New Hampshire Bar Journal
2005 Fall, 14.
Purposely Negligent Revisiting New Hampshire's Accomplice Liability Precedent After State v. Anthony
New Hampshire Bar Journal Volume 46, No. 3, Pg. 14 Fall 2005 Purposely Negligent Revisiting New Hampshire's Accomplice Liability Precedent After State v. Anthony Bar Journal Author - Attorney James E. Harper*
New Hampshire Bar Journal Editor's Award
Actus non facit reum nisi mens sit rea
- "An act does not make a person guilty, unless the mind be guilty."
Can an accomplice purposely aid in the commission of an act that results in unplanned harm? To what extent may a person be an accomplice to a negligent crime? If S intentionally gives P the keys to his car, knowing that P is intoxicated and P loses control of the car and kills V, to what extent is S liable as an accomplice for V's death?
Prior to the New Hampshire Supreme Court's recent decision in State v. Anthony, a person could not be charged as an accomplice to an unintentional crime because an individual could not, as a matter of law, be an accomplice to a negligent crime.(fn1) Twenty years later, however, and following an amendment to New Hampshire's accomplice liability statute, the Court overruled its seminal accomplice liability case and held that the crime of accomplice to negligent crimes exists under New Hampshire law.(fn2 )
This article discusses the New Hampshire Supreme Court's recent per curiam decision in State v. Anthony and addresses accomplice liability for negligent crimes. Part I introduces accomplice liability. Part II discusses New Hampshire's former accomplice liability statute, RSA 626:8, III and IV. Part III reviews the precedent established by Etzweiler and also addresses the 2001 amendment to RSA 626:8, IV. Part IV provides an overview of the Anthony decision and Part V analyzes the impact of the Anthony decision.
I. Accomplice Liability
Accomplice liability is a means of holding a person liable for crimes committed by another.(fn3) In cases where a person is charged as an accomplice in the commission of a negligent or otherwise unintentional offense, the person must possess two states of minds:(fn4) (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and (2) the mental state required for commission of the offense, as provided in the definition of the substantive crime.(fn5)
Expressing the culpability requirement for accomplice liability as "intent," however, can be problematic.(fn6) The implication of "intent" is that the accomplice must want the principal to commit the crime (or know that it will take place).(fn7) Yet it seems illogical to charge a person as an accomplice in the commission of a negligent crime.(fn8) After all, how could a person intentionally aid in the commission of a crime that he was unaware he was committing?(fn9) Some courts analyze accomplice liability in this way, and find as a matter of law, that a person cannot be convicted as an accomplice to a crime of negligence.(fn10)
Conversely, other courts permit accomplice liability in such circumstances.(fn11) As one scholar observed, conviction of an accomplice in the commission of a crime of negligence should be permitted as long as the accomplice has the two mental states previously discussed - intent to assist in conduct that forms the basis of the offense and the mental state required for commission of the subsequent offense.(fn12)
Applying the majority view to the hypothetical proposed in the introduction, S should be treated as an accomplice in V's negligent death. First, S intended to encourage P to engage in the conduct that formed the basis of the offense, i.e., he intended to encourage P to drive while intoxicated which resulted in V's death. Second, S was criminally negligent in relation to V's death by encouraging P to drive while intoxicated.
On the other hand, if P, while driving at S's encouragement, had negligently fallen asleep, thereby killing V, S might not be an accomplice in this negligent homicide. The conduct that formed the basis of this homicide was the act of falling asleep while driving, and not the conduct that S intentionally encouraged, i.e., drunk driving.
Some commentators, however, insistently reject the doctrine of accomplice liability for unintentional crimes.(fn13) According to LaFavre and Scott, accomplice liability doctrine is most needed for crimes that prohibit specific culpable conduct, rather than for crimes that penalize an actor for causing an undesirable result.(fn14) They favor assessing an actor's culpability directly and limiting liability to cases where the actor is the legal cause of harm.(fn15)
II. The Statute
Legislation regarding the extent of accomplice liability generally falls into three categories:(fn16) (1) statutes that predicate accomplice liability solely on the intent to aid in the commission of a specific offense;(fn17) (2) statutes that are patterned after the Model Penal Code, requiring the accomplice to act with the intent to promote or facilitate the commission of the offense;(fn18) and (3) statutes that require only that the accomplice intentionally aid the principal's conduct and have the mens rea required by the underlying crime.(fn19) New Hampshire falls under the second category, relying on the Model Penal Code for guidance.(fn20)
Sections III and IV of RSA 626:8 lie at the center of the accomplice liability controversy.(fn21) The subsections state:
A person is an accomplice of another person in the commission of an offense if:
(a) With the purpose of promoting or facilitating the commission of the offense, he solicits such other person in committing it, or aids or agrees or attempts to aid such other person in planning or committing it; or
(b) His conduct is expressly declared by law to establish his complicity.
Notwithstanding the requirement of a purpose as set forth in paragraph III(a), when causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.
The Court has interpreted section III as placing the burden of establishing that the accomplice acted with the purpose of promoting or facilitating the commission of the substantive offense on the state.(fn22) Section III requires that the accomplice's conduct aided the principal in committing the offense, and that the accomplice had the purpose to "make the crime succeed."(fn23 )
Section IV, on the other hand, sets forth the elements of the substantive offense that the state has the burden of establishing against the accomplice.(fn24) "'When causing a particular result is an element of an offense,' the accomplice must act 'with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.'"(fn25) In other words, the accomplice must meet the required mens rea of the offense, but, if the principal's mental state is something less than purposeful, the State need only establish the lesser mens rea on the part of the accomplice to prove him or her guilty of the offense.(fn26) Thus, there are two types of accomplice liability crimes: (1) conduct crimes (those that do not have a result component); and (2) result crimes (crimes that have a result element). This article focuses on result crimes, where the State must prove that the defendant caused a particular outcome.
III. Prior Precedent
In Etzweiler, the defendant gave his car keys to a friend who he knew was intoxicated.(fn27) Shortly thereafter, the friend, while driving recklessly, collided with another car and caused the death of two of the passengers.(fn28) The grand jury indicted the defendant with, inter alia, negligent homicide as an accomplice.(fn29) When the defendant moved to quash all indictments against him, the superior court transferred five questions of law to the Supreme Court.(fn30) The Supreme Court, however, only addressed one of the questions: whether the legislature, in enacting RSA 626:8, intended to impose criminal liability upon a person who lends his automobile to an intoxicated driver but does not accompany the driver, when the driver's operation of the borrowed automobile causes death.(fn31)
Examining the legislative intent for creating RSA 626:8, the Court noted that the statute abrogated the common-law distinction between principals and accessories and narrowly defined those situations in which an individual could be held criminally liable for the conduct of another.(fn32) The state argued that the defendant aided the drunk driver in the commission of negligent homicide because he had the purpose of promoting or facilitating the offense of driving under the influence.(fn33) The Court, however, held that under RSA 626:8, the "accomplice must aid the primary actor in the substantive offense with the purpose of facilitating the substantive offense."(fn34) Because the indictments did not include all the elements constituting the offense, the Court dismissed the indictments against the defendant.(fn35)
Most notably, the Court opined that even if the indictments included all the elements of the constituting offense, the defendant could not be an accomplice to negligent homicide as a...