State v. Etzweiler , 125 N.H. 57 ( 1984 )

Batchelder, J.,

with whom Brock, J., concurs. The issues raised in these consolidated cases involve the applicability of New Hampshire’s motor vehicle laws and Criminal Code to a simple fact situation. The State and Mark A. Etzweiler, one of the defendants, have stipulated to the following facts. On July 30, 1982, the defendants, Mark Etzweiler and Ralph Bailey, arrived in Etzweiler’s automobile at the plant where both were employed. Bailey had been drinking alcoholic beverages and was, allegedly, intoxicated. Etzweiler, allegedly knowing that Bailey was intoxicated, loaned his car to Bailey and proceeded into the plant to begin work. Bailey drove Etzweiler’s car away. Approximately ten minutes later, Bailey, driving recklessly, collided with a car driven by Susan Beaulieu. As a result of the accident, two passengers in the Beaulieu car, Kathryn and Nathan Beaulieu, were killed.

On August 26, 1982, the grand jury handed down two indictments charging Etzweiler with negligent homicide, RSA 630:3, I, and two indictments charging Bailey with manslaughter, RSA 630:2, 1(b) (Supp. 1983). Subsequently, on April 6, 1983, the grand jury issued two additional indictments charging Etzweiler with negligent homicide as an accomplice. RSA 626:8; RSA 630:3,1.

Etzweiler filed motions to quash all indictments against him, and the Superior Court (Pappagianis, J.) transferred to this court the questions of law raised by the motions. The Superior Court {Pappagianis, J.) also denied Bailey’s motion to dismiss the indictments against him and then granted Bailey’s motion for an interlocutory appeal.

The cases were consolidated on appeal. We dismiss all indictments against Etzweiler and affirm the denial of Bailey’s motion to dismiss.

Etzweiler

The superior court transferred five questions of law. We need address only the first question: whether the legislature, in enacting RSA 630:3, I, and RSA 626:8, intended to impose criminal liability upon a person who lends his automobile to an intoxicated driver but does not accompany the driver, when the driver’s operation of the borrowed automobile causes death.

The First Indictments

The first indictments charge Etzweiler with negligent homicide, RSA 630:3,1:

“[He] negligently entrusted his motor vehicle to one, Ralph Bailey, knowing that Mr. Bailey was drunk and was going to operate said motor vehicle ... that Mr. Bailey while so operating said motor vehicle while drunk . . . did cross into the opposite lane and collide with a motor vehicle in which [decedents were passengers]... thereby causing decedents’] death[s].”

The requisites of the negligent homicide statute are met if a defendant negligently causes death. RSA 630:3, I. The State must establish that the defendant failed to become aware of a substantial and unjustifiable risk that his or her conduct may cause the death of another human being. RSA 626:2,11(d). “The risk must be of such a nature and degree that his [or her] failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.” Id.

In this case, however, death resulted not from the conduct of Etzweiler but from the conduct of Bailey, and the accountability of Etzweiler therefore must rest on the complicity of Etzweiler in Bailey’s conduct.

At common law, an individual, who did not actually engage in the felonious conduct, could be held criminally liable as a principal if he or she were present during the commission of the crime, aiding and abetting the perpetrator. State v. Larkin, 49 N.H. 39, 43 (1869); State v. M’Gregor, 41 N.H. 407, 414 (1860). Thus, the owner of an automobile who lent his or her car to an intoxicated individual, sat by that individual and permitted him to operate the vehicle, may be convicted as a principal to manslaughter if death results from the operation of the vehicle. See, e.g., Story v. United States, 16 F.2d 342 (D.C. Cir. 1926), cert. denied, 274 U.S. 739 (1927); Freeman v. State, 211 Tenn. 27, 362 S.W.2d 251 (1962).

At common law, Etzweiler could not have been guilty as a principal. He was not actually or constructively present during the commission of the offense, a necessary prerequisite. See State v. Lacoshus, 96 N.H. 76, 79-80, 70 A.2d 203, 206 (1950); State v. Larkin supra. Cf. United States v. Van Schaick, 134 F. 592, 604 (S.D.N.Y. 1904) (corporate officers, although not present when the deaths occurred, were held as principals to manslaughter because their duty and its breach were ongoing). If he aided and abetted Bailey, although not present at the commission of the crime, Etzweiler, at common law, may have been guilty as an accessory before the fact to involuntary manslaughter. See, e.g., Stacy & Rusher v. State, 228 Ark. 260, 306 S.W.2d 852 (1957). However, at common law, the crimes of principals and accessories before the fact were distinct and separate. State v. Demos, 81 N.H. 318, 320-21, 125 A. 426, 428 (1924).

In 1973, the legislature enacted the Criminal Code and created RSA 626:8, the accomplice liability statute. That statute abrogated the common-law distinction between principals and accessories and narrowly defined those situations in which an individual could be held criminally liable for the conduct of another. See State v. Jansen, 120 N.H. 616, 618-19, 419 A.2d 1108. 1110 (1980). Etzweiler’s conduct, in lending his automobile to Bailey, must be measured against the standards set forth in the statute.

Etzweiler’s conduct may fall within the statutory language defining negligent homicide. However, whether to impose criminal liability on Etzweiler involves an important policy decision of broad social consequences. The awesome deliberative task of making such a judgment should not, in the first instance, be thrust upon the juries in our trial courts but should be resolved through the legislative process to determine in what manner society seeks to deal with the criminal liability of those who permit unqualified operators to wreak havoc upon our public ways. This is a matter for legislative concern and is not a matter for judicial innovation. See. Ala. Code § 32-15-2 (1975); Mich. Comp. Laws Ann. § 257.625(3) (Supp. 1983); N.J. Stat. Ann. 39:4-50 (West Supp. 1983); see also People v. Marshall, 362 Mich. 170, 173-74, 106 N.W.2d 843, 844 (1961).

The Second, Indictments

The second indictments charge Etzweiler with the offense of negligent homicide as an accomplice. RSA 626:8; RSA 630:3, I.

RSA 626:8 delineates all situations in which an individual may be held criminally liable for the conduct of another. One situation is when an individual “is an accomplice of [another] in the commission of the offense.” RSA 626:8, 11(c). Accomplice liability under RSA 626:8, 11(c), is defined in two parts, RSA 626:8, III and IV. Section III sets forth the elements which must be present above, beyond, and regardless of the substantive offense. Section IV sets forth the elements of the substantive offense that must be present in order to charge the accomplice.

RSA 626:8, III, provides:

“A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he aids . . . such other person in planning or committing it. . . .”

This section sets forth the conduct element of accomplice liability, see State v. Vaillancourt, 122 N.H. 1153, 1154, 453 A.2d 1327, 1328 (1982), and the necessary accompanying mental state, see State v. Bussiere, 118 N.H. 659, 663, 392 A.2d 151, 154 (1978).

Under section III, the State has the burden of establishing that the accomplice acted with the purpose of promoting or facilitating the commission of the substantive offense. See id. This encompasses the requirement that the accomplice’s acts were designed to aid the primary actor in committing the offense, see State v. Burke, 122 N.H. 565, 570, 448 A.2d 962, 965 (1982), and that the accomplice had the purpose to “make the crime succeed,” State v. Goodwin, 118 N.H. 862, 866, 395 A.2d 1234, 1236 (1978) (quoting 1 F. Wharton, Criminal Law § 114, at 60 (Supp. 1978)). See State v. White, 622 S.W.2d 939, 945 (Mo. 1981), cert. denied, 456 U.S. 963 (1982) (aider must aid with the conscious object of causing that offense); Commonwealth v. Cunningham, 447 A.2d 615, 617 (Pa. 1982) (to aid, one must possess a shared intent to commit the offense). In other words, the accomplice must have the “purpose to advance the criminal end.” Model Penal Code § 5.03, comment at 107 (Tent. Draft No. 10, 1960) (RSA 626:8 is based upon the Model Penal Code, State v. Luv Pharmacy, Inc., 118 N.H. 398, 408, 388 A.2d 190, 196 (1978)).

Section IV sets forth the elements of the substantive offense that the State has the burden of establishing against the accomplice. “When causing a particular result is an element of an offense,” the accomplice must act “with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” RSA 626:8, IV; see State v. Acton, 115 N.H. 254, 257, 339 A.2d 4, 6 (1975) (accomplice acted with intent required to violate the substantive offense). See generally Robinson & Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan. L. Rev. 681, 739-41 (1983).

Our interpretation of the accomplice liability statute effectuates the policy that an accomplice’s liability ought not to extend beyond the criminal purposes that he or she shares. Because accomplice liability holds an individual criminally liable for actions done by another, it is important that the prosecution fall squarely within the statute.

Applying these statutory prerequisites, we turn to the indictments charging Etzweiler as an accomplice to negligent homicide.

“Mark Etzweiler acted as an accomplice in the conduct which caused the death[s] of Kathryn [and Nathan] Beau-lieu when, with a purpose to promote and facilitate the offense of driving under the influence of alcohol, he aided Ralph Bailey in the commission of that offense by lending Ralph Bailey his 1980 AMC automobile, knowing Ralph Bailey was under the influence of alcohol, and encouraging him to drive it on a public way in such condition, and Mark Etzweiler thereby acted negligently with respect to the death[s] of Kathryn [and Nathan] Beaulieu....”

The State has alleged that, with the purpose of promoting or facilitating the offense of driving under the influence of alcohol, Etzweiler aided Bailey in the commission of that offense. However, under our statute, the accomplice must aid the primary actor in the substantive offense with the purpose of facilitating the substantive offense — in this case, negligent homicide. Therefore, the indictments against Etzweiler must be quashed. See State v. Shute, 122 N.H. 498, 504, 446 A.2d 1162, 1166 (1982) (indictment must include all the elements constituting the offense).

Even if the indictments tracked the statutory language of RSA 626:8, III and IV, Etzweiler, as a matter of law, could not be an accomplice to negligent homicide. To satisfy the requirements of RSA 626:8, III, the State must establish that Etzweiler’s acts were designed to aid Bailey in committing negligent homicide. Yet under the negligent homicide statute, Bailey must be unaware of the risk of death that his conduct created. RSA 630:3,1, RSA 626:2,11(d). We cannot see how Etzweiler could intentionally aid Bailey in a crime that Bailey was unaware that he was committing. Thus, we hold, as a matter of law, that, in the present context of the Criminal Code, an individual may not be an accomplice to negligent homicide. We need not reach the question of whether the statute provides for accomplices to manslaughter or murder.

Therefore, we answer the first question posed by the superior court in the negative in regard to both RSA 630:3, I, and RSA 626:8.

Bailey

The superior court denied Bailey’s motion to dismiss the indictments charging him with manslaughter, RSA 630:2, 1(b) (Supp. 1983). This interlocutory appeal raises the question whether a statutory scheme encompassing two offenses which are allegedly defined by identical elements, but provide for different punishments, is unconstitutional on equal protection grounds. We hold that the two statutes, RSA 630:2, 1(b) (Supp. 1983), and RSA 265:79, are not duplicitous, and thus we need not reach this constitutional issue.

The two statutes co-exist as a result of legislative deliberations. A cursory examination of the conduct sought to be penalized may reveal a distinction so thin as to approximate transparency. However, an analytical approach to the distinction demonstrates that in the manslaughter statute the recklessness of the defendant is of a greater magnitude and heightened degree of culpability, because it punishes recklessness with regard to death, while the motor vehicle statute punishes recklessness with respect to vehicular operations where death is an unforeseen but nevertheless tragic result.

RSA 630:2, 1(b) (Supp. 1983), provides that a person is guilty of manslaughter when he or she “causes the death of another recklessly.” This offense proscribes an undesirable result and requires that a defendant have a mental state of recklessness with respect to the result of death. Thus, the State, to obtain a conviction, must prove that a defendant was aware that his or her conduct created a substantial and unjustifiable risk of death, but consciously disregarded that risk. See RSA 626:2, 11(c); REPORT OF COMMISSION to Recommend Codification of Criminal Laws, comments at 35 (1969).

RSA 265:79 (Supp. 1983) prohibits the conduct of reckless driving and provides for a scheme of punishments, ranging from a fine and license revocation to possible incarceration. If death results from reckless driving, the person convicted of reckless driving is guilty of a class B felony.

The mental state of recklessness in this offense applies to a defendant’s conduct and the State must show that a defendant was aware that his or her conduct created a substantial and unjustifiable risk of some forbidden harm, but was consciously indifferent to that risk. State v. Dodge, 103 N.H. 131, 133, 166 A.2d 467, 468 (1960); State v. Soucy, 97 N.H. 233, 234, 84 A.2d 838, 840 (1951) (vehicle must be operated to show a reckless disregard of the consequences); see RSA 626:2, 11(c). The forbidden harm may include injury to the safety, rights or property of human beings but need not include death.

The recklessness proscribed in RSA 265:79 (Supp. 1983) clearly refers only to the defendant’s conduct in vehicular operation, and not to the result of death. See RSA 626:2, I. The statute prohibits reckless driving, and conduct which constitutes reckless driving, see State v. Langelier, 95 N.H. 97, 58 A.2d 315 (1948), does so regardless of what harm actually results. See State v. Turgeon, 101 N.H. 300, 303, 141 A.2d 881, 883 (1958). The additional element of death must be proved only in order to classify the offense as a class B felony.

For example, an operator of a vehicle, whether intoxicated or sober, may operate his or her vehicle in a reckless manner on a lightly travelled highway under ideal driving conditions, swerve from the travel surface arid strike an object, resulting in the death of a passenger. On such facts, the operator presumably would be properly indicted under RSA 265:79 because his or her recklessness relates to vehicular operation. The same operator, however, under similar conditions, may proceed through a crosswalk heavily occupied by pedestrians without giving heed to their presence. If death results, the operator might appropriately be indicted under RSA 630:2, 1(b), because an argument could be made (ultimately to be resolved by the trier of facts) that such recklessness related to death or the potential for death.

Reading these offenses as distinct and separate effectuates the intent of the legislature to enact a statutory scheme providing for a range of different offenses which arise from vehicular homicide, including manslaughter, reckless driving, death resulting and negligent homicide. This intent is evidenced by the provision found in the reckless driving statute, RSA 265:79 (Supp. 1983) which states “[t]his section shall not be construed to limit or restrict prosecution for manslaughter.” See N.H.S. Jour. 1009-10 (1973). Such a construction of these statutes avoids serious constitutional questions which might otherwise be raised. See State v. Harlan, 116 N.H. 598, 603-04, 364 A.2d 1254, 1258 (1976); see also Appeal of Public Serv. Co. of N.H., 122 N.H. 919, 922, 451 A.2d 1321, 1323 (1982).

Bailey, if he were reckless as to the result of death, may be convicted of manslaughter. However, predicated on the same indictment, Bailey could be found guilty of the lesser-included offense of reckless driving, death resulting. A lesser-included offense is one which “must necessarily be included in the greater .. . offense.” State v. O’Brien, 114 N.H. 233, 235-36, 317 A.2d 783, 784 (1974). For a manslaughter conviction, the State must show that the defendant recklessly caused death, and this encompasses the requirement that the defendant acted recklessly. Thus, if the State establishes that Bailey committed manslaughter, it has necessarily established that Bailey committed reckless driving, death resulting. See id. If the evidence so warrants, id., Bailey would be entitled to a lesser-included offense instruction.

No. 83-037 remanded; No. 83-088 affirmed and remanded.

Brock, J., concurred; Souter, J., concurred specially; Douglas, J., dissented in part; King, C.J., with whom Douglas, J., joined in part, dissented.