State ex rel. Woods v. Cohen, No. CV-91-0307-PR

• Court: Supreme Court of Arizona
• Writing for the Court: MARTONE; MOELLER, V.C.J., CORCORAN and ZLAKET, JJ., and LLOYD FERNANDEZ
• Citation: 173 Ariz. 497,844 P.2d 1147
• Docket Number: No. CV-91-0307-PR
• Decision Date: 15 December 1992
• Parties: STATE of Arizona, ex rel. Grant WOODS, Attorney General, Petitioner, v. Edwin C. COHEN, Real Party in Interest, and . Albrecht, judge, Respondent. Supreme Court of Arizona, In Banc

Page 1147

844 P.2d 1147 173 Ariz. 497 STATE of Arizona, ex rel. Grant WOODS, Attorney General, Petitioner,
v.
Edwin C. COHEN, Real Party in Interest,
and The Superior Court of the State of Arizona, in and for the County of Maricopa, the Honorable Rebecca A. Albrecht, judge, Respondent. No. CV-91-0307-PR. Supreme Court of Arizona, In Banc. Dec. 15, 1992.
Reconsideration Denied Feb. 2, 1993.

Grant Woods, Atty. Gen. by Billie A. Rosen, Asst. Atty. Gen., Phoenix, for State of Ariz.

Bruce Feder, Phoenix, for Edwin C. Cohen, real party in interest.

OPINION

MARTONE, Justice.

We are asked to decide whether a conspirator, who is responsible for the crime of conspiracy, can also be responsible for

Page 1148

[173 Ariz. 498] the separate criminal acts of co-conspirators when the conspirator is not an accomplice or principal to those crimes. We hold that conspiratorial responsibility does not extend that far.

We are also asked to decide whether the anti-marital fact privilege of A.R.S. § 13-4062(1) is limited to testimony adverse to a criminal defendant. We hold that it is not.

Edwin C. Cohen was indicted by a grand jury for conspiracy to defraud the Arizona Health Care Cost Containment System and for various offenses committed by his co-conspirators in carrying out that conspiracy. The trial court granted Cohen's motion to remand all aspects of the indictment to the grand jury for a new determination of probable cause. The court of appeals, in a special action brought by the state, reversed and remanded the case for further proceedings based upon the existing grand jury indictment. State ex rel. Woods v. Superior Court, 169 Ariz. 552, 555, 821 P.2d 213, 216 (App.1991). We granted Cohen's petition for review.

I. CO-CONSPIRATOR LIABILITY

Count 1 of the indictment charged Cohen with conspiracy. Counts 18 through 29 of the indictment charged Cohen with various substantive offenses, including theft and fraud, committed by his co-conspirators. Cohen moved to dismiss counts 18 through 29 for lack of evidence implicating him. The trial court granted the motion and remanded those counts to the grand jury for a new determination of probable cause. The reasons for the trial court's order are set forth in the margin. ¹ The state argued that the trial court's ruling was based on a rejection of the Pinkerton doctrine of vicarious liability under which Cohen could be held liable for the substantive crimes of his co-conspirators even though he did not participate in those crimes. 169 Ariz. at 553. The grand jury was in fact instructed on this doctrine and the state concedes that it presented no evidence of Cohen's direct participation in the offenses which were the subject of counts 18 through 29.

The liability of an accused for acts committed by co-conspirators is often called "Pinkerton" liability, after the case in which the United States Supreme Court recognized the doctrine as part of federal criminal law and upheld it against a double jeopardy challenge. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The Court held that a conspirator may be found responsible for crimes committed by a co-conspirator, as long as the acts making up the crimes are reasonably foreseeable and are carried out in furtherance of the conspiracy, even though the conspirator did not participate in their commission. Id. at 645-48, 66 S.Ct. at 1183-84.

A. Is Pinkerton part of our common law?

The state argues that Pinkerton has already been adopted in Arizona. If that were the case, a healthy respect for stare decisis would end our inquiry. This court, however, has not addressed the issue. The court of appeals applied the Pinkerton doctrine, without comment, in State v. Garcia, 117 Ariz. 67, 69, 570 P.2d 1080, 1082 (App.1977), a case decided before October 1, 1978, the effective date of the current criminal code. That court also mentioned the doctrine, in dicta, in State v. Verive, 128 Ariz. 570, 580-81, 627 P.2d 721, 731-32 (App.1981) and, in a later case, upheld the propriety of instructing the jury

Page 1149

[173 Ariz. 499] on the doctrine in the face of a claim that it constituted a comment on the evidence. State v. Agnew, 132 Ariz. 567, 577, 647 P.2d 1165, 1175 (App.1982). ²

The state also points out that the doctrine appears in the Recommended Arizona Jury Instructions--Criminal § 10.035 (1989). This instruction, however, relies upon Garcia, and thus we are right back where we started.

Before the enactment of the current criminal code, there was no comprehensive statutory treatment of vicarious criminal liability in Arizona. Chapter 1 of Title 13 of the 1956 Arizona Revised Statutes, entitled "General Provisions," did, however, contain several sections on the liability of principals. One of these sections defined "principals" to include "all persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission." A.R.S. § 13-139 (1956), repealed by Laws 1977, Ch. 142, § 2. This was the only section which, even indirectly, dealt with vicarious liability by making aiders and abettors liable as principals, and nothing about it seemed to preclude other theories of liability. This is similar to the federal scheme, both as it is currently written, and as it existed at the time Pinkerton was decided. See 18 U.S.C. § 550 (1940) (current version at 18 U.S.C. § 2(a) (1988) (stating that anyone who "aids, abets, counsels, commands, induces or procures" the commission of an offense against the United States "is punishable as a principal")).

The current Arizona criminal code, which became effective in 1978, is loosely based on the Model Penal Code. Chapter Three of Title 13, concerning "Parties to Offenses: Accountability," defines criminal accountability. A.R.S. § 13-302 states that "[a] person may be guilty of an offense committed by such person's own conduct or by the conduct of another for which such person is criminally accountable as provided in this chapter, or both." (Emphasis added.) Criminal accountability for the conduct of others is then provided for in A.R.S. § 13-303, which begins "[a] person is criminally accountable for the conduct of another if " and then lists various circumstances in which that is the case (see quote, infra ). (Emphasis added.) "If" in this context clearly means "if and only if." This scheme, in contrast to the provisions of the prior code and its federal analogue, exclusively defines when one may be held liable for acts committed by others and makes judicial adoption of the Pinkerton theory inappropriate unless it is otherwise within the statutory list. ³

B. Is Pinkerton part of the statutory scheme?

We turn next to the statutory scheme. The court of appeals held that the Pinkerton doctrine can be found in A.R.S. § 13-1003. That section, however, defines the elements and scope of the crime of conspiracy. But Cohen's indictment for the crime of conspiracy (count 1) is not at issue. We deal here with his indictment for the crimes alleged in counts 18 through 29 committed by his co-conspirators. As noted by the court of appeals, to come within § 13-1003(A), a conspirator need not agree to personally commit a criminal act but need only agree to the commission of the act by a co-conspirator. Likewise, the overt act that constitutes an element of the crime of conspiracy under § 13-1003(A) need not be personally committed by the conspirator being prosecuted. Nevertheless, the liability which stems from the planning of crimes under § 13-1003 is liability for conspiracy, not for crimes committed by co-conspirators. The fact that one can be criminally responsible for the crime of...