Lead Opinion
The opinion of the Court was delivered by
Dеfendant 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).
I
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 hеated 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 ae
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’
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. Neithér 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-lb(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:ll-3a(l) 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
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,
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,
II
The provision of the New Jersey Code of Criminal Justice (“Code”) that posits criminal liability on the basis of participation
A person is legally accountable for the conduct of another person when: ... He is engaged in a conspiracy with such other person.
[N.J.S.A. 2C:2-6b(4).]
The majority below concluded that the Code contemplated “complete congruity” between accomplice and vicarious conspirator liability. 254 N.J.Super. at 562,
A.
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,
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,
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,
The most influential common-law precursor to Stein was State v. Carbone, 10 N.J. 329,
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 а necessary or natural consequence of the unlawful agreement. But as we read this record, that is not the case. (Emphasis added).
[Ibid. ]
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.’ ”
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,
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-Conspirаtors, 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 eo-eonspirator 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 Liability, 93 Yale L.J. 609, 666 n. 226 (1984) (citing, among other cases, Stein,
B.
The Appellate Division majority further determined that the Legislature, although cognizant of the Stein decision, did not intend to eliminate or reduce the mental state requirement of a
According to the majority, the Final Report of the New Jersey Criminal Law Revision Commission, which proposed the Code in 1971, rejected the separate imposition of the vicarious liability for co-conspirators. The legislative history of N.J.S.A. 2C:2-6b(4), which was subsequently added and makes express reference to vicarious conspirator liability, was too sparse to suggest that the Stein decision had prompted the Legislature to make a change in the Code. However, the legislative history available to the Appellate Division has been supplemented by documentation subsequently discovered in the archives of the Office of Legislative Services. That history directly illuminates the passage of the Code’s vicarious-liability conspiracy provisions.
The original draft of N.J.S.A 2C:2-6, completed in 1971, did not contain subsection b(4). The first version provided for “legal accountability” for the commission of crimes by others without any reference to conspiracy as a basis therefor. It thus mirrored § 2.06 of the Model Penal Code (MPC), see I Model Penal Code and Commentaries at 295-97 (1985), and the commentary to the proposed draft closely followed the rationale used to explain the structure of MPC § 2.06. See I The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission at 18-19 (1971) (Final Report).
Borrowing from the MPC commentary, the Commission commentary explained that conspiracy by itself, contrary to existing case law in New Jersey, should be eliminated as a basis of vicarious liability for substantive crimes committed in furtherance of the conspiracy because “there [was] no other or better way to confine within reasonable limits the scope of liability to which conspiracy may theoretically give rise” and to end the practice of imposing co-conspirator liability for all substantive offenses in “sprawling conspiracies.” II Final Report, supra at 58. Consequently, the original draft of the Code confined vicarious criminal
Nonetheless, by the time the Legislature passed the Code in 1978, subsection 6b(4) was included. The majority оf the Appellate Division found that “the insertion of [the] subsection was for technical reasons only ... [perhaps] as a matter of symmetry,” 254 N.J.Super. at 561,
Some three years after the Commission had issued its Final Report on the proposed Code, the Assembly Judiciary, Law, Public Safety and Defense Committee (Judiciary Committee), held a meeting on November 14, 1974, regarding the proposed draft of the Code. A memorandum of the minutes for that meeting reveals that a representative from the Attorney General’s Office objected to excluding from subsection 2C:2-6(b) any provision making a conspirator responsible for the actions of eo-eonspirators in furtherance of a conspiracy. The representative stated that that provision was particularly important in organized-crime prosecutions. To meet that concern, it was suggested that the language “he is engaged in conspiracy with such other person” be added to subsection b. The Committee acceded to that request, and accepted the amendment to the section without further discussion.
Comments on the draft of the Code (Comments), prepared by the Department of Public Safety of the Division of Criminаl Justice and distributed to the members of the Assembly and Senate Judiciary Committees on July 10, 1974, provide the background to the Judiciary Committee’s decision to amend subsection b. Those comments criticized N.J.S.A. 2C:2-6 because, as formulated, it did not make conspiracy alone a basis for vicarious liability. According to the commentary, the provision constituted “an unwise departure from existing law” and “Ioomfed] as an obstacle to organized crime prosecutions.” (Comments at 38, 41). The comments pointed out that the Pinkerton decision (which this Court relied on in Stein two years thereafter), and Carbone,
In addition, on January 12,1977, the Legislative Services Agency of the Law Revision and Legislative Serviсes Commission circulated a memorandum to members of the Senate that stated, “much of Chapter 2 [of the proposed Code] is a restatement of present law.” The memorandum did not include subsection 6b(4) among the subsections that constituted “major changes” to existing case law. Its absence is consistent with the description of the common law provided to the Assembly and Senate Judiciary Committees on July 10, 1974. Moreover, this Court rendered its decision in Stein prior to the January 12, 1977, memorandum of the Legislative Services Survey. If any doubt existed about the state of the law regarding co-conspirator liability before 1976, the Court clearly resolved that issue in Stein. Consequently, when on January 12, 1977, the Legislative Services Agency did not include subsection 6b(4) as a major change to the existing common law, the exclusion clearly implied that it understood 6b(4) to be consistent with the holding of Stein.
The majority of the Appellate Division infers from a December 17, 1974, memorandum from the Legislative Services Agency that subsection 6b(4) was added to the Code for mere “technical reasons only.” 254 N.J.Super. at 561,
That commentators do not ascribe a purposeful or knowing intent requirement to N.J.S.A. 2C:2-6b(4) is noteworthy. Robert E. Knowlton, the chairman of the Commission that drafted the Code, observed that co-conspirator liability under the revised Code went beyond the Model Penal Code provision. Robert E. Knowlton, Comments Upon the New Jersey Penal Code, 32 Rutgers L.Rev. 1, 6 (1979). Knowlton criticized the “broad provision” as unnecessary because the accomplice-liability provisions of N.J.S.A. 2C:2-6b would be sufficient to punish leaders of organized-crime gangs. Id. at 7. John M. Cannel, who was present as a representative of the Public Defender’s Office on November 14, 1974, when the Assembly Judiciary Committee added subsection 6b(4) to the draft of the Code, believed that when read in isolation, N.J.S.A. 2C:2-6b(4) could be construed to impose a broad scope of liability. Cannel assumed, however, citing the Stein decision, that liability should be limited as “it was ... before the Code to those acts which are the ordinary consequences of the conspirational project.” John M. Cannel, New Jersey Criminal Code Annotated, comment 6 N.J.S.A. 2C:2-6 (1992).
Finally, we note that the Legislature passed the Code in 1978, L. 1978, c. 95, two years after the Court had rendered the Stein opinion. The decisional law at the time of the enactment is germane to the meaning to be ascribed to a statute. E.g., Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 350,
C.
The Appellate Division majority believed that a legal standard for vicarious liability of a co-cоnspirator for unintended substantive criminal acts beyond the scope of the conspiracy in effect obviates any culpable mental state. The dissent suggests that a standard of such breadth, which eliminates any requirement of culpability, is inconsistent with the Code and would offend due process. See post at 476,
The Court in Stein, in adopting a rule of vicarious liability based on objective foreseeability, attempted to limit the scope of such foreseeability to consequences that were closely connected with the original conspiracy. The Court in Stein considered the case of State v. Madden, 61 N.J. 377,
More important, in explaining the Madden decision, the Court in Stein stated that if the jury instruction given in Madden meant that vicarious liability for murder would attach when the co-conspirators agreed to commit any crime, that would be inconsistent with “the generally held rule, exemplified by the leading Pinkerton case,” namely, that a crime committed by one partner in a conspiracy may be attributable to all of the partners provided the act was “ ‘reasonably foreseen as a necessary or natural consequence of the [conspiracy].’ ” Id. at 388,
Further, the Stein Court’s understanding that its standard for imposing liability on a co-conspirator was subject to limitations is reflected in the Court’s application of that standard. As earlier noted, the original conspiracy there contemplated a burglary and theft of a household. The Court found that the armed robbery was within the scope of the conspiracy to steal currency from the victim’s home. Stein, supra, 70 N.J. at 389,
Stein’s practical limitation of the reasonably foreseeable standard is also evident from its reliance on the early case of People v. Payne, 359 Ill. 246, 194 N.E. 539 (1935). The defendant there conspired to commit a robbery. In a role analogous to that of the defendant in Stein, the defendant in Payne showed the four co-conspirators the targeted house and claimed that its residents kept a large amount of cash on hand. Id. 194 N.E. at 541. Also, like the defendant in Stein, the defendant in Payne did not accompany the co-conspirators on the actual robbery and was thus not present when the four murdered the homeowner during the attempt. Ibid. The Payne court affirmed the defendant’s conviction for murder, id. 194 N.E. at 544, observing that “[i]t might reasonably be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot----” Ibid.
The Eleventh Circuit Court of Appeals in United States v. Alvarez,
Significantly, the Stein case directly addressed the issue of criminal responsibility of a conspirator for the commission of offenses “having some causal connection with the conspiracy but not within the contemplation of the conspirator.” Id. at 387,
The 1971 Commentary indicates that N.J.S.A. 2C:2-3 was adopted, in part, to address the complexity of criminal causation. The conceptual problems of proximate cause had “presented enormously difficult problems because of the vagueness of the term.” II Final Report at 49. For example, criminal responsibility had depended on “whether or not the injury which caused the death was the regular, natural and likely consequence of defendant’s conduct.” State v. Reitze, 86 N.J.L. 407, 92 A. 576 (Sup.Ct.1914). Taking a fresh approach, the Code viewed the problem of causality as an aspect or dimension of the culpability required for conviction. II Final Report at 49-50. In assessing whether the actor’s conduct is the cause of the result, the Code focuses on whether the actual rеsult justly bears on the defendant’s culpability for the offense. State v. Martin, 119 N.J. 2, 11,
Those Code provisions bear materially on our understanding of the Legislative purpose in adopting co-conspirator liability that is based in part on principles of causation with respect to acts committed beyond the scope of the conspiracy. Thus, in determining the standard for co-conspirator liability intended by the Legislature to be encompassed by the enactment, N.J.S.A 2C:2-6b(4), the Court’s decision in Stein must be assessed in light of the Legislature’s awareness of that decision and the approach it took under the Code with respect to criminal causation. The overarching requirement in determining criminal causation is that the criminal result be closely related to the criminal conduct.
We appreciate the concern of the concurring opinion, post at 474-475,
Accordingly, we conclude, and now hold, that a co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are
We fully appreciate that the application of a standard based on this holding will be difficult and comрlicated because it is necessarily fact-sensitive. Consequently, trial courts must endeavor to explain to juries, as part of their instructions, that when determining criminal liability under that standard, they should consider whether the commission of the substantive crime is actually beyond the scope of the original conspiracy, and if so, whether it is objectively foreseeable or reasonably to be anticipated that the substantive crime would be committed in view of the obvious risks surrounding the attempts to execute the conspiracy, and whether the substantive crime occurred or was committed in a manner that was too far removed or too remote from the objectives of the original conspiracy. Those considerations should enable a jury to determine whether the commission of substantive crimes not within the scope of the conspiracy are reasonably foreseeable as the necessary or natural consequences of the conspiracy and constitutes a just basis for imposing criminal liability on a conspirator for the commission of those crimes.
Ill
The Appellate Division majority believed that Stein required “that the substantive crime [of a co-conspirator] must have been a necessary or natural consequence of the agreement which was reasonably foreseen as such by the conspirator” for vicarious liability to apply to a defendant-conspirator. 254 N.J.Super. at 555,
The trial court instructed the jury to use the “natural or probable consequence” language that the majority rejected. The charge was thus broadly consistent with the standard as expressed in Stein. However, that charge did not sufficiently inform the jury in accordance with the standard that we now prescribe and that should govern the jury’s determination of criminal liability.
Under our holding a conspirator can be held liable for thе acts of others that constitute a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy, and occurring as the necessary or natural consequences of the conspiracy. The substantive crime must be reasonably and closely connected to the conspiracy even though those crimes may not have been within the actual contemplation of the conspirators or within the scope of the conspiracy as originally planned. The jury instruction did not sufficiently present that standard to the jury or the kind of considerations that would be helpful in guiding its deliberations.
The question remains whether the evidence would fairly permit a jury to determine beyond a reasonable doubt that defendant is guilty of the substantive crime of murder based on his participation in the conspiracy.
The jury found beyond a reasonable doubt that Bridges had conspired with Bing and Rolle to commit fourth-degree aggravated assault, possess firearms for an unlawful purpose, and possess firearms without a permit. The facts show that after an argument at a party, Bridges angrily threatened those at the party that he was going to retrieve his companions from Trenton. Bridges in fact did travel from Roebling to Trenton and back, returning to the party at 2 a.m. Further, Bridges knew that his cohorts, acquaintances Bing and Rolle, had loaded guns, and even admitted
The conspiracy did not have as its objective the purposeful killing of another person. Nevertheless, the evidence discloses that the conspiratorial plan contemplated bringing loaded guns to keep a large contingent of young hostile partygoers back from a beating of one of their friends, and that it could be anticipated that the weapon might be fired at the crowd. Also inferable from the evidence is that hostilities might escalate in the course of carrying out that conspiracy. Thus, defendant traveled far and wide to find people on the streets of Trenton at 12:30 a.m. who would back him up in his fight. And Bridges did not balk when the co-conspirators retrieved loaded guns. Further, in the course of carrying out the conspiracy, just prior to Bridges’ street fight at the scene, Rolle warned the crowd that “Nobody here is Superman,” which was thought to imply that nobody in the hostile crowd could stop a bullet. Yet, Bridges did not back off of his intention to “fuck somebody up.”
From that evidence a jury could conclude that a reasonably foreseeable risk and a probable and natural consequence of carrying out a plan to intimidate the crowd by using loaded guns would be that one of the gunslingers would intentionally fire at somebody, and, under the circumstances, that act would be sufficiently connected to the original conspirational plan to provide a just basis for a determination of guilt for that substantive crime.
IV
The judgment of the Appellate Division is affirmed in part, reversed in part, and the matter is remanded.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the judgment of the Court. However, I disagree with its opinion primarily for the reasons stated in the opinion of
I
An interpretation of the provisions of the Code of Criminal Justice, N.J.S.A. 2C:1-1 to :98^4 (the Code), that would allow a sentence of life imprisonment to be imposed on the basis of the negligent appraisal of a risk that another would commit a homicide, conflicts with the internal structure of the Code. Despite the fact that “[cjommon law crimes are abolished [by the Code] and no conduct constitutes an offense unless the offense is defined by this code or another statute of this State,” N.J.S.A. 2C:l-5a, the Court has incorporated within its analysis concepts drawn from the common law of crimes. Ante at 453-457,
An obsession of English judges with the fear of political conspiracy gave the crime of conspiracy a “chameleon-like” life of its own. See Krulewitch v. United States, 336 U.S. 440, 447, 69 S.Ct. 716, 719, 93 L.Ed. 790, 796 (1949) (Jackson, J., concurring). Having its origin in Star Chamber practices, “The crime comes down to us wrapped in vague but unpleasant connotations. It sounds histori
The law of conspiracy serves two independent values. The first is the protection of society from the danger of concerted criminal activity. The second is the protection of society from inchoate or uncompleted crimes.
This is to say, that, although the law generally makes criminal only antisocial conduct, at some point in the continuum between preparation and consummation, the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed to justify the intervention of the criminal law.
[United States v. Feola, 420 U.S. 671, 694, 95 S.Ct. 1255, 1268,
For that reason, сonspiracy is grouped under our Code, in Chapter 5, with other uncompleted or inchoate crimes such as attempt. Because the intervention of the law before an act occurs implicates special concerns, the Code requires that the actor have the purpose to cause the result. Thus, for example, in the case of attempted murder, a preparatory crime the same as conspiracy to commit murder, the Code requires:
Although an actor may be guilty of murder if he or she intended to kill or was practically certain that his or her actions would cause or would be likely to cause death, the actor is guilty of attempted murder only if he or she actually intended the result, namely, death, to occur. Thus, the Code requires that to be guilty of attempted murder, a defendant must have purposely intended to cause the particular result that is the necessary element of the underlying offense — death.
As the Court recently noted, “An attempt is purposeful ‘not only because it is so defined by statute, but because one cannot logically attempt to cause a particular result unless causing that result is one’s ‘conscious object,’ thе distinguishing feature of a purposeful mental state. N.J.S.A. 2C:2-2(b)(l).’ ” State v. McCoy, 116 N.J. 293, 304,
Nor could defendant have been convicted as an accomplice to the murder. “Because of a moral intuition about holding one accountable for the wrongdoing of another the extent of accomplice liability has been defined carefully in our Code of Criminal Justice.” State v. Weeks, 107 N.J. 396, 401,
And finally, defendant could not even have been found guilty of conspiracy to commit murder. A person is guilty of a conspiracy to commit an offense only if “with the purpose of promoting or facilitating its commission he” or she agrees with another person that they will “engage in conduct which constitutes such crime” or agrees to aid such person “in the planning or commission of such crime.” N.J.S.A. 2C:5-2a (emphasis added).
The Cоurt concludes that defendant may be held accountable for the offense of murder without sharing any intent to murder, primarily in reliance on a memorandum of the minutes of the
The Appellate Division gave N.J.S.A. 2C:2-6b(4) an interpretation that is consistent with the whole of the Code structure, that is, recognizing the Pinkerton doctrine as a form of accomplice liability. Justice Jackson, who did not participate in Pinkerton, noted that the Pinkerton holding sustained a conviction of a substantive offense when the record contained no proof of participation in or knowledge of it, on the “theory that conspiracy is equivalent in law to aiding and abetting.” Krulewitch, supra, 336
The Code establishes a carefully-measured grid of criminal responsibility.
It is well to remember that in making “a clean break with the past,” the Code defines crimes to match criminal conduct more precisely than did pre-Code law. See State v. Mirault, 92 N.J. 492, 496 [457 A.2d 455 ] (1983). It presents a complete and carefully structured system that fits punishments to the crimes committed.
[State v. Williams, 197 N.J.Super. 127, 133,484 A.2d 331 (App.Div.1984), certif. denied, 99 N.J. 233,491 A.2d 722 (1985).]
Thus, one who causes the death of another with the knowledge or purpose to kill will be guilty of murder and can be sentenced to death in certain circumstances or to life imprisonment with a minimum of thirty years without parole. In the case of felony-murder, at least at common law, the intent to commit the underlying crime, such as robbery or rape, was constructively transferred to the death of the victim, although “[m]ore recently, felony murder has been viewed * * * as a crime * * * of absolute or strict liability.” State v. Martin, 119 N.J. 2, 20,
The manslaughter offenses require a finding that an actor causing death has exhibited a reckless disregard for human life. When that recklessness is in disregard of a probability that death may occur, the offense is aggravated manslaughter and carries a penalty of up to thirty years in prison. When the proof shows reckless disregard of a possibility of causing death, the offense is reckless manslaughter and carries the penalty of a first-degree crime, up to twenty years in prison. Except for one form of vehicular homicide, N.J.S.A 2C:ll-4b(3), no negligent homicide еxists under New Jersey law, much less a crime of negligent murder.
In describing the purposes of the Code, Dean Robert E. Knowlton explained that one of its main goals was “to achieve greater
In a long series of cases, we have attempted to seek rational and proportional punishment for crimes. See, e.g., State v. Towey, 114 N.J. 69,
II
Although the Court believes that it is bound to accept the foregoing interpretation, I do not believe that it can do so without offending the principles of the Pinkerton doctrine itself. To begin with, to find that murder was in furtherance of the conspiracy, alleged here in Count One, to carry weapons and to point weapons and to threaten people with weapons is a logical impossibility. This was not a ease in which conspirators in a drug transaction killed federal agents to further their conspiracy by escaping detection. United States v. Alvarez,
The Court has suggested instructions, ante at 466-467,
a conspirator could be held guilty of the substantive offense even though he did no more than join the conspiracy, provided that the substantive offense was committed in furtherance of the conspiracy and as a part of it. A verdict on that theory requires submission of those fact issues to the jury.
The Court’s suggested instructions can be read as not requiring the jury to find the essential requirement of Pinkerton that the substantive offense was committed in furtherance of the conspiracy. Although the Pinkerton doctrine allows as a matter of course that all crimes committed in the furtherance of a conspiracy may be attributed to all co-conspirators, it provides an exception to that normal rule if an act done in furtherance of a conspiracy could not have been reasonably foreseen as a necessary and natural consequence of the conspiracy. Pinkerton, supra, 328 U.S. at 646-47, 66 S.Ct. at 1183-84, 90 L.Ed. at 1496-97. The suggested instructions can be read as swallowing up the Pinkerton exception аnd converting it into a substitute predicate for liability, namely, that an act not done in furtherance of the conspiracy can become an act of the conspiracy if it is foreseeable. The Court has done its best to salvage a rather undetailed effort by drafters and revisers of the Code to fit conspirator’s liability into the Code. It may have inadvertently created greater potential for trial error.
“At the heart of the guarantee of a fair trial is the ‘jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions * * *.’ ” State v. Collier, 90 N.J. 117, 122,
*478 with the purpose of promoting or facilitating its commission [an actor]:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit suсh crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
[N.J.S.A. 2C:5-2a (emphasis added).]
At a minimum, constitutional guarantees to a fair trial require that the statutory elements of this offense be charged to the jury. A jury must be instructed that the State has the burden of proving beyond a reasonable doubt that the murder committed by Bing and Rolle was pursuant to the conspiracy in Count I to carry a weapon unlawfully or to threaten another with the weapon. I agree with the Appellate Division that the evidence fell measurably short of allowing such a finding, but at least the jury must be asked to make the finding.
I am convinced that the Legislature would never intend that one be sentenced to prison for life as a convicted murderer on the basis of a “negligence” standard. With certain exceptions for motor-vehicle accidents, negligence will not even sustain a conviction of reckless manslaughter. The most reasonable construction of N.J.S.A. 2C:2-6b(4) is that the Legislature intended that the conspirator to the commission of an offense, like an accomplice to the commission of an offense, be punished as a principal. The model jury charge on N.J.S.A. 2C:2-6b(4) incorporates that understanding, ie., that only liability for the completed crimes that were the objects of the conspiracy is intended under N.J.S.A. 2C:2-6b(4). The model charge states in part: “the State alleges that the crime of_was committed by_, and that the defendant is legally accountable for the crime of_committed by _ because the defendant and _ allegedly conspired to commit that crime.” (Emphasis added.) Later the charge reads: “Thus, you must decide whether the defendant engaged in a conspiracy with_to commit the crime of__” Finally, it states: “In this case, after consideration of all of the evidence if you find beyond a reasonable doubt that _ committed the crime of_and also that the defendant conspired with_to commit that crime, then you must find the defendant Guilty of the crime of__” No liability is foreseen by that charge, drawn by a committee of judges and lawyers appointed by the Court, other than for the crime or crimes that were the object of the conspiracy.
Ill
In its long history, the crime of conspiracy has taken many bizarre turns. As noted, at one time the law punished conspiracy
Somewhat like the English judges did, the Court now punishes one who has no intent to kill more severely than one who was practically certain to kill. See Rhett, supra, 127 N.J. 3,
For affirmance in part; reversal in part; and remandment— Chief Justice WILENTZ and Justices HANDLER, CLIFFORD, POLLOCK, and GARIBALDI — 5.
Concur in part; dissent in part — Justices O’HERN and STEIN — 2.
Notes
An example of a minimally-appropriate Pinkerton charge is found in Alvarez, supra, involving a drug conspiracy with the attendant murder of federal agents. The jury was instructed:
If you find that a particular defendant is guilty of conspiracy as charged in Count I of the indictment [the drug indictment], you may also find the defendant guilty of either murder as charged in Count III of the indictment or assault as charged in Count IV of the indictment, or both, provided you find the essential elements of murder or assault or both as defined in these instructions have been established beyond a reasonable doubt; and provided you also find beyond a reasonable doubt:
First, that the murder or assault or both were committed pursuant to the conspiracy;
Second, that the murder or assault or both were reasonably foreseeable consequences of the [drug] conspiracy alleged in Count I; and
Three, that the particular defendant was a member of the conspiracy at the time of the murder or assault or both was committed.
Under the conditions just defined a defendant may be found guilty of a substantive count even though he did not participate in the murder or assault or both.
The reason for this is that a coconspirator committing a substantive offense pursuant to a conspiracy is held to be the agent of other conspirators as to acts which are reasonably foreseeable. [755 F.2d at 848 n. 22 (emphasis added).]