Peppi Miller was arrested for drug possession and agreed to serve as an informant for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Miller was given $400 by agents and arranged to illegally purchase a handgun from Tony Roy. Roy served as lookout while Miller met with Steve Ross. Ross handed Miller a gun and then demanded that Miller return the firearm. Ross then pointed a loaded revolver at Miller’s head and ordered Miller to drop the money on the ground. The police responded to Miller’s distress signal and quickly arrested Ross.

         The District of Columbia Court of Appeals concluded that Roy intended the firearm to be sold to Miller and there was no indication that Roy planned or possessed advance knowledge of the robbery. Would Roy be liable for the robbery based on the fact that this was the natural and probable consequence of aiding and abetting the selling of the handgun to Miller? The District of Columbia court recognized that perhaps Roy should have known that it was conceivable that Ross might rob Miller. This, however, was not the same as asserting that the robbery would follow in the ordinary course of events or that it was the natural and probable consequence of selling the handgun. The court stressed that this test “presupposes an outcome within a reasonably predictive range.”

         Do you agree with this judgment? Does every illegal drug transaction or sale of an illegal firearm involve the natural and probable likelihood of an armed robbery? See Roy v. United States, 652 A.2d 1098 (D.C. Ct. App. 1995).

         Roy v. United States, 652 A.2d 1098 (D.C.Ct. App. 1995). The appellate court held that defendant Roy did not have a purpose to participate in the armed robbery of the undercover agent. There was no evidence that Roy planned or knew of the robbery. The robbery seems to have been a spur of the moment decision by Ross who handed Miller the handgun and then asked for its return and proceeded to rob Miller. Roy’s leading Miller to the scene of the robbery and role as a lookout is equally as consistent with a handgun sale as with an armed robbery. Roy and Ross later were arrested while talking with one another. The court concluded that there was no evidence that they met to divide the proceeds of the robbery.

         The trial court judge reluctantly issued an instruction informing the jury of the “natural and probable consequences rule. “He reasoned that these facts it would stretch the “outer boundaries of the natural and probable consequences doctrine.” Selling a handgun constitutes a misdemeanor. The appellate court noted that applying the natural and probable consequences doctrine converted Roy’s participation in the sale of a handgun into the felony of armed robbery, punishable by life imprisonment.

         The natural and probable consequences doctrine, in the view of the appellate court, presumes an outcome within a “reasonably predictable range.” It is not sufficient to establish that the accomplice knew or should have known that the principal might conceivably commit the offense. The court rejected the argument that the armed robbery of the buyer was the “natural and probable consequence of an illegal transaction.” Individuals involved in illegal transactions often are armed and will respond to a robbery with armed force or will retaliate.

         In summary, the appellate court held that it is not sufficient that Roy should have known that it was “conceivable that Ross might rob Miller.” The evidence must support the claim that a robbery will follow the sale of an illegal handgun in the “ordinary course of events” and is a “natural and probable consequence” of the sale of a handgun. The fear of retaliation provides a “powerful disincentive.” 

         Sapp and Hicks broke into the apartment owned by L.B., in search of money and drugs belonging to Damien Bell. They separated Bell and L.B. from the rest of the family.

         Both Sapp and Hicks forced L.B. to engage in sexual intercourse. Sapp raped L.B. in the living room in an effort to intimidate Bell to revealing the location of the drugs and money. He then directed L.B. to go to the bathroom to “wash really good.” “After she bathed, and was in the process of drying herself, Hicks came into the bathroom and had intercourse with her.” Hicks claimed that he was “the man with the gun” and “in control of the situation” and that it was unforeseeable that Hicks would rape L.B. See State v. Sapp, 661 S.E.2d 304 (N.C.app. 2008).
 

State v. Sapp, 661 S.E.2d 304 (N.C.App. 2008)

STEELMAN

Issue

         Were the three rapes a natural and foreseeable consequences of the robbery?

Facts

         In the early morning hours of 18 August 2002, two men entered a residence in Charlotte in search of money and drugs belonging to Damien Bell (hereinafter "Bell"). The apartment belonged to Bell's girlfriend, L.B., whose 48-year-old mother and 12-year-old brother were staying with the couple and L.B.'s three young children (ages 6, 3, and 5 months). The intruders, Shelton L. Sapp (defendant) and Tracy Hicks (hereinafter "Hicks"), armed with a shotgun and a knife respectively, entered through a bedroom window, where they found L.B.'s mother and 12-year-old brother asleep. They forced these two persons through the hall into the second bedroom, where Bell, L.B., and the younger children slept.
     The intruders used duct tape to bind Bell and demanded cash and illegal drugs that they suspected were located in the residence. As the intruders searched for the cash and drugs, they forcibly separated Bell and L.B. from the rest of the family. L.B.'s mother, her 12-year-old brother, and the three young children remained in the bedroom throughout the incidents hereinafter described, while the intruders verbally and physically terrorized Bell and L.B.
      Both intruders forced L.B. to engage in sexual intercourse: first, defendant in the living room, and later, Hicks in the apartment's lone bathroom. Defendant testified that he had sex with L.B. in order to induce Bell to reveal the location of the money and drugs. Hicks did not testify. Defendant took L.B. into the living room, where he twice penetrated her vaginally: first on the couch then again on the floor, while Bell and Hicks watched. Defendant then sent L.B. to the bathroom with instructions to "wash really good." After she bathed, and was in the process of drying herself, Hicks came into the bathroom and had intercourse with her.
      Eventually, Bell told the men where to find the money and drugs. Defendant retrieved the money and drugs from their hiding place in a bedroom closet, then made a phone call. Before leaving, defendant killed Bell with a single shot to the head.
      On 13 January 2003, defendant was indicted for murder, first degree burglary, first degree rape (3 counts), first degree kidnapping (2 counts), and second degree kidnapping (5 counts). Defendant was tried capitally on the murder charge. The offenses were consolidated for trial before a jury at the 26 June 2006 criminal term of Mecklenburg County Superior Court. ….Defendant … testified and admitted to raping L.B. and shooting Bell. Defendant testified that he only raped L.B. once and did not plan any crime other than the robbery. …                       
      On 21 July 2006, the jury returned a verdict of guilty on all charges. On 28 July 2006, the jury recommended life imprisonment rather than death on the murder charge. The trial court accordingly sentenced defendant to life imprisonment for the murder charge, and consecutive active sentences totaling a minimum of 1,369 months and a maximum of 1,764 months imprisonment for the other offenses. Defendant appeals.
 

Reasoning
 Defendant testified that his motive in "having sex" with the victim was to apply pressure to Bell to reveal where the money and drugs were hidden. The … defendant contends that the court erred in denying his motion to dismiss the rape charge resulting from the acts of Hicks in the bathroom because the evidence did not support a rape conviction on an acting in concert theory. We disagree. 
     [I]f two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose; that is, the common plan to rob, or as a natural or probable consequence thereof. "A natural consequence is thus one which is within the normal range of outcomes that may be expected to occur if nothing unusual has intervened."  
      Defendant argues that… the bathroom rape was not a natural or probable consequence of the robbery. He contends that, as the man with the gun, he was "in charge of the situation" and it was unforeseeable that Hicks "would defy him by raping [L.B.]." He further contends that once that he told L.B. to go wash herself that the actions of Hicks were no longer a natural or probable consequence of the robbery and that he cannot be convicted under an acting in concert theory.
     In State Bellamy 617S.E.2d 81 (2005) two men planned a robbery of a restaurant where one of the men was employed. Bellamy entered the office area of the restaurant shortly after closing. He confronted the night manager with a gun as she prepared the night deposit. After securing the money, Bellamy instructed the manager to disrobe. He demanded that she spread her labia, then used the barrel of the gun to further separate her labia. The assault followed the robbery. There was no evidence of any plan for a sexual assault, nor was there evidence that the sexual assault was related in any way to the robbery. The State argued that, as a party to the robbery, Bellamy's co-defendant was "liable … for Bellamy's sexual assault on C.B." The issue before this Court was whether a sexual assault is a natural or probable consequence of a robbery with a dangerous weapon of a fast food restaurant. The court held that this "bizarre sexual offense" was not a natural and probable consequence of the robbery.  
      Citing to the case of People v. Nguyen, 21 Cal. App. 4th 518, 532-33, 26 Cal.Rptr.2d 323, 332 (Cal. App. 3 Dist. 1993), this Court analyzed the foreseeability of a sexual assault occurring in the context of a commercial setting, as opposed to a residential setting. We held that it was less likely that a sexual assault in the course of a robbery of a business would be a natural and probable consequence than in the context of a residential robbery.                      
     We decline to adopt a per se rule that any sexual assault committed during the course of a robbery is a natural or probable consequence of a planned crime. Rather, this determination must be made on a case by case basis, upon the specific facts and circumstances presented.
      Viewed in the light most favorable to the State, the evidence at trial showed that Hicks and defendant invaded the victims' residence with the intent to commit robbery with a dangerous weapon. Defendant's rapes of L.B. in front of Bell were for the admitted purpose of coercing Bell to give up his money and drugs, and, as such, they were part of the robbery. Once defendant had engaged in this conduct in front of Hicks it was clearly foreseeable that Hicks would become aroused and want to have sex with L.B. Having set in motion the rape of L.B. as an integral part of the robbery, defendant cannot now complain that Hicks' rape of L.B. was not a natural and probable consequence of the home invasion and robbery.
     Unlike in Bellamy, where the sexual assault took place after the robbery was completed, the rape by Hicks was conducted during the course of the robbery. As noted in Nguyen, "[d]uring hostage-type robberies in isolated locations, sexual abuse of victims is all too common. . . . rapes in the course of a residential robbery occur with depressing frequency."                   

Holding                     

Taken in the light most favorable to the State, the evidence in this case supports the trial court's submission of the bathroom rape by Hicks to the jury under an acting in concert theory. We hold that, on these facts, Hicks' rape of L.B. was a natural and probable consequence of the intended robbery of Bell and the court did not err in submitting this rape charge to the jury.
 

Questions for Discussion
1. Outline the facts in Sapp.

2. Why does Sapp argue that he should not be held liable for Hicks’ rape of L.B. Do you agree with the court’s holding that Sapp is liable for Hicks’ rape of L.B.? 

3. How does the court distinguish the facts in Bellamy from the facts in Sapp?  

4. Do you agree that the defendant cannot ”complain that Hicks' rape of L.B. was not a natural and probable consequence of the home invasion and robbery”?

         Fifteen-year-old Juan H., his brother Felix Merendon, and other members of their family lived in a Salinas, California, trailer park and were associated with the Sure# DB# o gang. Sylvester

         Magdelano and Luis Ramirez other park residents were affiliated with the Norte# DB# o gang. Juan H. made gang signs towards Magdelano. Magdelano told Juan H. the signs were “unwelcome” and punched him in the face. Two weeks later unknown persons fired two shots at the trailer of Juan H.’s family. Ninety minutes later Juan H. and Merendon spotted Magdelano and Ramirez and ran to a hiding place to retrieve a weapon. “Merendon reappeared from between two trailers and approached Magdelano and Ramirez. Juan H. followed his brother and stood behind him.” Merendon confronted Magdelano and Ramirez and asked "were [you] the ones that shot up his pad." Ramirez replied that he did not know what Merendon was talking about. Merendon pulled a shotgun from his pants, and shot Ramirez. Ramirez died from his wounds. Magdelano fell to the ground and heard a second shot although was not hit. It is estimated that the shooting took two seconds. Juan H. reportedly did not say anything, make any gestures, or otherwise encourage Merendon. Following the shooting Juan H. and Merendon fled together toward their trailer. Merendon ran to his car and drove away. Juan H. ran home to his family's trailer. Immediately following the shooting Merendon described the shooting to a friend and did not mention the involvement of Juan H. The police later intercepted Juan H. trying to leave the trailer park with his family and when questioned by the police Juan H. gave the false alibi that he was in the trailer during the shooting. The police were unable to locate Merendon and charged Juan H. with first-degree murder and with attempted murder. Was Juan H. an accomplice to the murder of Magdelano? See Juan H. v. Allen III, 408 F.3d 1262 (9th Cir.).      

uan H. v. Allen III 408 F.3d 1262 (9th Cir.)

Gould, J.

Issue

         Was Juan H. an accomplice to a gang-related shooting?  This case arises from a gang-related shooting death that occurred in Salinas, California, on March 24, 1999.

Facts

         Some background facts before that fateful day assist our understanding. Fifteen-year-old Juan H., his brother Felix Merendon, and other members of their family lived in the same Salinas trailer park as Luis Ramirez and Sylvester Magdelano. Juan H. and his family associated with the Sure# DB# o gang, and Ramirez, Magdelano and other park residents associated with the Norte# DB# o gang. Magdelano testified that during the months before the shooting, Juan H. made gang gestures and tried to "stare [him] down." In response, on March 10, 1999, Magdelano told Juan H. that gang signs were unwelcome, punched him in the face and knocked him to the ground. Later, Magdelano, Ramirez, and two others spoke to Merendon and Juan H.'s father about avoiding problems.
   On March 24, 1999, Juan H. and his family were at home when, at approximately 9:00 p.m., an unknown person or persons fired at least two shots at their trailer. The Salinas police responded to the incident, but made no arrest. About one-and-a-half hours later, Magdelano and Ramirez were walking through the trailer park and saw Juan H., Merendon, and their family standing outside. Juan H. and Merendon ran out of Magdelano's sight into the trailer park. Merendon reappeared from between two trailers and approached Magdelano and Ramirez. Juan H. followed his brother and stood behind him. Merendon asked Magdelano and Ramirez if they "were the ones that shot up his pad." Ramirez said that he did not know what Merendon was talking about. Merendon then pulled a shotgun from his side or the front of his pants, and shot Ramirez. Ramirez died from his wounds. Magdelano fell to the ground and heard a second shot but was not hit. During the shooting, Juan H. did not say anything, make any gestures, or otherwise encourage Merendon. Merendon ran to his car and drove away in flight. Juan H. ran home to his family's trailer. The shooting incident lasted only about two seconds, but took the life of Ramirez… and ultimately resulted in the conviction and incarceration of Juan H.                        
   Ricardo Rubio testified that Merendon came to his house alone on the night of the shooting with a 36-inch long shotgun, and that Merendon said that he had shot one person and fired at another. Merendon described the incident using the first-person singular and did not mention that Juan H. was with him. In addition, Billy M., a thirteen-year-old neighbor of Juan H. and Merendon, testified that he ran outside of his trailer shortly after Ramirez was shot and saw Ramirez lying on the ground. According to Billy M.'s testimony, Juan H. was outside with his family, pointed his fingers in the fashion of a gun and said to Billy M., "You better watch it." Although Billy M. testified that he told this to his vice-principal, John Gutierrez, Gutierrez testified that Billy M. never mentioned this incident while discussing the shooting.             
   Police arrived shortly after the shooting of Ramirez, and saw a hostile crowd surrounding Juan H. and his family as they attempted to back out of their driveway in their minivan. The police intervened, detaining Juan H. and his family at their trailer. Detective Gunter interviewed Juan H. that evening, and the minor told Gunter that he was in his trailer with his family when the shooting occurred.     
    The police failed to apprehend Merendon, and instead charged Juan H. with first-degree murder and attempted first degree murder under a theory of aiding and abetting. More specifically, the charges against Juan H. alleged that he did "willfully, unlawfully and with malice aforethought murder, LUIS ALEJANDRO RAMIREZ" in violation of California Penal Code section 187, and did "willfully, unlawfully and with malice aforethought attempt to murder, SYLVESTER MAGDALENO [sic]" in violation of California Penal Code sections 664 and 187.

Reasoning

         Juan H. was found culpable of the first-degree murder of Luis Ramirez and the attempted first-degree murder of Sylvester Magdelano, in violation of California Penal Code sections 664 and 187, under a theory of aiding and abetting. Both parties agree that under California law "a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."               
   An aider and abettor must share in the principal's criminal purpose or intent. ("[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission."). The prosecution must establish intent with respect to the specific offense the defendant is alleged to have aided and abetted; intent may not be established based upon "the . . . generalized belief that the defendant intended to assist and/or encourage unspecified `nefarious conduct.'"  
    Comparing these elements to the evidence in this case, viewed in the light most favorable to the prosecution, and all reasonable inferences that may be drawn from this evidence, we conclude that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." To survive a due process challenge here, the record of conviction must reflect sufficient evidence to allow any reasonable factfinder to conclude that Juan H.: 1) knew that Merendon planned to commit, with malice aforethought, the willful, deliberate, and premeditated murders of Ramirez and Magdelano, 2) specifically intended to encourage or facilitate Merendon's unlawful conduct; and 3) affirmatively acted in a manner so as to aid, promote, encourage or instigate the murders.          
   In affirming the conviction of Juan H., the California Court of Appeal discussed evidence of motive, conduct, flight and false alibi. With respect to motive, the California Court of Appeal noted that Juan H. had made gang gestures towards Magdelano months before the shooting and that Magdelano had punched Juan H. on one prior occasion. The court further determined that "Felix and the minor suspected Magdelano and Luis of shooting into their trailer." Turning to the offense conduct, the California Court of Appeal interpreted the record to reflect that:

         [T]he minor and Felix were together outside the trailer, and, upon seeing Magdelano and Luis, they both ran to a hiding place, where Felix retrieved a 36-inch shotgun. As Magdelano and Luis approached, the minor and Felix emerged together from hiding and confronted them. The minor stood somewhat behind Felix, in a position to see and provide back-up support. Felix did the talking and accused Magdelano and Luis of shooting at their trailer. Immediately after Luis responded, Felix shot him. Magdelano ran but fell and then heard a second shot.

         Finally, the California Court of Appeal determined that Juan H. manifested consciousness of guilt because "[h]e and Felix fled together toward their trailer, and a short time later police intercepted the minor trying to leave the area with his family" and "when questioned by the police, the minor gave a false alibi: He was in the trailer and not present during the shooting." The California Court of Appeal concluded that, "the evidence of motive and consciousness of guilt is insufficient standing alone to prove the minor's culpability. However, when this evidence is considered together with his conduct and evidence of flight, we find ample basis to support a finding of culpability beyond a reasonable doubt."

           The California Court of Appeal decision affirming the conviction of Juan H. was an unreasonable application of the Fourteenth Amendment requirement that the prosecution present evidence sufficient to prove every element of a crime beyond a reasonable doubt. The record contains manifestly insufficient evidence to support the necessary conclusions that Juan H. knew that Merendon planned to commit the first-degree murders of Ramirez and Magdelano, and that Juan H. acted in a way intended to encourage or facilitate these killings. Viewed in a light most favorable to the prosecution, the circumstantial evidence in this case does not permit any reasonable factfinder to sustain the delinquency petition of Juan H. on the charges of aiding and abetting first-degree murder and attempted first-degree murder, as those crimes are defined by California law.

          As an initial matter, the trial record does not support a conclusion that Juan H. left the murder scene in common "flight" with Merendon. The undisputed evidence shows that Merendon ran to his car and drove to the home of Rubio, while Juan H. ran home to his family's trailer and was located there when the police arrived. No reasonable trier of fact could find evidence of criminal culpability in the decision of a teenager to run home from the scene of a shooting, regardless of whether the home was in the same general direction as the car of a fleeing suspect. Likewise, any rational factfinder would find little or no evidence of guilt in the fact that Juan H. attempted, along with the rest of his family, to leave his home as it was being surrounded by an angry mob of neighbors.

         With respect to the evidence of the false alibi, the determination of the California Court of Appeal that the untrue statements Juan H. made to the police reflected consciousness of guilt is bare conjecture. Juan H. might have made a false statement to law enforcement for any number of reasons, especially given that any statements he made as a witness would likely be used to prosecute his older brother, a member of his immediate family. Although we must draw all reasonable inferences in favor of the prosecution, a "reasonable" inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence.

         With respect to motive, the record contains very little evidence that would allow a reasonable fact finder to infer that "the minor suspected Magdelano and Luis of shooting into their trailer." Although there was ample evidence that Merendon held this opinion, the prosecution was required to prove its case with respect to Juan H., and the determination that Juan H. believed that Magdelano and Ramirez had shot at his house was, again, unsupported speculation. The primary evidence of motive was that Juan H. made gang gestures at Magdelano during the months before the shootings and that Magdelano had once punched Juan H. in the head and knocked him to the ground. Although these events provide evidence that there may have been interpersonal tensions between Magdelano and Juan H., they do not create a sufficiently strong inference of motive to allow a reasonable trier of fact to conclude beyond a reasonable doubt that Juan H. had reason to aid and abet first-degree murder.

         Finally, with respect to the alleged offense conduct, the record reflects no direct evidence that Juan H. had any idea that Merendon planned to assault or murder Magdelano and Ramirez. Further, the circumstantial evidence presented does no more than establish that a rational trier of fact could conclude that Juan H. knew his brother was armed and ready to confront Magdelano and Ramirez if the family and home of Juan H. were again threatened. That Juan H. stood behind his older brother after the family home had been attacked, even if he knew his brother was armed, does not permit the rational inference that he knew his brother would, without provocation, assault or murder the victims.

         It is not enough for the prosecution to demonstrate that Juan H. knew that some criminal activity was afoot on the night of March 24, 1999 or that Merendon planned to confront Ramirez and Magdelano while holding a firearm. Rather, the element of knowledge must be proven with respect to first-degree murder and attempted first-degree murder, the specific crimes Juan H. was alleged to have aided and abetted. Even if we were to assume the element of knowledge, the record does not reflect any evidence that Juan H. intended, through his actions, to assist Merendon in committing first-degree murder. Juan H. did not do or say anything before, during or after the shootings from which a reasonable factfinder could infer an intent or purpose to aid and abet in the murder of Ramirez and the attempted murder of Magdelano. Nor could any factfinder reasonably conclude that, by standing, unarmed, behind his brother, Juan H. provided "backup," in the sense of adding deadly force or protecting his brother in a deadly exchange.

         Speculation and conjecture cannot take the place of reasonable inferences and evidence—whether direct or circumstantial— that Juan H.—through both guilty mind and guilty act—acted in consort with Merendon. In this case, after resolving all conflicting factual inferences in favor of the prosecution, it is only speculation that supports a conclusion that Juan H. knew that Merendon planned to commit the first-degree murders of Ramirez and Magdelano, and that Juan H. took some action intended to encourage or facilitate Merendon in completing the killings. Such a lack of evidence violates the Fourteenth Amendment guarantee that an accused must go free unless and until the prosecution presents evidence that proves guilt beyond a reasonable doubt. 

         Johnny Patrick Thorpe stabbed an officer who attempted to arrest him for the theft of chemicals used in the manufacture of the illegal drug crystal methamphetamine. Thorpe managed to elude an intense manhunt and broke into a home and called his wife. He described the situation and asked his wife to call his friend Herbert Joe White and to ask White to meet him at a designated spot on the highway. As White approached the overpass where he was to meet Thorpe, he observed a number of law enforcement officers. One of the officers was acquainted with both Thorpe and White and was aware that the two were friends. White immediately increased his speed and drove past the overpass and returned home. Are Herbert Joe White and Tracy Lynn Thorpe criminally liable as accessories after the fact? See White v. State, 851 So.2d 400 (Miss.App. 2003).

         White v. State, 851 So.2d 400 (Miss.App, 2003). The Mississippi appellate court ruled that in order to be convicted as an accessory after the fact that there must be an intent to assist the felon and an overt act. An intent to assist the felon is not sufficient. There also must be “some indication” that the defendant’s act “actually aided or assisted” the felon “in some way.” In other words, the defendant have “have actually ‘aided or assisted’ the felon, as opposed to simply having attempted, but failed to do so.” As a result, Joseph White was acquitted of acting as an accessory after the fact. Some courts would not require that the defendant’s act “actually aided or assisted” the misdemeanor or felon. 

         "[The victim] James Caffrey lived in with his girlfriend Samantha Bright and one other roommate. James's mother, Emilia Caffrey, lived in the first floor apartment. James Caffrey and Bright entered five visitors, including Tamarius Maner, in their living room. Maner purchased a small amount of marijuana from James Caffrey and paid him some money, which Caffrey put in the bedroom. Caffrey kept the marijuana in the bedroom. Caffrey remarked that he had saved $500 for a child that he was expecting with Bright.

         "At about that time, Maner and the defendant lived next door to each other in Bridgeport and had done drug business together. Maner contacted the defendant by cell phone during the evening of Saturday, October 26. Shortly after midnight on Sunday, October 27, Maner and the defendant drove to …. James Caffrey's apartment. They were carrying loaded handguns.”

         At 1 a.m., they rang Caffey’s doorbell. Caffey answered and Maner shot Caffrey in the face from a distance of one to three feet with a .45 caliber handgun. Caffrey died from the gunshot wound to the head. "Maner and the defendant walked past Caffrey and into a bedroom. There the defendant put a gun to Bright's head and asked, ‘Where is everything?' Bright understood the question to inquire about money and drugs. Bright referred them to the top dresser drawer. Maner opened it and threw its contents on the bedroom floor.” The heard the screams of Emilia Caffrey, who discovered her son’s body in the hallway. “The defendant told Bright to keep her head down and face toward the wall. Maner and the defendant then ran into the kitchen, which Emilia Caffrey had also entered in order to call 911. Maner, who was standing at the stove, fired one shot at [Emilia] Caffrey and missed. … Maner and the defendant then ran out of the kitchen, pushing [Emilia] Caffrey to the floor as they left. They returned to their car and arrived back in Bridgeport around 2 a.m.” Would you hold Bennett be held liable as an accessory to murder? See State v. Bennett, 59 A.3d 221 (Conn. 2013).

State v. Bennett, 59 A.3d 221 (Conn. 2013)

HARPER, J.

         The defendant, Calvin Bennett, was charged with aiding and abetting murder, felony murder, home invasion in violation, and burglary in the first degree. The defendant elected a trial to a three judge court (panel). The panel . . . rendered a unanimous verdict of guilty on all of the charges except aiding and abetting murder, on which a majority of the panel found the defendant guilty, and thereafter rendered judgment in accordance with the verdict and imposed a total effective sentence of sixty years imprisonment. 

         In its memorandum of decision, the panel unanimously found the following facts, none of which the defendant challenges on appeal. "[The victim] James Caffrey lived in the second floor apartment of 323 Hill Street in Waterbury with his girlfriend Samantha Bright and one other roommate. James' mother, Emilia Caffrey, lived in the first floor apartment. In the late afternoon of Saturday, October 26, 2008, James Caffrey and Bright had five visitors, including Tamarius Maner, in their living room. Maner had a clear view of the bedroom from where he was seated in the living room. Maner purchased a small amount of marijuana from James Caffrey and paid him some money, which Caffrey put in the bedroom. Caffrey kept the marijuana in the bedroom. Caffrey remarked that he had saved $500 for a child that he was expecting with Bright.

         "At about that time, Maner and the defendant lived next door to each other in Bridgeport and had done drug business together. Maner contacted the defendant by cell phone during the evening of Saturday, October 26. Shortly after midnight on Sunday, October 27, Maner and the defendant drove from Bridgeport to Waterbury to go to James Caffrey's apartment. They were carrying loaded handguns.

         Just after 1 a.m., the doorbell to the second floor apartment at 323 Hill Street rang and Caffrey answered the door. A conversation of a few seconds with . . . Caffrey ensued. Maner then shot Caffrey in the face from a distance of one to three feet with a .45 caliber handgun. Caffrey fell in the hallway in a pool of blood and died from the gunshot wound to the head.

         "Maner and the defendant walked past Caffrey and into a bedroom. There the defendant put a gun to Bright's head and asked: `Where is everything?' Bright understood the question to inquire about money and drugs. Bright referred them to the top dresser drawer. Maner opened it and threw its contents on the bedroom floor.

         At about that time, they heard the screams of Emilia Caffrey, who had heard the shot and discovered her son lying in the second floor hallway. The defendant told Bright to keep her head down and face toward the wall. Maner and the defendant then ran into the kitchen, which Emilia Caffrey had also entered in order to call 911. Maner, who was standing at the stove, fired one shot at [Emilia] Caffrey and missed. The defendant was standing at the window.

         "Maner and the defendant then ran out of the kitchen, pushing [Emilia] Caffrey to the floor as they left. They returned to their car and arrived back in Bridgeport around 2 a.m.

         Police interviews of some of the Waterbury visitors to James Caffrey's apartment on the afternoon of October 26 led to the identity of Maner, who was also known in Bridgeport as `T' or `Trigger.' Further police investigation, including analysis of Maner's cell phone calls, brought police to an apartment in Bridgeport where they found the defendant. The defendant voluntarily returned to Waterbury with the police and told them that he had not left Bridgeport on the night in question. When confronted with the fact that his cell phone records showed him in Waterbury during the time of the crimes, the defendant put his head down for a minute and then indicated that he had nothing more to say. A search, pursuant to a warrant, of his apartment in Bridgeport revealed a suitcase containing the defendant's clothes, a loaded .45 caliber pistol, and a sock containing sixty-one rounds of ammunition."                 
    Finally, "[t]o be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it." . . . "In order to be convicted under our murder statute, the defendant must possess the specific intent to cause the death of the victim . . . To act intentionally, the defendant must have had the conscious objective to cause the death of the victim . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available . . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." "[T]he defendant's state of mind at the time of the shooting may be proven by his conduct before, during and after the shooting. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant's mental state."             
    The record reveals the following facts and reasonable inferences therefrom, adduced solely from the state's case-in-chief. Maner had met James Caffrey for the first time on October 26, 2008, under nonconfrontational circumstances; there is nothing in the record to suggest that the defendant had ever met Caffrey. Caffrey's possession of cash and drugs prompted Maner's decision to return to the apartment. Although there was no evidence regarding the substance of the telephone conversations between Maner and Bennett before arriving at Caffrey's apartment, the conversations in connection with the fact that Maner and the defendant each carried loaded guns to the scene evidenced a concerted purpose and preparation to do more than merely brandish a weapon if necessary.

         When the defendant and Maner arrived at the apartment and summoned Caffrey to the door, a conversation of approximately five seconds took place before Maner fired the single fatal shot. Although Bright heard voices during this brief exchange, we do not know who spoke, what was said, the tone of the exchange, or whether some words or actions by Caffrey provoked Maner to shoot. After Maner fired the shot, the defendant did not render aid to, or summon aid for, Caffrey. Nor did the defendant react to Maner's action by audibly expressing shock or abandoning the enterprise. Rather, he proceeded without delay into the bedroom, held his gun to Bright's head and demanded to know, in effect, where Caffrey kept the money and drugs. It was only at the point that Caffrey's mother came across her son's prostrate body and began to scream that the defendant removed the gun from Bright's head and fled the scene with Maner. In sum, while the evidence reveals much about the defendant's actions after Maner fired the fatal shot, the evidence reveals little about the defendant's actions at the most critical points in time—prior to arriving at the apartment and during the brief period of time between his arrival at Caffrey's apartment and the shooting.

         Our review of Connecticut appellate cases in which accessorial liability for murder properly was found underscores the deficiency of proof in the present case. In every other accessorial liability case, the defendant had engaged in some act to prepare for, aid, encourage, facilitate or consummate the murder; it was from such acts that intent reasonably was inferred. In some cases, the defendant participated in the killing by inflicting, or attempting to inflict, harm on the victim while the principal inflicted the fatal injury, or the evidence was unclear as to whether the defendant actually inflicted the fatal injury. … In cases lacking such proof, the defendant otherwise actively participated in the murder through acts beneficial to the principal such as identifying the victim, taking the principal to the victim, distracting the victim, acting as a lookout to prevent interruption to the murder or facilitating the principal's escape. Oftentimes, evidence of a motive to kill had been established. No such evidence was proffered in the present case. Although it is reasonable to infer from the defendant's entry into Bright's bedroom with a loaded gun immediately following the shooting, simultaneously with Maner, that the defendant was in close proximity when Maner shot Caffrey and that he was in possession of a loaded gun at that time, it would be sheer speculation to conclude that the defendant threatened Caffrey with the gun or engaged in any act preceding the shooting that aided, encouraged or facilitated the shooting. "One who is present when a crime is committed but neither assists in its commission nor shares in the criminal intent of its perpetrator cannot be convicted as an accessory. Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it."     
   As to the defendant's conduct following the shooting, we are mindful that this court previously has stated that "[a] jury reasonably can infer an intent to kill from [a] defendant's failure to attempt to aid [the victim] or to show concern for [his] welfare following the shooting." We have stated this principle, however, in the context of cases in which the defendant inflicted the fatal injury but claimed no intent to kill; or in cases in which such evidence was used to impeach a defendant's claim that he did not share the principal's intent because of a good relationship with the victim. We are unaware of any case, in this or other jurisdictions, however, in which intent to kill has been inferred solely or even principally from the defendant's failure to render aid to the victim.

         The sum of the defendant's conduct after Maner shot James Caffrey—both acts and omissions—did not provide a sufficient evidentiary basis to infer his intent to kill. Rather, the fact that the killing did not deter or delay the defendant from carrying on with the planned burglary leads to the reasonable inferences that the defendant was indifferent to Caffrey's death or even that Caffrey's death was a foreseeable consequence of the burglary. Indifference, however, is not intent. Moreover, as we previously have explained, although a foreseeable risk of death to a victim in the course of a crime is a basis on which felony murder and Pinkerton liability may be established, foreseeability is not commensurate with the conscious objective to cause death required for accessorial liability. Indeed, it is precisely because murder is a foreseeable consequence of burglary that burglary is one crime for which felony murder may be imposed. To find intent to kill under the present circumstances would obliterate a critical distinction between these other theories of vicarious liability and accessorial liability. Moreover, even if we can infer from the defendant's reaction that he was not surprised by Maner's conduct, "[m]ere knowledge that a crime is going to be committed is not sufficient to establish liability as an accessory if the defendant does not encourage or intentionally aid in the commission of the crime."

         The state contends, however, that the present case is akin to State v. Robertson, 254 Conn. at 739, 760 A.2d 82, in which this court affirmed a judgment of conviction for murder as an accessory. In particular, the state contends that the requisite intent was found in Robertson from the defendant's act of shooting his gun into the air, whereas the defendant's conduct in the present case of putting a loaded gun to Bright's head is more probative of intent to kill. We disagree. The proof in Robertson extended well beyond the one act on which the state relies. In that case, not only did the defendant have a motive to kill the victim, but the sole reason for the encounter was to kill the victim, and the defendant facilitated the murder by identifying the victim and coordinating the attack with the principal. Moreover, the firing of the gun by the defendant in Robertson while the principal shot at the victim conveyed both a threat to the victim, as well as an endorsement of the principal's actions in shooting the victim.

         In the present case, there was no motive to kill independent of the burglary; indeed, the state conceded as much in its closing argument to the trial panel. There also is no evidence to support an inference that the defendant aided or encouraged Maner with respect to the fatal act or that the defendant threatened Caffrey directly in any manner. Although the defendant threatened Bright by placing a gun to her head, which conveyed an implied threat to kill her if she did not cooperate, there is no evidence from which we can infer that he intended to follow through on that threat. The defendant never discharged his gun, even when encountering another witness to the crime, Emilia Caffrey, while fleeing the scene. Moreover, the state has provided us with no authority, and our research has revealed none, supporting the proposition that we can infer the defendant's intent to kill Caffrey from such an implied threat to Bright. In our view, the evidence in the present case would have made a strong case for murder under a theory of Pinkerton liability, but falls short of the requisite proof for accessorial liability. Therefore, because the state did not advance a theory of liability under the Pinkerton doctrine, and the state did not prove beyond a reasonable doubt that the defendant intended to cause James Caffrey's death, the defendant's conviction for murder as an accessory cannot stand.