . . . He is engaged in a conspiracy with such other person.
The majority below concluded that the Code contemplated "complete congruity" between accomplice and vicarious conspirator liability. 254 N.J. Super. at 562, 604 A.2d 131. The majority acknowledged that State v. Stein, 70 N.J. 369, 360 A.2d 347 (1976), may be a controlling decision. However, it believed that its interpretation of the Code, that a co-conspirator share with the perpetrator the intent to commit the substantive crime, was not inconsistent with that decision. Id. 254 N.J. Super. at 553-55, 604 A.2d 131. By contrast, the Dissent found that the statute was designed to codify the Court's holding in Stein, and that holding, contrary to the majority's interpretation, recognized liability of a co-conspirator for crimes that were the natural and probable consequence and were committed in furtherance of the conspiracy without having any specific intent to commit those crimes. Id. at 569, 604 A.2d 131 (Shebell, J.A.D., Dissenting).
Because the holding in Stein is central to an understanding of conspiracy liability, and was the principal point of contention in the Appellate Division, our examination of N.J.S.A. 2C:2-6b(4) begins with an analysis of that decision.
The defendant in Stein was a Trenton attorney who suggested to an "underworld figure" that a particular home would be a good target for a burglary because the residents kept large amounts of cash on hand. 70 N.J. at 373, 360 A.2d 347. About a year after the defendant's last conspiratorial Discussion with the "underworld figure," an armed robbery occurred at the residence. Id. at 374, 360 A.2d 347. The defendant was not at the scene and did not participate. The police arrived while the robbery was in progress,
and the culprits took the homeowner's wife and daughter hostage in an attempt to escape. Ibid. During the ensuing high speed chase, the robbers crashed into a road block and critically injured two police officers. The mother and daughter, however, were freed. Id. at 374-75, 360 A.2d 347.
At trial, the defendant was convicted of conspiracy to steal currency, armed robbery, assault with an offensive weapon, kidnapping, kidnapping with an offensive weapon, assault on the injured police officers, obstruction of Justice, and conspiracy to obstruct Justice. Id. at 374, 360 A.2d 347. The Appellate Division reversed all but the two conspiracy convictions and the conviction for armed robbery. Ibid. This Court on appeal noted that the trial court had used the "conventionally stated rule" that conspirators are liable for the criminal acts of their co-conspirators that "follow incidentally in the execution of the common design as one of its probable and natural consequences . . ." Id. at 387, 360 A.2d 347. It applied that rule to hold that the robbery and the assault on the homeowner's wife were natural or probable consequences of the conspiracy, and that the defendant's convictions on those counts should be upheld. Id. at 389, 360 A.2d 347. However, the Court ruled that the defendant's convictions for kidnapping and armed assault on the police should be reversed because "it would be unreasonable for a fact-finder to find . . . beyond a reasonable doubt that they were necessary, natural or probable consequences of the conspiracy." Id. at 390, 360 A.2d 347.
The Court in Stein confirmed the basic principles of the substantive law concerning co-conspirator liability in this State. That law, most broadly stated, held a conspirator responsible for all criminal acts committed in furtherance of the conspiracy. E.g., State v. Murphy, 168 N.J. Super. 214, 217-18, 402 A.2d 944 (App.Div.1979); State v. Maddox, 153 N.J. Super. 201, 212, 379 A.2d 460 (App.Div.1977).
The most influential common-law precursor to Stein was State v. Carbone, 10 N.J. 329, 91 A.2d 571 (1952), a gambling-conspiracy case, in which the Court ruled that the acts of one conspirator in
furtherance of the conspiracy are deemed to be the acts of all of the co-conspirators under a mutual-agency theory. Id. at 339-40, 91 A.2d 571. The Court most recently affirmed the agency principles of Carbone in State v. Phelps, 96 N.J. 500, 510, 476 A.2d 1199 (1984) (explaining that a conspiracy "confers upon co-conspirators the authority to act in another's behalf to achieve the goals of the common scheme" and that "conspirators are substantively liable for the acts of their co-conspirators in furtherance of the common plan" (citing Carbone, supra, 10 N.J. at 339-40, 91 A.2d 571)); see also State v. Porro, 152 N.J. Super. 179, 188, 377 A.2d 909 (App.Div.1977) (citing Carbone for rule that acts and declarations of conspirator in furtherance of conspiracy are binding on all parties to conspiracy).
The Court in Stein was strongly influenced by the United States Supreme Court's decision in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). The Supreme Court in Pinkerton, dealing with the liability of co-conspirators, extended the settled law concerning liability for an overt act to all substantive acts "committed by one of the conspirators in furtherance of the unlawful project," that is, "acts done in execution of the enterprise." Id. at 647, 66 S. Ct. at 1184, 90 L. Ed. at 1496. Significantly, the Supreme Court added:
A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project or was merely a part of the ramification of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not the case. (Emphasis added).
The general rule of co-conspirator liability that Stein extrapolates from Pinkerton is that so long as a conspiracy is still in existence, "'an overt act of one partner may be the act of all without any new agreement specifically directed to that act,'" provided the substantive act could "'be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.'"
70 N.J. at 388, 360 A.2d 347 (quoting Pinkerton, supra, 328 U.S. at 647-48, 66 S. Ct. at 1184, 90 L. Ed. at 1497).
The Appellate Division majority reasoned that Pinkerton was not designed to "read out of vicarious liability the element of intent vis-a-vis the substantive offense." 254 N.J. Super. at 554, 604 A.2d 131. It said that Pinkerton 's language -- "which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement" -- plainly mandates that a crime "must have been within [a co-conspirator's] contemplation when he entered into the agreement and reasonably comprehended by his purpose and intention in entering into the agreement." 254 N.J. Super. at 554-55, 604 A.2d 131.
The Appellate Division thus interpreted Pinkerton to prescribe a requirement of subjective foreseeability of the criminal consequences as a basis for vicarious co-conspirator liability. That understanding of Pinkerton is not supported. Although the determination, uttered as dictum, in Pinkerton has been subject to criticism, see, e.g., Note, Vicarious Liability for Criminal Offenses of Co-Conspirators, 56 Yale L.J. 371 (1947), it has not been disputed that it purported to impose vicarious liability on each conspirator for the acts of others based on an objective standard of reasonable foreseeability. Even though what weight courts would ultimately give to that rule was unclear, Note, Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920, 994 (1959), it was understood that the liability of a co-conspirator under the objective standard of reasonable foreseeability would be broader than that of an accomplice, where the defendant must actually foresee and intend the result of his or her acts. Id. at 996.
That understanding of Pinkerton is also widely accepted by commentators and treatises, whether they are critical of its rule, see, e.g., Sanford H. Kadish, Complicity, Cause and Blame: A Study In the Interpretation of Doctrine, 73 Cal.L.Rev. 323, 363-64 (1985); Paul H. Robinson, Imputed Criminal ...