State v. Formella

*120Dalianis, J.,

concurring specially. I agree with the majority that the defendant, Paul Formella, did not wholly deprive his complicity of its effectiveness, as that phrase has been interpreted by courts with provisions similar to RSA 626:8, VI(c) (2007), and by the drafters of the Model Penal Code. I write separately because I reach this result by using a slightly different analysis from that of the majority. While the majority focuses upon the ambiguity of the language of RSA 626:8, VI(c), my focus is upon the fact that this provision derives from the Model Penal Code. The court’s longstanding practice is to look to the Model Penal Code commentaries for guidance when interpreting analogous New Hampshire statutes. State v. Donohue, 150 N.H. 180, 183 (2003). I see no reason to depart from this practice in this case.

The defendant’s principal appellate argument is that the evidence was insufficient to find him criminally liable for the conduct of another beyond a reasonable doubt. To prevail upon his challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. MacDonald, 156 N.H. 803, 804 (2008). When the evidence is solely circumstantial, it must exclude all rational conclusions except guilt. Id. Under this standard, however, the court still considers the evidence in the light most favorable to the State and examines each evidentiary item in context, not in isolation. Id.

RSA 626:8 (2007) provides, in relevant part, that an individual is criminally liable for the conduct of another when he acts as an accomplice in the commission of an offense. RSA 626:8,11(c). A person is an accomplice when “[w]ith the purpose of promoting or facilitating the commission of [an] offense, he . . . aids or agrees or attempts to aid [an]other person in planning or committing” the offense. RSA 626:8, 111(a). RSA 626:8, VI(c) further provides, however, that a person is not an accomplice if he “terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness in the commission of the offense or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.”

As the defendant concedes, he became an accomplice when he agreed to act as a lookout. See State v. Merritt, 143 N.H. 714, 718 (1999). He argues that the evidence compelled a finding that nonetheless he was immune from liability because he “terminate^] his complicity prior to the commission of the offense and wholly deprive[d] it of effectiveness in the commission of the offense” when he left his lookout position. RSA 626:8, VI(c). The State counters that merely abandoning his lookout post was insufficient to *121terminate his complicity. The State argues that to terminate his complicity, the defendant had to “make some effort to actually prevent the crime from occurring,” which he did not do.

Resolving this dispute requires interpretation of RSA 626:8, VI(c). RSA 626:8 is based upon Model Penal Code section 2.06. See State v. Anthony, 151 N.H. 492, 494 (2004); MODEL PENAL CODE § 2.06, at 295-96 (Official Draft and Revised Comments 1985). To interpret RSA 626:8, VI(c), therefore, the court looks to the Model Penal Code and its commentaries for guidance. See Donohue, 150 N.H. at 183.

RSA 626:8, VI(c) tracks the language of Model Penal Code section 2.06(6)(c). Model Penal Code § 2.06, at 296. This part of the Model Penal Code “establishes three special defenses to a charge that one is an accomplice. . . . [T]he third [of these defenses] relates to a termination of the actor’s complicity prior to the commission of the offense.” Id. at 298. “Termination requires that the actor wholly deprive his conduct of its effectiveness in the commission of the offense or that he give timely warning to law enforcement authorities or otherwise make a proper effort to prevent the commission of the offense.” Id.

According to the drafters of the Model Penal Code, the “general principle advanced” in Model Penal Code section 2.06(6)(c) “is that the accomplice must deprive his prior action of its effectiveness.” Id. cmt. 9(c) at 326. The action that suffices varies with the kind of aid provided. Id. For instance, if the accomplice provided arms to the principal, then merely stating that he withdraws from the aid “ought not to be sufficient; what is important is that he get back the arms,” thereby wholly depriving his aid of its effectiveness in the commission of the offense. Id. By contrast, if the aid given consists of merely encouraging the principal to commit the offense, then “countermanding disapproval” may suffice to nullify the aid’s influence, provided it’s heard in time to allow those planning to commit the crime to reconsider their actions. Id. Because there will be cases in which the only way that an accomplice can deprive his conduct of effectiveness is to actually prevent the crime, the drafters included informing law enforcement as a method of termination. Id. As “[t]he sort of effort that should be demanded turns so largely on the circumstances,” the drafters thought it inadvisable to formulate a more specific rule, and instead crafted a catch-all that provides immunity where the accomplice “otherwise makes proper effort to prevent the commission of the offense.” Id. at 296, 326.

Courts interpreting state analogs to Model Penal Code section 2.06 have uniformly held that for termination to be effective, it must, at a minimum, be communicated to the principal. See People v. Quiroz, 593 N.E.2d 675, 678 (Ill. App. Ct. 1992). “A mere change of heart, flight from the crime scene, apprehension by the police, or an uncommunicated decision not to carry out *122his part of the scheme will not suffice.” 2 W. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.8(d) at 366 (2d ed. 2003); see State v. Adams, 623 A.2d 42, 49 (Conn. 1993). “A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the scene.” People v. Lacey, 200 N.E.2d 11, 14 (Ill. App. Ct. 1964). “Rather, it is necessary that he: (1) repudiate his prior aid, or (2) do all that is possible to countermand his prior aid or counsel and (3) do so before the chain of events has become unstoppable.” LAFAVE, supra at 366; see Adams, 623 A.2d at 49.

With this understanding of what it means to terminate one’s complicity to avoid liability as an accomplice, the next step in my analysis is to examine whether a rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found the defendant criminally liable for the conduct of another.

I agree with the majority that the evidence was sufficient. A rational trier of fact, viewing all of the evidence and the inferences therefrom in the light most favorable to the State, could have found that the defendant did not terminate his complicity when he abandoned his lookout post. To terminate his complicity, the defendant had to wholly deprive his earlier aid to the principals of its effectiveness. His earlier assistance enabled the principals to commit the offense without fear of being caught. By merely abandoning his post as a lookout, the defendant did nothing to deprive his earlier assistance of its effectiveness. For all the principals knew, he was still acting as a lookout and they could continue committing the offense without fear of being caught. When he left his post, the defendant did nothing to dispel this belief. Had he done something to dispel this belief, such as announcing to the principals that he was leaving his post, the principals could have had an opportunity to reconsider their actions. Without at least informing them that he was leaving, the defendant did not wholly deprive his earlier assistance to the principals of its effectiveness.

Accordingly, I agree with the majority that the defendant’s conviction for criminal liability for the conduct of another must be affirmed.