State v. Etzweiler

• Citation: 125 N.H. 57,480 A.2d 870
• Decision Date: 13 June 1984
• Docket Number: 83-088,Nos. 83-037,s. 83-037
• Parties: STATE of New Hampshire v. Mark A. ETZWEILER. STATE of New Hampshire v. Ralph BAILEY.
• Court: New Hampshire Supreme Court

Page 870

480 A.2d 870

125 N.H. 57

STATE of New Hampshire v. Mark A. ETZWEILER.

STATE of New Hampshire v. Ralph BAILEY.

Nos. 83-037, 83-088.

Supreme Court of New Hampshire.

June 13, 1984.

Gregory H. Smith, Atty. Gen. (Michael A. Pignatelli, Asst. Atty. Gen., on the briefs and orally), for the State.

Keefe & Keefe, Wilton (William Keefe, Wilton, on the brief and orally), for defendant Mark A. Etzweiler.

James E. Duggan, Appellate Defender (on the brief), and Joanne S. Green, Asst. Appellate Defender (Orally) Concord, for defendant Ralph Bailey.

BATCHELDER, Justice, with whom BROCK, Justice, 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, I(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, I.

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, I:

"[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 decedent[s'] 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, II(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, 47 S.Ct. 576, 71 L.Ed. 1318 (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 842, 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, II(c). Accomplice liability under RSA 626:8, II(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, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982) (aider must aid with the conscious object of causing that offense); Commonwealth v. Cunningham, 301 Pa.Super. 209, 447 A.2d 615, 617 (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 & Grall, 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...