Accomplice Liability
It is not uncommon that multiple individuals will come together to commit a single crime. When multiple individuals jointly participate in a single criminal act, an issue arises as to who is responsible for which crime and to what degree. Generally speaking, this is referred to as accomplice liability. This chapter explores two situations in which multiple parties may be liable for a crime – complicity and vicarious liability. When individuals work together with a common criminal purpose they act with complicity. Individuals who assist in the commission of a crime will be held responsible to the same extent as the primary actor. Unlike complicity, vicarious liability imposes criminal liability on a defendant because of a special relationship between the principal perpetrator and the defendant.
Accomplice Liability
At early common law, parties to crime were divided into four categories.
- Principal in the first degree, a person who committed the crime – that is, the actual, primary perpetrator of the crime.
- Principal in the second degree, a person who was present at the scene and assisted the primary actor in the commission of the crime.
- Accessory before the fact, an individual who was not present at the scene of the crime, but helped the primary perpetrator prepare its commission.
- Accessory after the fact, a person who assisted the primary perpetrator after the crime (i.e., comfort, aid, concealment, etc.).
Most jurisdictions have abolished these distinctions and instead divide accomplice liability into two categories: accomplices and accessories. Under modern trends, principals and accomplices share equally in criminal responsibility; no distinction is made to separate the primary perpetrator and those individuals who assist the principal before or during the crime. AS 11.16.100. Accessories, on the other hand, are treated differently. Accessories are individuals who provide assistance after the crime was committed – these individuals are generally criminally liable for a separate, lesser offense.
Accomplice Liability Rationale
Accomplices are held criminally responsible to the same extent as the principal. In Alaska, this concept is referred to as legal accountability. AS 11.16.100. For purposes of legal accountability, it is immaterial whether the elements of a crime are satisfied by the defendant’s own behavior, by the behavior of another person for which the person is accountable, or both. This is because accomplice liability is derivative; when two individuals act in concert to commit a crime, they act as a single criminal in the eyes of the law. The policy for such a broad rule is three-fold: first, an individual who willingly participates in criminal activity should be responsible for the ultimate harm caused. The adage “in for a penny, in for a pound” summarizes the policy well. A criminal offense is more likely to be successful with more confederates. Second, the law presumes there is a deterrent effect from shared criminal liability – if the accomplice knows that she will be held accountable to the same extent as the principal, the accomplice may choose to not participate. Finally, it is believed that society should not bear the burden of determining who is the primary perpetrator and who is an accomplice – for purposes of establishing liability, hypertechnical categories are less important. Everyone agrees a crime was committed.
Although the law treats principals and accomplices equally for purposes of culpability, the law allows judges to treat principals and accomplices differently for purposes of sentencing. See e.g., AS 12.55.155(d)(2). Thus, it is not uncommon that an accomplice will receive a more lenient punishment than that of a principal.
Example of Accomplice Liability
Bob and Sue are close friends, and both are in need of a little extra spending cash. Bob approaches Sue and tells her that the local hardware store has lax security and would be easy to rob. Bob suggests that they both walk into the store before closing and demand all of the money from the cash register. Bob tells Sue that he has been watching the place for several weeks and there are generally few customers in the store around closing time. Further, Bob assures Sue that no one will get hurt; they won’t use real guns. Instead, Bob suggests they use plastic lookalike guns. Sue balks, telling Bob that she doesn’t want to go into the store. Sue tells Bob that she’ll help but only by driving the car. She tells Bob that she will drop him off in front of the door shortly before closing time and keep the car running. Once Bob gets the money, he can jump into the vehicle. The next day, the robbery occurs exactly as Sue suggested – that is, Bob robs the hardware store and Sue acts as the getaway driver. In this example, both Bob and Susan are guilty of Robbery in the First Degree. The law does not distinguish between principals and accomplices. Susan will not escape criminal liability simply because she was the getaway driver.
Accomplice Actus Reus
Although accomplice liability is broad, it is not limitless. One of the central components of accomplice liability is that an accomplice must voluntarily act in some manner to aid or abet in the planning or commission of the offense. The term “aid or abet” means to help, assist, facilitate, or counsel another person. AS 11.16.110. Examples of actions that qualify as aiding or abetting a criminal act are helping plan the crime, driving a getaway vehicle after the crime’s commission, and luring a victim to the scene of the crime.
However, neither mere presence at a scene of a crime, nor concealment of one’s knowledge about a crime, is sufficient to ground criminal liability. The law requires the accomplice to engage in a voluntary act that demonstrates their assistance.
Example of a Case Lacking Voluntary Act
Remember Clara and Linda from Chapter 1 and their joint shopping trip? In that example, Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. After they enter the lingerie department, Linda surreptitiously places a bra into her purse. Clara watches, horrified, but does not say anything, even though a security guard is standing nearby. As Linda and Clara leave the store, an alarm is activated. Linda and Clara run away with the security guard in pursuit. In this case, Clara has probably not committed a voluntary act required for accomplice liability. Although Clara was present at the scene of the crime (theft) and did not alert the security guard, mere presence at the scene is not sufficient to constitute accomplice criminal liability. Clara fled the scene when the alarm went off, but her presence at the scene of a crime combined with flight is still not enough to comprise the accomplice criminal act. Thus, only Linda is subject to criminal prosecution for this offense. Clara should not be prosecuted.
Miller v. State, 866 P.2d 130 (Alaska App. 1994)
In the following case, take notice of how difficult it can be for the government to prove which actor is a principal and which actor is an accomplice. As you will see, the law makes no distinction.
866 P.2d 130
Court of Appeals of Alaska.
George L. MILLER, Appellant,
v.
STATE of Alaska, Appellee.
No. A–3954.
Jan. 7, 1994.
OPINION
BRYNER, Chief Judge.
George L. Miller was convicted, following a jury trial, of first-degree robbery. Superior Court Judge Mark C. Rowland sentenced Miller to fifteen years’ imprisonment. Miller appeals, claiming that the trial court … misinstructed the jury on accomplice liability. We affirm.
FACTS
In 1987, David and Mavis McClurg owned and operated a gold mine in northwest Alaska, near Kotzebue. They lived in Anchorage with their fifteen-year-old daughter Jackie and ran a jewelry shop in their house.
On September 21, 1987, Jackie McClurg was staying at the house while her parents were at the mine. In the evening, she got a phone call from a man who said he needed to drop off some papers for her father. Shortly after 10:00 p.m., a car pulled into the McClurgs’ driveway, and a man wearing a red hat got out and came to the front door. As Jackie opened it, the man grabbed her, turned her around, and told her that he had a gun and this was a robbery. A second, shorter man followed the first man into the McClurg home. The men forced Jackie to take them downstairs to the jewelry shop, where they tied her up and began taking jewelry.
Just then, Belinda Nix and Gary Greener, friends of the McClurgs, drove up to the house. As Nix and Greener approached, they saw an unfamiliar car with a man behind the wheel in the driveway; the driver honked the horn and started to drive away.
Nix and Greener went into the house, where they saw the second, shorter man heading out the back entrance near the shop. Then the first, taller man pushed his way past Greener and went out the front door. Nix and Greener heard Jackie call out and found her tied up in the shop. They called the Alaska State Troopers, who eventually determined that more than $50,000 in gold and jewelry had been taken by the robbers.
Jackie McClurg identified the taller man as Dan Finnigan, a former employee at the McClurg mine. Earlier that day, Finnigan had come to the McClurgs’ house and had tried unsuccessfully to collect wages for his work at the mine. Finnigan matched descriptions given the troopers by Nix and Greener.
Several days later, on September 24, 1987, the troopers arrested Finnigan for the robbery. They also arrested a friend of Finnigan’s, Randy Ringler, whom they suspected as the second, shorter robber. Greener and Nix later identified Finnigan and Ringler as the two men they had seen in the McClurg’s house.
In October of 1987, the troopers received word that a woman named Neva Johnson had been seen wearing a watch stolen from the McClurgs’ shop. On October 21, 1987, they contacted Johnson, who said that her boyfriend, Michael Casalichhlio had given her the watch. When contacted by the troopers, Casalichhlio denied being involved in the robbery but turned over several stolen items that he admitted receiving from George Miller.
Casalichhlio eventually implicated Miller as the driver of the getaway car in the robbery. Casalichhlio also revealed that, soon after the robbery was committed, he accompanied Miller on an airline trip to Florida, using tickets purchased with robbery proceeds. The troopers also located two other friends of Miller, Aaron and Sue Foltz, to whom Miller had admitted participating in the robbery. Before the robbery, Aaron and Sue Foltz had also heard Miller planning the crime.
Information given to the troopers by Casalichhlio and the Foltzes also indicated that, prior to the robbery, Miller and Casalichhlio had engaged in a joint venture trafficking cocaine that Casalichhlio had obtained through a burglary involving a cocaine dealer. Casalichhlio evidently furnished the drugs to Miller, who was responsible for selling them; he would then share the proceeds with Casalichhlio. Finnigan, and to a lesser extent Ringler, had worked for Miller as runners, delivering cocaine and collecting money. Miller and Casalichhlio had planned to use profits from their cocaine sales to finance a trip to Florida, where they intended to buy two additional kilograms of cocaine for resale in Alaska. Miller, however, had begun to use cocaine heavily himself and had failed to collect enough money in sales to keep current on his payments to Casalichhlio. Prior to the McClurg robbery, he had become indebted to Casalichhlio for between $4,000 and $4,500. Finnigan, in turn owed a substantial sum of money to Miller. When it became apparent that there would be insufficient funds to finance the trip to Florida for additional cocaine, Miller hit upon the idea of the McClurg robbery as an alternative means to finance the Florida trip.
Based on the foregoing information, the state secured indictments charging Miller, Finnigan, and Ringler with the McClurg robbery and Casalichhlio with theft for receiving property stolen in the robbery. When the indictments were issued, Miller, who had never returned to Alaska from his trip to Florida, remained at large. Finnigan, Ringler, and Casalichhlio were tried and convicted.
Soon after the trial ended, however, Ringler wrote Finnigan a letter in which he (Ringler) acknowledged his own participation in the McClurg robbery but proclaimed Finnigan’s innocence. Ringler identified himself as the second, shorter man in the robbery and claimed that the first, taller man had been Miller, not Finnigan. According to Ringler’s letter, the driver of the getaway car had been someone named “Bill,” whose last name he did not know.
As a result of Ringler’s letter, Finnigan was awarded a new trial. Before the second trial, Miller, who had been arrested in Texas on a fugitive warrant, was extradited to Alaska. His trial was consolidated with Finnigan’s second trial. At trial, the state relied primarily on its original theory of the case—that Finnigan had been the taller of the two robbers who entered the McClurg home and that Miller had been the getaway driver and had masterminded the robbery. Finnigan, relying on Ringler, defended on the theory that Miller had been the taller robber and that another, unknown man had driven the getaway car. Although Miller did not testify or present witnesses, he attempted to establish that none of the state’s evidence against him was sufficiently credible to prove his participation in the robbery.
INSTRUCTIONS ON ACCOMPLICE LIABILITY
Miller contends that the trial court’s instructions on accomplice liability were deficient. Miller was evidently indicted on the theory that he was the getaway driver in the robbery. At trial, an element of confusion as to Miller’s role arose when Ringler testified that Miller and Ringler had entered the McClurg house together, that a third man named “Bill” had driven the getaway car, and that Finnigan was entirely innocent of the alleged crime.
In an attempt to address this problem, the state sought jury instructions allowing Miller to be convicted as either an accomplice (for being the driver) or as a principal (for being one of the two men who had entered the house). The trial court, while initially receptive, ultimately decided that, since Miller had been indicted as an accomplice for driving the getaway car, he could be convicted only on that theory. [This decision was incorrect.]
[…]
Although Miller concedes on appeal that [the] instruction conforms with Alaska Pattern Jury Instruction 16.100–.110(2) … he claims … that the instruction was so vague that it allowed his conviction as a principal.
We find this argument meritless. Miller in effect posits that the jury might have convicted him as an accomplice for being a principal: he reasons that, under the challenged instruction, the jury might have found that he was one of the men who entered the McClurg house, might have concluded that the two robbers aided and abetted each other, and so might have convicted him as an accomplice.
This theory proceeds from a strained interpretation of the evidence and an attenuated reading of the challenged instruction. Moreover, the theory is premised on a fundamentally flawed view of accomplice liability, for it mistakenly assumes that a defendant indicted as an accomplice must be convicted as an accomplice and that it would therefore have been error to allow the jury to convict him as a principal.
However, the legal distinction between principals and accomplices has long been abrogated in Alaska. It is well-settled that a defendant charged as a principal may be convicted as an accomplice; the converse is also true.
Here, the trial court, evidently accepting Miller’s argument that a contrary result would be legally impermissible, sought to limit the state to the original theory upon which it indicted Miller: that Miller was guilty of robbery as an accomplice for driving the getaway car. As a matter of law, however, Miller was properly subject to conviction as either a principal or as an accomplice. Hence, even if the jury instructions did not succeed in narrowing the charge to accomplice liability and allowed Miller to be convicted as a principal, plain error could not be found.
CONCLUSION
The conviction and sentence are AFFIRMED.
Accomplice Mens Rea
The culpable mental state required for accomplice liability varies, depending on the jurisdiction. In Alaska, accomplice liability is a dual intent crime. The accomplice must intend to promote or facilitate the commission of the crime, and act with the underlying culpable mental state (i.e., intentionally, knowingly, or recklessly) with respect to the harm caused. AS 11.16.110. In other words, the accomplice need not share the principal’s criminal purpose, but must intend to promote or facilitate the commission of the principal’s conduct. While this may seem like an overly complicated proposition, such a result is necessary given that there is no distinction between principals and accomplices.
Example of Accomplice Culpable Mental State
Riley and another man, Portalla, opened fire on an unsuspecting crowd of young people who were socializing around a bonfire on the Tanana River near Fairbanks. Two of the young people were seriously wounded. The investigators could not determine which firearm fired the wounding shots. The bullet recovered from the body of one victim was so deformed that it could not be matched to either Riley’s or Portalla’s weapon, and the bullet that wounded the other victim passed through the victim’s body and was never recovered. In short, the government could not prove which individual – Riley or Portalla – injured the victims, but the government could conclusively prove that the injuries were inflicted by one of the two. Under this scenario, both Riley and Portalla are guilty of first-degree assault. The prosecution is not required to prove which defendant fired a particular bullet. Instead, the prosecution must prove that (1) Riley solicited, encouraged, or assisted Portalla’s act of shooting at the victims, and (2) that Riley did so with the intent to promote or facilitate the conduct (or vice versa). To learn more about how the court described the dual culpable mental states with regards to accomplice liability, read Riley v. State, 60 P.3d 204 (Alaska App. 2002).
You be the Judge… (5.1)
The Natural and Probable Consequences Doctrine
The crux of accomplice liability is that the principal’s blameworthiness is imputed to the accomplice to ensure fair accountability of all criminal actors. Accomplice liability can be far reaching – a person who encourages or facilitates the commission of a crime will be held as an accomplice for the specific crime aided, but also for crimes that are the natural and probable outcome of the criminal conduct. An accomplice is responsible for all reasonably foreseeable crimes committed in furtherance of the criminal enterprise. This doctrine is similar to the foreseeability standard discussed with legal causation. Under the natural and probable consequences doctrine, if the defendant assists the principal with the intent to further a specific crime’s commission, and the principal commits a different but foreseeable crime during the defendant’s assistance, the defendant could be liable as an accomplice for the new crime. Several jurisdictions have rejected this doctrine as an overly harsh extension of accomplice liability, but as you will see below, Alaska has not.
Belarde v. State, 383 P.3d 655 (Alaska 2016)
As you read the following case consider whether it is fair to hold the defendant responsible for first-degree robbery given his claim that he did not know that his co-defendant was armed with a pistol. Is robbery a foreseeable crime when the original crime was shoplifting? Should a defendant’s guilt as an accomplice to one crime act as a per se basis for holding him accountable for a related, but unintended crime? Also, it should be noted that although the Belarde court discusses the applicability of the natural and probable consequence doctrine, it choose to affirm the defendant’s conviction on different grounds, beyond the scope of this section.
383 P.3d 655
Court of Appeals of Alaska.
Jesse Cecil BELARDE, Appellant,
v.
STATE of Alaska, Appellee.
No. A–11321.
May 20, 2016.
OPINION
Judge, MANNHEIMER.
Jesse Cecil Belarde and two friends, Rolando Barlow and Robert Smith, entered an Anchorage Fred Meyer store for the purpose of stealing a battery for Belarde’s car.
(Belarde’s car had recently broken down, and it was inoperable unless the battery was recharged. After concluding that it would take too long to recharge the battery, Belarde borrowed another car, and he and his friends went looking for a battery to steal.)
Inside the Fred Meyer store, Belarde went to the car battery section and identified the correct battery for his vehicle. His friend Smith then picked up the battery and attempted to carry it out of the store (without paying).
Two of the store’s loss-prevention employees intercepted Smith in the arctic entry. Smith dropped the battery and punched one of the employees in the face. Belarde’s other friend, Barlow, then hit the other loss-prevention employee in the face. At this point, Smith pulled a pistol from his waistband, chambered a round, and ordered the loss-prevention employee to back away. Belarde then picked up the battery from the floor, and he and his friends left the store (with the battery).
Based on this incident, Belarde was convicted of both the theft of the battery and first-degree robbery. The robbery charge was based on the theory that Belarde and his accomplices took the battery from the immediate presence of the store employees through the use of force (the basic crime of second-degree robbery as defined in AS 11.41.510(a)), and by threatening the employees with a pistol (thus elevating the crime to first-degree robbery as defined in AS 11.41.500(a)).
In this appeal, Belarde argues that his first-degree robbery conviction must be reversed because his jury was misinstructed regarding the rules for when one accomplice to a crime (in this case, Belarde) can be held legally accountable for the intentions of another accomplice to the crime (in this case, Smith).
[…]
A more detailed look at Belarde’s claim on appeal
Belarde acknowledges that he was properly found guilty of stealing the car battery. (In fact, when Belarde’s trial attorney delivered his summation to the jury, he conceded that Belarde should be convicted of theft.) But Belarde argues that his robbery conviction should be reversed because of a faulty clause in the jury instruction on the elements of first-degree robbery.
Belarde’s attack on the jury instruction is based on the defense that he offered at trial. Belarde testified that, when he picked up the battery and ran out of the store, he was unaware that Smith had used a pistol to threaten the employees.
(Belarde asserted that he had been using his mobile phone as he walked out of the store, and thus his attention was initially distracted away from the fight that occurred between Smith, Barlow, and the two loss-prevention employees. Belarde declared that he remained unaware that Smith had used the pistol until they were driving away from the store, when he listened to Smith and Barlow recounting the events that had just occurred.)
Turning to the jury instruction on the elements of first-degree robbery, paragraph 3 of this instruction told the jurors that the State was required to prove that “[Belarde] or another participant intended to prevent or overcome … resistance to the taking of the property [by using force]”. (Emphasis added) Pointing to this italicized language, Belarde argues that this jury instruction improperly deprived him of his defense to the first-degree robbery charge—because this instruction told the jurors that, as long as Smith intended to accomplish the taking by armed force (i.e., by threatening the store employees with a pistol), it did not matter whether Belarde personally intended to accomplish the taking by force.
[…]
The “natural and probable consequences” theory of accomplice liability
Belarde’s argument ignores the criminal law doctrine that a person who participates in a joint criminal enterprise (such as the theft in this case) is deemed to intend the natural and probable consequences of that enterprise—including any reasonably foreseeable related criminal offenses committed by the person’s accomplices.
As the California Supreme Court explained in People v. Prettyman, 926 P.2d 1013, 1019–1020 (1996):
At common law, a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that was a “natural and probable consequence” of the crime aided and abetted.
Although legal commentators have questioned whether it is proper to hold accomplices liable for all reasonably foreseeable crimes committed in pursuance of a criminal enterprise, most courts adhere to the “natural and probable consequences” doctrine. See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 13.3(b), Vol. 2, pp. 360–63 (criticizing the doctrine but describing it as the “established rule”). And under this doctrine, if the jury concluded that it was reasonably foreseeable that Smith would threaten the loss-prevention officer with a firearm, then Belarde could properly be found guilty of first-degree robbery.
There is no Alaska case expressly adopting the “natural and probable consequences” doctrine of accomplice liability. And, in any event, it is a jury question whether an accomplice’s crime was “reasonably foreseeable” under the facts of a given case—and Belarde’s jury was not asked to resolve this question.
The foregoing discussion of the “natural and probable consequences” doctrine is relevant only because Belarde’s attack on the jury instruction is raised as a claim of plain error. That is, Belarde must show that it was obvious error for the trial judge to instruct the jurors that Belarde could be convicted of robbery if any participant in the theft (Belarde or Smith or Barlow) used force or threatened the use of force to prevent or overcome resistance to the theft of the battery. The “natural and probable consequences” doctrine is the predominant rule in American jurisdictions; and under this doctrine, the challenged jury instruction was not obvious error—indeed, it was not error at all—so long as the jurors found that Belarde’s accomplice’s use of force was reasonably foreseeable.
But to resolve Belarde’s case, we need not decide whether to adopt the “natural and probable consequences” doctrine of accomplice liability—because there is a second, more case-specific reason why we conclude that the challenged jury instruction was not plain error.
[…]
Conclusion
The judgement of the superior court is AFFIRMED.
Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted
Although accomplice liability is derivative, ultimate responsibility is not. The principal need not be found guilty (or even prosecuted) for accomplice liability to attach. See AS 11.16.110(a)(2); Vaden v. State, 768 P.2d 1102, 1106 (Alaska 1989) cert. denied 490 U.S. 1109 (1989). The focus is on the accomplice’s conduct, rather than the principal’s conduct. In Vaden, the Alaska Supreme Court found that a professional guide could be convicted as an accomplice to hunting violations when the principal was an undercover government agent. The government agent was immune from prosecution, whereas the hunting guide was not. See id. Thus, a defendant can be liable for a crime even though he did not commit it and the defendant who did was spared prosecution or found not guilty.
Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted
Sam shows up drunk at his friend Abel’s house and tells Abel he wants to “get retribution” from his ex-girlfriend Maria. Sam wants to break into Maria’s house and steal a set of diamond earrings he gave Maria the previous Christmas. Sam asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel drives Sam to Maria’s house and waits in the car with the engine running. Sam breaks into Maria’s house, sneaks into her jewelry box, and recovers the earrings. Abel drives Sam away from the house. Before they get far, police stop Abel’s car and transport both to the police station for questioning. They are taken to separate rooms for interrogation. The police officer who interrogates Sam is a rookie and forgets to read Sam his Miranda rights. Abel, in the next room, confesses to the entire plan after being advised of his Miranda rights. Maria refuses to cooperate as she fears reprisal from Sam. The district attorney decides not to prosecute Sam because of the tainted interrogation. In this case, Abel could still be prosecuted for burglary and theft as an accomplice even though Sam is not prosecuted.
Accomplice Liability – Renunciation
An accomplice can escape criminal liability if the accomplice “renounces” her criminal conduct before the crime is completed. See AS 11.16.110(a)(1) Renunciation is an affirmative defense to accomplice liability. Criminal defenses will be explored in detail in subsequent chapters, but for now, remember that an accomplice can avoid prosecution if (1) the accomplice terminates her participation before the crime is committed; (2) the termination is a voluntary and complete renunciation, and (3) she timely warns law enforcement or takes reasonable efforts to prevent the crime. A mere “change of heart” is insufficient. Renunciation is not “voluntary and complete” if it is motivated because she thinks the crime has been detected by law enforcement or that she is simply postponing the crime until a future time. See Hale v. State, 764 P.2d 313 (Alaska App. 1988).
Exercises
Answer the following question. Check your answer using the answer key at the end of the chapter.
- Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has Penelope committed robbery? Why or why not?
