Defendants Russell, Bekka, and Burroughs engaged in a gun fight in a public area that serves as a pedestrian thoroughfare at the Red Hook Housing Project in Brooklyn. During the fight, a public school principal looking for a truant was fatally shot by a stray bullet. All three defendants were charged with second degree murder under N.Y. Penal Law § 125.25 (1), (2). Two separate juries, one for Burroughs and the other for Russell and Bekka, were impaneled contemporaneously. Ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed the principal. The prosecution's theory was that each defendant acted with the mental culpability required for the commission of the crime and that each intentionally aided the defendant who fired the fatal shot. Both juries convicted defendants of second degree, depraved indifference murder. N.Y. Penal Law § 125.25(2).
Whether adversaries in a deadly gun battle that results in the death of an innocent bystander share the "community of purpose" necessary for accomplice liability.
Yes, there is "community of purpose" among adversaries who intentionally aid and encourage each other to engage in mutual combat that causes the death of a bystander.
A depraved indifference murder conviction requires a finding that the defendant recklessly engaged in conduct which created a grave risk of death to another person and thereby caused the death of another person. New York's Penal Law § 125.25(2). One is liable as an aider or abettor of depraved indifference murder under New York's general accomplice liability statute (N.Y. Penal Law § 20.00) when one has the same mental state as the actor who caused the death and intentionally aided the murderer in engaging in such conduct. See People v. Kaplan, 76 N.Y.2d 140, 144 (N.Y. 1990). A person who is engaged in accessorial conduct may not necessarily be held responsible as a principal simply because he might have been helpful or of use to the actual perpetrators of the crime. The prosecutor must prove that the accomplice had the mental culpability for the commission of the crime. See id. at 145. "Whether a homicide is committed 'with a design to effect' death usually depends on adequate proof of such a design by each person charged." People v. Monaco, 14 N.Y.2d 43, 46 (N.Y. 1964).
In accordance with this subjective intent requirement, the Court of Appeals has adopted the "community of purpose" test for determining accomplice liability from People v. La Belle 18 N.Y.2d 405, 412 (N.Y. 1966). Under the "community of purpose" test, acts undertaken in relative innocence and without a conscious design to advance the principal's crime will not support a conviction for accomplice liability. Kaplan at 145.
To find accomplice liability, there must be an intent to assist in the commission of a crime. It is not necessary, however, that specific intent be an element in the primary crime. The Court of Appeals in People v. Flayhardt, 72 N.Y.2d 737, 741 (N.Y. 1988), construed N.Y. Penal Law § 20.00 as not requiring specific intent within the meaning of N.Y. Penal Law § 15.05(1) when the substantive crime does not require such intent. In Flayhardt, the defendants were convicted of aiding and abetting a criminally negligent homicide, a crime that does not require specific intent under N.Y. Penal Law § 125.10.
In denying defendants' challenges to the sufficiency of the evidence, the court in Russell upheld the juries' findings that each of the three defendants was guilty of depraved indifference murder.
The Russell court stated that depraved indifference murder does not require the prosecution to prove which defendant fired the fatal shot as long as the evidence sufficiently establishes that each defendant acted with the requisite mental culpability and that each defendant "intentionally aided" the defendant who fired the shot. Russell at para. 5 (citations omitted).
The court extended the "community of purpose" standard required for accomplice liability to adversarial parties. The fact that defendants set out to injure or kill each other rather than the ultimate victim does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused the murder. Id. The court illustrated the point using a lower court case involving adversaries in a drag race on a residential street. Russell at para. 6 (discussing People v. Abbott, 445 N.Y.S.2d 344 (N.Y. App. Div. 1981) (holding the defendant liable because he intentionally participated in an inherently dangerous and unlawful activity and therefore shared the necessary culpability for accomplice liability)); see also id. (discussing People v. Fabian, 586 N.Y.S.2d 468 (N.Y. App. Div. 1992) (stating that although defendants were trying to harm each other, they acted in concert to create an explosive condition that resulted inevitably in the victims' death); Alston v. State, 662 A.2d 247 (Md. 1995) (holding evidence sufficient to support a jury finding that rival groups tacitly agreed, pursuant to an "unwritten code of macho honor," that there would be mutual combat and that each group aided, abetted, and encouraged its adversary to engage in urban warfare)).
Following Russell, a showing of a subjective intent between adversaries to cooperate with one another is not required to establish a community of purpose. Instead, adversarial parties acting in concert manifest the conduct and intent required to be found guilty under the accomplice liability statute.
The court distinguished the facts of the instant case from a case in which there was an unanticipated or surprise attack, defendants in this case tacitly agreed to engage in and to continue a private war with high-powered automatic weapons in the middle of a densely populated housing complex. The defendants' conduct placed the lives of innocent bystanders at risk and ultimately caused the murder.
The court does not specify the minimum involvement necessary to satisfy the "intentionally aid" requirement in an adversarial setting. This has serious repercussions in defining the conduct of urban gang warfare. Where an individual is a member of a group which aids, abets and encourages an adversary to engage in urban warfare, is he liable for any violent acts performed by members of the group (or in the name of the group), or is some level of personal involvement in the actual violence required?
In Russell, the three defendants shot at each other almost simultaneously. Is it more likely after Russell that a future court would impose liability on urban gang warfare that occurs over the course of a longer time period? Where the provocation and retaliatory acts are separated by a significant time delay, as in a feud, and a bystander is killed during the retaliation, will accomplice liability attach to the provoker?
The Supreme Court of Pennsylvania faced similar facts in Pennsylvania v. Gaynor, 648 A.2d 295 (Pa. 1994). There the defendant had engaged in an exchange of gunshots with the intended victim. A shot from the intended victim's gun struck and killed a child. Although neither combatant fired in self-defense and the court found no conspiracy or joint purpose, the court found intent on defendant's part to engage in the combat which resulted in a child's death. This intent, on the part of an adversary who did not fire the lethal gunshot, was sufficient to support a conviction for first degree murder against that adversary.
The Russell court cited, Alston v. Maryland, 662 A.2d 247 (Md. 1995), in which the Court of Appeals of Maryland found the defendant guilty of second degree murder on a depraved heart theory. In Alston, the fact that defendant and shooter were engaged in gun battle against each other compelled a finding that each defendant aided and abetted the shooter. The aid formed the basis of a tacit agreement to engage in combat.
In Rivers v. Commonwealth of Virginia, 464 S.E.2d 549 (Va. Ct. App. 1995), the Court of Appeals of Virginia, on similar facts, found defendant not guilty of second degree murder. After acknowledging that the theory of transferred intent did not apply, the court also refused to find a "concert of action" because the defendant and the party who fired the fatal shot were acting in opposition to one another; they were not co-felons acting in concert.
Where evidence tended to show that defendant, and not co-combatant, fired the shot which killed a bystander, the Supreme Court of Arkansas, in Scott v. Arkansas, 795 S.W.2d 353 (Ark. 1990), affirmed a conviction for first degree murder. An implication of the decision is that criminal liability for premeditated murder would not attach under Arkansas law, despite mutual combat, had the fatal shot been fired by the co-combatant and not the defendant.