8 Attempts and Complicity 8 Attempts and Complicity

8.1 Liability for Attempts 8.1 Liability for Attempts

State v. McElroy State v. McElroy

625 P.2d 904

STATE of Arizona, Appellee, v. Marvin Timothy McELROY, Appellant.

No. 5097.

Supreme Court of Arizona, In Banc.

March 9, 1981.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Waldo W. Israel, Yuma, for appellant.

CAMERON, Justice.

Defendant was found guilty by the court sitting without a jury of the crime of attempted possession of dangerous drugs in violation of A.R.S. §§ 32-1996,13-1001,13-701, 13-801. The crime was treated as a misdemeanor, and defendant was placed on probation. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We must answer only one question on appeal: May the defendant be charged with attempted possession of dangerous drugs when it was impossible for him to complete the crime of possession of dangerous drugs because the drugs were not, in fact, dangerous?

The facts necessary for a determination of this matter on appeal are as follows. At approximately 1:00 a. m. on 8 December 1978, the Yuma County Sheriff’s Office received a call to investigate the presence of two suspicious persons near a residence on Highway 95 in Yuma County, Arizona. The two persons told the officer who came to investigate that they were hitchhiking. The defendant asked a deputy sheriff for a ride into Yuma. The deputy agreed and, pursuant to standard procedure, patted the defendant down for weapons. During the *316search, the deputy found a plastic bag in defendant’s shirt. The deputy took the bag, looked at it, and found it contained white pills. The defendant stated that the pills were “speed” or amphetamines, and that he had purchased them earlier at a bar. Later the deputy found another plastic bag with more white pills in the back seat of the patrol vehicle after placing defendant in the back seat.

A field test showed positive for amphetamines, the defendant was advised of his Miranda rights, and defendant again stated that the pills were “speed.” Later analysis by a chemist indicated that the pills were not amphetamines or dangerous drugs of any kind proscribed by statute.

Trial was held before the court without a jury. After the State’s case, the defendant moved for a directed verdict which was denied. Defendant did not present any evidence at trial. The court found defendant guilty and defendant appealed.

The defendant was charged with “attempt” to possess dangerous drugs. Our statute reads:

“§ 13-1001. Attempt; classifications “A. A person commits attempt if, acting with the kind of culpability otherwise required for commission of an offense, such person:
“1. Intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be; * * * ”

The courts are not in agreement as to when impossibility may be used as a defense to the crime of attempt. A distinction that has been made is whether the impossibility alleged is a legal impossibility or a factual impossibility. See Annot., Conspiracy, Attempt — Crime Impossible, 37 A.L.R.3d 375 (1971). Where the act, if completed, would still not be a criminal act, then it is said to be legally impossible to commit and is a valid defense to the charge of attempt. For example, in Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898), the defendant was under 14 years of age and by law was conclusively presumed to be incapable of committing rape. The court held that because of his age it was legally impossible for him to be convicted of rape, and he could not “as a plain legal deduction” be convicted of attempted rape. 96 Va. at 311, 31 S.E. at 505. Where the crime is impossible to complete because of some physical or factual condition unknown to the defendant, the impossibility is factual rather than legal. The courts have held that factual impossibility is not a valid defense. See Annot., supra. For example, the California Supreme Court has held that a person attempting to possess heroin, when in fact the substance was talcum powder, was nevertheless guilty of attempted possession of heroin. The court stated:

“ ‘If there is an apparent ability to commit the crime in the way attempted, the attempt is indictable, although, unknown to the person making the attempt, the crime cannot be committed, because the means employed are in fact unsuitable, or because of extrinsic facts, such as the nonexistence of some essential object, or an obstruction by the intended victim or by a third person.’ 22 C.J.S. Criminal Law, § 77, p. 142.” People v. Siu, 126 Cal.App.2d 41, 44, 271 P.2d 575, 576-77 (1954).

Our Court of Appeals has stated in upholding a conviction for attempt to receive stolen property where the property was not in fact stolen:

“We therefore hold that legal impossibility is not a bar to prosecution for an attempt to receive stolen property. The rationale for this conclusion is that but for factors unknown to appellant, he committed acts which would have been sufficient to complete the substantive crime and exhibited the requisite intent, (footnote omitted)” State v. Vitale, 23 Ariz.App. 37, 44, 530 P.2d 394, 401 (1975).

Although there are attempt cases allowing the defense of legal impossibility, United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976); United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1973), the United States Court of Military Appeals upheld a conviction of attempted rape of a woman who was dead at the time of defendant’s acts, *317refusing to adopt “an antiquated and discredited rule involving such nebulous distinctions as a factual and legal impossibility.” United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962), quoted in Annot., supra, 37 A.L.R.3d at 402. We believe, however, that our statute, A.R.S. § 13-1001, by the phrase “intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be;” reflects the intent of the legislature that factual impossibility is not a defense to the crime of attempt.

There can be no doubt that the defendant could never have been convicted of possession of dangerous drugs. However, if the pills were what defendant thought them to be, he could have been convicted of possession of drugs. The defendant believed he had the ability to accomplish the crime of possession, and the fact that the pills were not dangerous drugs does not erase his attempt to possess. Mere intent alone does not amount to an “attempt,” People v. Siu, supra, but intent plus conduct toward the commission of a crime may be an attempt. In the instant case, defendant’s conduct indicated not only intent, but an attempt to complete the crime of possession. We find no error. State v. Vitale, supra.

Affirmed.

STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and GORDON, JJ., concur.

People v. Acosta People v. Acosta

The People of the State of New York, Appellant, v Andre Acosta, Respondent.

Argued January 5,1993;

decided February 16, 1993

*667POINTS OF COUNSEL

Robert M. Morgenthau, District Attorney of New York County, New York City (Eleanor J. Ostrow and James M. McGuire of counsel), for appellant.

Defendant’s rejection of the particular cocaine delivered to him because he believed its peculiar packaging jeopardized his plan to resell it did not render insufficient the trial evidence supporting his conviction of attempted possession of a controlled substance in the first degree. People v Mahboubian, 74 NY2d 174; People v Sullivan, 173 NY 122; People v Moran, 123 NY 254; People v Rizzo, 246 NY 334; People v Malizia, 62 NY2d 755, 469 US 932; People v Bleakley, 69 NY2d 490; People v Dekle, 56 NY2d 835; People v Sobieskoda, 235 NY 411; People v Warren, 66 NY2d 831; People v Duprey, 98 AD2d 110.)

Mahler & Harris, P. C., Kew Gardens (Stephen R. Mahler of counsel), for respondent.

I. Measured by Court of Appeals case law criteria, the People’s proof at trial did not justify defendant’s conviction for attempted criminal possession of a controlled substance in the first degree. People v Howard, 74 NY2d 943; People v Lawrence, 74 NY2d 732; People v Butler, 58 NY2d 1056; People v Cona, 49 NY2d 26; People v Mahboubian, 74 NY2d 174; People v Warren, 66 NY2d 831.) II. The court’s prolonged closure of the courtroom violated defendant’s Sixth Amendment right to a public trial and mandates reversal of his judgment of conviction. People v Clemons, 78 NY2d 48; People v Kan, 78 NY2d 54; Waller v Georgia, 467 US 39; People v Hinton, 31 NY2d 71.) III. Given the People’s opening statement and the trial testimony, the failure of the court to properly charge the multiple conspiracy concept espoused in People v Leisner (73 NY2d 140, 148-152) requires a trial de nova on the conspiracy count of the indictment. IV. Three erroneous evidentiary rulings seriously prejudiced defendant and deprived him of a fair trial. People v Roman, 149 AD2d 305; People v Bolden, 82 AD2d 757.) V. A new trial should be ordered due to the improper admission of critical identification testimony that should have been suppressed due to lack of CPL 710.30 notice and the refusal of the court to follow a suggested procedure which might have insured its reliability. People v Rodriguez, 79 NY2d 445; People v New-ball, 76 NY2d 587; United States v Archibald, 734 F2d 938; People v Evans, 147 Misc 2d 811.)

*668OPINION OF THE COURT

Kaye, J.

A person who, with intent to possess cocaine, orders from a supplier, admits a courier into his or her home, examines the drugs and ultimately rejects them because of perceived defects in quality, has attempted to possess cocaine within the meaning of the Penal Law. As the evidence was legally sufficient to establish this sequence of events, we reinstate defendant’s conviction of attempted criminal possession of a controlled substance in the first degree.

I.

By jury verdict, defendant was convicted of conspiracy and attempted possession of cocaine. The latter charge — the only one at issue on this appeal — centers on the events of March 21, 1988.

Evidence at trial revealed that, commencing in November 1986, officers of the Manhattan North Narcotics Division began investigating the activities of defendant, his brother Miguel and others. Their investigation techniques included the use of an undercover officer to infiltrate the organization, stakeouts and court-authorized wiretaps. In July 1987 the undercover met with Miguel at a Manhattan apartment and purchased cocaine. At that time, Miguel introduced defendant to the officer, telling her that they "work together.”

A wiretap on defendant’s telephone at his Bronx apartment revealed that for several days prior to March 21, 1988, he was negotiating with Luis Rojas to purchase kilogram quantities of cocaine.1 On March 21, at 11:37 a.m., Rojas called defendant and asked, "are you ready?” Defendant replied "come by here” and Rojas responded, "I’m going over.” At 11:42, defendant called "Frank,” an associate, and told him that he "spoke to the man” who would be "coming over here * * *. Right now.”

About a half hour later, around 12:15 p.m., officers staking out defendant’s six-floor apartment building saw a man pull up in a car, remove a black and white plastic bag from the *669trunk, and enter the building. The bag’s handles were stretched, indicating that the contents were heavy. At 12:30, the man emerged from the building, carrying the same plastic bag which still appeared to be heavy. He placed the bag back in the trunk and drove off.

Minutes later, at 12:37 p.m., defendant called Frank, stating that he "saw the man” but "those tickets * * * were no good; they weren’t good for the game man.” Frank wondered whether "they got more expensive, the seats” and defendant explained that they were the "same price and all” but they were "not the same seats * * * some seats real bad, very bad, very bad.” Defendant elaborated: "two pass tickets together on the outside stuck together, like a thing, like a ticket falsified. Then I told him to take it away, no, I don’t want any problems and anything you see.” Frank asked if defendant was told when the tickets would arrive, and defendant responded "No because who came was someone, somebody else, the guy, the messenger.” Defendant acknowledged that he "want[s] to participate in the game but if you can’t see it, you’re going to come out upset.”

At 12:50 p.m., Rojas called defendant and said something inaudible about "my friend.” Defendant responded, "Oh yes, but he left because (inaudible) it doesn’t fit me. * * * You told me it was the same thing, same ticket.” Rojas rejoined, "No. We’ll see each other at six.”

Finally, at 1:26 p.m., defendant telephoned Hector Vargas, who wanted to know "what happened?” Defendant said, "Nothing. I saw something there, what you wanted, but I returned it because it was a shit there.” Hector wanted to know, "like how?” but defendant simply responded, "No, no, a weird shit there.” Vargas suggested that he might be able to obtain something "white and good.”

The following day, defendant again called Vargas to discuss "the thing you told me about, you know what I’m referring to”. Defendant recommended that Vargas "go talk to him, talk to him personally and check it out.” Defendant thought that "it would be better if you took the tickets, at least one or whatever.”

At trial, in motions before and after the verdict, defendant argued that the foregoing evidence was insufficient to establish that he attempted to possess cocaine on March 21. The trial court rejected those arguments and sentenced defendant, *670upon the jury’s guilty verdict, to a prison term of 25 years to life, the maximum permitted by law.2

On appeal, a sharply divided Appellate Division reversed and vacated the attempted possession conviction, the majority concluding that "[e]yen were we to accept [the] attenuated inference that the visitor actually reached defendant’s apartment and offered his contraband to him, the remaining evidence shows defendant’s flat rejection of that offer, and thus total abandonment of the criminal enterprise with respect to this particular quantity of cocaine.” (172 AD2d 103, 105-106.) One of the dissenting Justices granted the People leave to appeal, and we now reverse.

II.

A person knowingly and unlawfully possessing a substance weighing at least four ounces and containing a narcotic drug is guilty of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]). Under the Penal Law, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.” (Penal Law § 110.00.) While the statutory formulation of attempt would seem to cover a broad range of conduct — anything "tend[ing] to effect” a crime — case law requires a closer nexus between defendant’s acts and the completed crime.

In People v Rizzo (246 NY 334, 337), we observed that in demarcating punishable attempts from mere preparation to commit a crime, a "line has been drawn between those acts which are remote and those which are proximate and near to the consummation.” In Rizzo, this Court drew that line at acts "very near to the accomplishment of the intended crime.” (Id., at 337.) Though apparently more stringent than the Model Penal Code "substantial step” test (Model Penal Code § 5.01 [1] [c]) — a test adopted by some Federal courts (see, e.g., United States v Jackson, 560 F2d 112 [2d Cir], cert denied 434 US 941) —in this State we have adhered to Rizzo’s "very near” or "dangerously near” requirement, despite the later enactment of Penal Law § 110.00 (see, People v Mahboubian, 74 NY2d 174, 191; People v Warren, 66 NY2d 831, 833; People v Di Stefano, 38 NY2d 640, 652).3

*671A person who orders illegal narcotics from a supplier, admits a courier into his or her home and examines the quality of the goods has unquestionably passed beyond mere preparation and come "very near” to possessing those drugs. Indeed, the only remaining step between the attempt and the completed crime is the person’s acceptance of the proffered merchandise, an act entirely within his or her control (see, People v Mahboubian, 74 NY2d, at 192, supra).

Our decision in People v Warren (66 NY2d 831) is thus readily distinguishable, as Justice Asch, dissenting at the Appellate Division, recognized. In that case, an informant and an undercover officer posing as a cocaine seller met defendants in a hotel room and reached an agreement for the sale of about half a pound. The actual exchange, however, was to occur hours later, in another part of town, after repackaging and testing. Moreover, when defendants were arrested at that meeting, the sellers had insufficient cocaine on hand and defendants had insufficient funds. We concluded that since "several contingencies stood between the agreement in the hotel room and the contemplated purchase,” defendants did not come "very near” to accomplishment of the intended crime (66 NY2d, at 833). The same cannot be said here.

Significantly, neither the Appellate Division nor the dissent in this Court disputes the proposition that a person who arranges for the delivery of drugs and actually examines them has come sufficiently close to the completed crime to qualify as an attempt. Rather, the Appellate Division relies on two other grounds for reversal: (i) the evidence was insufficient to establish that defendant in fact met with a drug courier and examined his wares; and (ii) in any event, defendant’s ultimate rejection of the drugs constituted an abandonment of the criminal enterprise, vitiating the attempt. (The dissent in this Court is limited to the first ground.) Neither ground is persuasive.

*672Sufficiency of the Evidence

A jury, of course, concluded from the evidence presented that defendant attempted to possess cocaine on March 21, 1988. In examining the record for legal sufficiency, "the evidence must be viewed in a light most favorable to the People * * * to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Steinberg, 79 NY2d 673, 681-682). This deferential standard is employed because the courts’ role on legal sufficiency review is simply to determine whether enough evidence has been presented so that the resulting verdict was lawful.

The Appellate Division is also empowered to review the record to determine whether the verdict is against the weight of the evidence (CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495). In so doing, the Appellate Division may draw inferences contrary to those implicitly drawn by the jury, and conclude that while legally valid, the verdict should nevertheless be set aside as contrary to the weight of the evidence (see, CPL 470.20 [5]; People v Bleakley, 69 NY2d, at 495, supra). In this case, the Appellate Division did not use its weight-of-the-evidence review powers, but vacated defendant’s conviction for legal insufficiency (172 AD2d, at 106, supra). Accordingly, this Court may review the Appellate Division’s determination (see, CPL 470.15 [4] [b]; 450.90 [2] [a]; see also, People v Acosta, 79 NY2d 971 [denying defendant’s motion to dismiss appeal]). When we reverse in this procedural posture, however, the case is remitted to enable the Appellate Division to weigh the evidence (CPL 470.40 [2] [b]).

Applying these governing standards, we conclude that the evidence was legally sufficient to support the jury’s finding that defendant met with a drug courier in his home on March 21. About a half-hour after defendant’s supplier, Rojas, told defendant that he would be coming over, the police saw a man enter the apartment building with a weighted-down plastic bag and emerge 15 minutes later with the same heavy bag. Contemporaneously with the unidentified man’s departure, defendant reported to an associate that he met with a messenger but that he rejected the offer because the "seats” were "very bad” and the "tickets” looked "falsified.” When Rojas immediately called defendant asking about his "friend,” defendant explained that "he left” and complained that Rojas *673misrepresented that the "same ticket” would be brought. And shortly thereafter, defendant called Vargas and told him that he "saw something there, what you wanted, but I returned it because it was a shit there.”

On the evidence presented, a rational jury could have found beyond a reasonable doubt that defendant, with the intent to possess more than four ounces of a controlled substance,4 met with Rojas’ courier and examined cocaine, but rejected it because he was dissatisfied with the quality.

The dissent’s contrary conclusion is reachable only by arbitrarily fragmenting the evidence. The dissent contends that the stakeout officers’ observations of the man carrying the bag amount to "no material evidence at all” because the man was not stopped by the police or seen approaching defendant’s apartment (dissenting opn, at 677). Then, having erased this evidence from the case, the dissent claims that the "sole basis” for defendant’s guilt was a wiretapped conversation in which he told an individual that he had just rejected tickets (dissenting opn, at 677).

The law, however, did not oblige the jury to take such an artificial view of the evidence. Rather, the jury function was to evaluate the trial evidence as a whole, to consider how the individualized bits of evidence fit together, including inferences from the evidence that rational individuals were entitled to draw. As background, the jury knew from defendant’s many earlier conversations about "tickets” and his meeting with the undercover that he was involved with drugs. Further, the jury knew that in the days immediately preceding March 21 defendant was negotiating with Rojas to buy kilos of cocaine and that on March 21 Rojas said that he was coming over. The unidentified man’s visit to the apartment building with the parcel — coinciding to the minute with defendant’s conversations — was fully consistent with defendant’s several later admissions that he had met with a courier but rejected his merchandise. While the dissent would ignore the totality of this evidence, the jury most assuredly was not required to do so.

Rejection as Abandonment

We similarly disagree with the Appellate Division’s suggestion that defendant’s "flat rejection” of the drugs vitiated the *674attempt. Penal Law § 40.10 (3) provides an affirmative defense to an attempt charge "under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose”. To qualify for this defense, "the abandonment must be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time” (People v Taylor, 80 NY2d 1, 13-14).

An abandonment theory is inapposite here. First, abandonment is an affirmative defense (Penal Law § 40.10 [3]; People v Taylor, 80 NY2d, at 15, supra), meaning that defendant has the burden of establishing it by a preponderance of the evidence (Penal Law § 25.00 [2]; People v Butts, 72 NY2d 746, 749, n 1). At trial, however, defendant never sought to present a renunciation defense. Second, and even more fundamentally, the evidence revealed that even after rejecting the March 21 offer, defendant continued making efforts to obtain cocaine. Thus, while it may be true that there was an abandonment "with respect to [that] particular quantity of cocaine” (172 AD2d, at 106, supra), this is immaterial for purposes of the statutory renunciation defense. Rather, there must be an abandonment of over-all criminal enterprise (see, People v Taylor, 80 NY2d, at 14, supra), which on this record plainly was not the case.

III.

On this appeal, defendant raises several other arguments which were summarily rejected by the Appellate Division. Inasmuch as the relief he seeks — a new trial — goes beyond mere affirmance of the Appellate Division order and thus constitutes a request for affirmative relief, defendant was required to obtain leave to appeal (see, People v Carpenito, 80 NY2d 65, 68). Defendant in fact sought leave to appeal from a Judge of this Court, but his application was denied (79 NY2d 971). Thus, we are precluded from reviewing defendant’s alternative contentions seeking a new trial.

We note, however, that although the Appellate Division rejected defendant’s "other” claims, by reversing the attempted possession conviction and vacating the resultant sentence that court necessarily did not pass on defendant’s argument that his sentence was harsh and excessive. Therefore, on remittal, should the Appellate Division uphold the attempted possession conviction upon exercise of its factual review power, that court should consider defendant’s excessive sentence claim.

*675Accordingly, the order of the Appellate Division should be reversed, the conviction for attempted criminal possession of a controlled substance in the first degree reinstated, and the case remitted to that court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

Smith, J.

(dissenting). To uphold defendant’s conviction of an attempt, it must be shown beyond a reasonable doubt that his acts came "dangerously close” to committing the substantive crime. That someone got out of a car carrying a bag and entered the apartment building adds nothing to the proof of the attempted crime. There was no proof of who this man was, what was in the bag, where the man went inside the building or who owned the car. Any connection of this proof with defendant would necessarily be based on pure speculation. The critical question, then, is whether defendant’s wiretapped phone calls, standing alone, or even in conjunction with the evidence of a man and his bag, could constitute sufficient evidence for a finding of guilt. Without more, these phone conversations, and other evidence submitted, were insufficient to show that defendant came "dangerously close” to possessing drugs. I, therefore, dissent.

The police obtained a court order authorizing a wiretap of defendant’s telephone. The wiretap, in place in 1987 and 1988, revealed that defendant was anticipating a delivery of cocaine on March 21, 1988. Defendant was arrested on June 22, 1988 and charged with conspiracy in the second degree based on his intent to commit the crimes of criminal sale of a controlled substance in the first and second degrees and criminal possession of a controlled substance in the first and second degrees. Defendant was also charged with criminal possession of a controlled substance in the first degree.

A police officer assigned to stakeout defendant’s apartment building testified at trial that shortly after noon on March 21, 1988, he observed a small white four-door vehicle drive up to the front of the six-story apartment building in which defendant lived. The officer also testified that he saw a male Hispanic exit the car, remove a black and white plastic bag with long, completely stretched handles from the trunk, and enter the courtyard leading to the building. No one followed the person into the building to ascertain where he went. The officer testified further that the same man left the building 15 minutes later with the same bag with similarly stretched handles. According to the officer, the man walked to the rear *676of his vehicle, opened the trunk, placed the bag back inside, got into the vehicle, drove a few feet, made a U-turn, and drove back past the police vehicle in which he was seated. The officer testified that he never stopped the driver of the white vehicle or ascertained what was in the bag. This incident, along with overheard conversations of defendant that he had rejected "tickets” (allegedly cocaine), presented the sole basis for convicting defendant of attempted possession of a controlled substance in the first degree.

Defendant was convicted, after a jury trial, of attempted criminal possession of a controlled substance in the first degree and conspiracy to possess a controlled substance in the second degree. The Appellate Division modified by dismissing the attempted possession conviction, the majority holding that, with respect to the attempted possession charge, the evidence is insufficient, as a matter of law, to establish that defendant’s conduct came "very near” or "dangerously near” to completion of the crime under settled New York precedents (172 AD2d 103, 106).* Two Justices dissented (see, id.).

Penal Law § 110.00 states that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, [the person] engages in conduct which tends to effect the commission of such crime.” This Court has held that Penal Law § 110.00 requires a showing that defendant "committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained” (People v Warren, 66 NY2d 831, 832). A person is guilty of criminal possession of a controlled substance in the first degree when the person knowingly and unlawfully possesses four or more ounces of a narcotic drug (see, Penal Law § 220.21 [1]).

In Warren (supra), this Court affirmed the dismissal of indictments charging two defendants with attempted criminal possession of a controlled substance where several contingencies stood between an earlier agreement to purchase and the contemplated purchase. The Grand Jury testimony showed that the defendants agreed to purchase cocaine from a police *677informant, but the transaction was not consummated because the informant did not have enough cocaine, the defendants did not have enough money, and the cocaine was not properly packaged. The informant agreed to meet the defendants later that evening to test the cocaine and effect the transaction. Before the informant departed, and while defendants were examining one-ounce bags of cocaine, police officers who were secretly watching the transaction entered the room and arrested them. This Court concluded that "the defendants did not come very near to the accomplishment of the intended crime” (id., at 833).

Here, too, the evidence adduced at trial does not establish that defendant came very near to the accomplishment of the crime of possession of a controlled substance in the first degree. According to the wiretap information, defendant had been anticipating a delivery of "tickets” from his suppliers for resale to a customer. The police observed an Hispanic male enter and leave the courtyard of the apartment building in which defendant lived carrying a heavy-laden shopping bag. The People assert that the unidentified male brought a supply of cocaine to defendant’s apartment and defendant rejected the supply. However, the stakeout police officer did not stop and question the Hispanic male or ascertain what was in the shopping bag, nor did he observe the male approach or enter defendant’s apartment. Thus, the testimony that an unidentified man entered and exited defendant’s apartment building amounts to no material evidence at all.

The sole basis for defendant’s guilt was the wiretap conversations in which defendant told another individual that he had just rejected a delivery of "tickets” as unacceptable because it was "no good” and "stuck together.” The evidence adduced simply does not establish beyond a reasonable doubt the attempted possession of cocaine by the defendant.

Acting Chief Judge Simons and Judges Titone and Bellacosa concur with Judge Kaye; Judge Smith dissents and votes to affirm in a separate opinion in which Judge Hancock, Jr., concurs.

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

Notes on attempt liability Notes on attempt liability

The common law of impossible attempts: “Incomplete attempts” describe cases in which the defendant starts his efforts to commit a crime and does some of the conduct necessary to commit it, but then for some reason stops before carrying out all the conduct necessary to complete the offense. “Complete attempts” describe cases in which an actor carries out all the conduct necessary for accomplishing the crime, and yet the crime is not accomplished for some reason. Think, for example, of a defendant who shoots a firearm at another intending to kill them, and yet does not, in fact, hit (or at least kill) the intended victim. In this scenario, it was possible for the actor to complete the crime, but for some reason (he’s a bad shot, the gun misfired, etc.) he did not. In other “complete attempt” scenarios, however, completing the crime is not possible for some reason even if the defendant does everything right (he has perfect aim, the gun functions properly, etc.) Perhaps, for example, the person he shot and intended to kill was not, in fact a person but a mannequin or wax figure.

For complete-attempt scenarios in which the crime was for reason impossible to accomplish, many common law courts drew a distinction between “legal impossibility” and factual impossibility.” The standard rule was that "legal impossibility is a defense.” Put differently, one cannot be convicted for attempting a crime that is "legally impossible" to complete. "Factual impossibility," on the other hand, was not a defense. A crime was said to be “factually impossible” if it was incapable of being completed solely because of some fact unknown to the defendant. See, e.g., State v. Moretti, 52 N.J. 182, 190 (1968) (“when the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstance unknown to him.”).

Eventually, however, many courts came to recognize that the distinction made little sense. The California Supreme Court’s observation in People v. Camodeca, 52 Cal. 2d 142, 147, 338 P.2d 903, 906 (1959), came to be shared by many courts: “what is a ‘legal impossibility’ as distinguished from a ‘physical or factual impossibility’ has over a long period of time perplexed our courts and has resulted in many irreconcilable decisions.”

Consider the following “impossible attempt” cases and see if you discern which are properly characterized as “legally impossible” and which as “factually impossible.”

In State v. Guffey, 262 S.W.2d 152 (Mo. App. 1953), the court overturned the conviction of a defendant who had been convicted of attempting to shoot wildlife out of season because the thing he shot was not a live animal but a stuffed decoy deer, set up as a part of sting operation by state conversation agents. (Such sting operations with “Robo-Deer” continue to be a strategy of state natural resources agencies charged with reducing illegal hunting. Examples can be found on YouTube, e.g., here.)

In State v. Taylor, 133 S.W.2d 336 (Mo. 1939), the Missouri Supreme Court reversed the defendant’s conviction for attempting to corrupt a person summoned to jury service because the person he attempted to bribe had by that time been excused from jury service and thus was no longer “summoned juror.”

In People v. Teal, 196 N.Y. 372 (1909), New York’s high court overturned a conviction for attempted subornation of perjury—i.e., an attempt to convince a witness to lie under oath about some topic that is relevant (or “material”) to the trial in which they testify. The court concluded that the testimony that the defendant “attempted to suborn” was irrelevant to the case, and that one cannot commit subornation of perjury by soliciting false, but irrelevant, testimony. In that scenario, “the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified.” Id. at 377.

In State v. Mitchell, 170 Mo. 633 (1902), the court affirmed a conviction for attempted murder for a defendant who had shot into the room in which his intended victim usually slept; the bullet struck the pillow on which the intended victim usually slept—although on this particular night he happened to be sleeping in another room of the house.

In State v. Moretti, 52 N.J. 182 (1968), the court affirmed the conviction for attempting to perform an abortion, a criminal offense. The defendant had agreed to perform an abortion upon a female undercover police officer who was not, in fact, pregnant.

The Model Penal Code rejected the defense of “legal impossibility.” See MPC § 5.01(1) [Lexis link]. Several states have adopted this policy by statute. See, e.g., Colo. Rev. Stat. § 18-2-101(1) (“Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be, nor is it a defense that the crime attempted was actually perpetrated by the accused.”); 720 Ill. Cons. Stat. § 5/8-4(b) (“It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.”); Kans. Stat. § 21-5301(b) (“It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”); NY Penal Law § 110.10 (“If the conduct in which a person engages otherwise constitutes an attempt to commit a crime …, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.”). Others have done so by judicial decision.

Defining the criteria for attempt liability: Clear, comprehensive definitions of what constitutes sufficient conduct, in appropriate circumstances, for attempt liability has proven challenging for both courts and legislatures. In part this is because there can be several reasons that attempted crimes are not completed.

  • In some cases, actors complete all the conduct required for the offense but some circumstance is missing that prevents the crime from being completed—this is the kind of scenario that “impossibility” rules address.
  • In other cases, actors complete all the conduct required for the offense, and all the necessary circumstances are present, but actor nonetheless fails to achieve some result that is required for the particular offense; think again of the attempted murder who fires a gun at his victim but through poor aim misses him.
  • In still other cases, the actor starts the conduct of committing the crime but then stops short before completing it; think of a would-be bank robber who abandons his plan upon entering the bank and seeing armed guards present.

State statutes define criteria for attempt liability with these distinct scenarios in mind. Oklahoma Statute § 21-44, for example, speaks to the first two scenarios:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or,

(b) when causing a particular result in an element of the crime, does anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part.

Colorado law, by contrast, defines attempt liability only with the regard to the third “incomplete attempt” scenario:

(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

Colo. Rev. Stat. § 18-2-101. All three of these provisions are drawn nearly verbatim from Model Penal Code § 5.01(1)(a)-(c). Oddly, however, few if any state legislatures have adopted statutes based on the MPC that address all three scenarios. (Surely, one can liable for attempted crimes in all three scenarios in all states. But courts reach those results with only the common law as a basis for those judgments.)

The defense of abandonment/renunciation: In incomplete-attempt scenarios, one can readily imagine different reasons that actors abandon their criminal plans, some more worthy than others. One actor might abandon his effort when he realizes he is likely to get caught; another might have a genuine change of heart and opt to do the right thing before it’s too late. Many states have laws that account for these differences by providing an defense of “abandonment” or “renunciation” for attempters who quit for the right reasons. See, e.g., Colo. Rev. Stat. § 18-2-101(3) (“It is an affirmative defense to a charge under this section that the defendant abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting the complete and voluntary renunciation of his criminal intent.”); 18 Pa. Consol. Stat. § 901:

(c)  Renunciation.

(1)  In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

(2)  A renunciation is not "voluntary and complete" within the meaning of this subsection if it is motivated in whole or part by:

(i)  a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or

(ii)  a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.

This Pennsylvania statute is closely modeled on MPC § 5.01(4).

8.2 Accomplice liability 8.2 Accomplice liability

State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274 (1970) State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274 (1970)

HALE, Justice.

A jury found defendant Bruce Gladstone guilty of aiding and abetting one Robert Kent in the unlawful sale of marijuana. …

Gladstone’s guilt as an aider and abettor in this case rests solely on evidence of a conversation between him and one Douglas MacArthur Thompson concerning the possible purchase of marijuana from one Robert Kent. There is no other evidence to connect the accused with Kent who ultimately sold some marijuana to Thompson. …

[Thompson, Kent and Gladstone were students at University of Puget Sound. Tacoma Police recruited Thompson to buy marijuana from Gladstone. Thompson went to Gladstone’s home and asked to buy marijuana. Gladstone replied that he did not have enough to sell but suggested that Kent did have enough and would be willing to sell; he gave Thompson Kent’s address and drew a map to Kent’s residence. Thompson subsequently bought marijuana from Kent. There was no communication between Gladstone and Kent.]

If all reasonable inferences favorable to the state are accorded the evidence, it does not, in our opinion, establish the commission of the crime charged. That vital element—a nexus between the accused and the party whom he is charged with aiding and abetting in the commission of a crime—is missing. The record contains no evidence whatever that Gladstone had any communication by word, gesture or sign, before or after he drew the map, from which it could be inferred that he counseled, encouraged, hired, commanded, induced or procured Kent to sell marijuana to Douglas Thompson as charged, or took any steps to further the commission of the crime charged. He was not charged with aiding and abetting Thompson in the purchase of marijuana, but with Kent’s sale of it. …

[E]ven without prior agreement, arrangement or understanding, a bystander to a robbery could be guilty of aiding and abetting its commission if he came to the aid of a robber and knowingly assisted him in perpetrating the crime. But regardless of the modus operandi and with or without a conspiracy or agreement to commit the crime and whether present or away from the scene of it, there is no aiding and abetting unless one “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” Nye & Nissen v. United States, 336 U.S. 613, 619 (1949).

Gladstone’s culpability, if at all, must be brought within RCW 9.01.030, which makes a principal of one who aids and abets another in the commission of the crime. Although an aider and abettor need not be physically present at the commission of the crime to be held guilty as a principal, his conviction depends on proof that he did something in association or connection with the principal to accomplish the crime. Learned Hand, J., we think, hit the nail squarely when, in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), he wrote that, in order to aid and abet another to commit a crime, it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used—even the most colorless, ‘abet’—carry an implication of purposive attitude towards it.”

It would be a dangerous precedent indeed to hold that mere communications to the effect that another might or probably would commit a criminal offense amount to an aiding and abetting of the offense should it ultimately be committed.

There being no evidence whatever that the defendant ever communicated to Kent the idea that he would in any way aid him in the sale of any marijuana, or said anything to Kent to encourage or induce him or direct him to do so, or counseled Kent in the sale of marijuana, or did anything more than describe Kent to another person as an individual who might sell some marijuana, or would derive any benefit, consideration or reward from such a sale, there was no proof of an aiding and abetting, and the conviction should, therefore, be reversed as a matter of law. Remanded with directions to dismiss.

HAMILTON, Justice (dissenting). … I am satisfied that the jury was fully warranted in concluding that appellant, when he affirmatively recommended Kent as a source and purveyor of marijuana, entertained the requisite conscious design and intent that his action would instigate, induce, procure or encourage perpetration of Kent’s subsequent crime of selling marijuana to Thompson. …

State ex rel. Martin, Atty. Gen., v. Tally, 102 Ala. 25, 15 So. 722 (1894) State ex rel. Martin, Atty. Gen., v. Tally, 102 Ala. 25, 15 So. 722 (1894)

McClellan, J.
[In an impeachment proceeding against Judge Tally of Scottsboro, the court found that: one Ross had “seduced, or been criminally intimate with,” Tally’s sister-in-law, the sister of Tally’s wife and also of three brothers, whose family name was Skelton. The Skelton brothers followed Ross from Scottsville to nearby Stevenson. On his own initiative, Tally went to the Scottboro telegraph office, where he observed one of Ross’s relatives sending a telegram to Ross warning him of “four men on horseback with guns following. Look out.” Tally then sent his own telegram to the telegraph operator in Stevenson (a friend of Tally’s), telling the operator not to deliver the warning telegram. The operator followed Tally’s request and did not deliver the warning to Ross. The Skelton brothers found Ross and killed him. The court concluded that Tally was an accomplice to the homicide committed by the Skeltons.]
We are therefore clear to the conclusion that, before Judge Tally can be found guilty of aiding and abetting the Skeltons to kill Ross, it must appear that his vigil at Scottsboro to prevent Ross from being warned of his danger was by preconcert with them, or at least known to them, whereby they would naturally be incited, encouraged, and emboldened–“given confidence”–to the deed, or that he aided them to kill Ross, contributed to Ross’ death, in point of physical fact, by means of the telegram he sent to Huddleston [the telegraph operator]. 
The assistance given, however, need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely rendered it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life which but for it he would have had, he who furnishes such aid is guilty, though it cannot be known or shown that the dead man, in the absence thereof, would have availed himself of that chance; as, where one counsels murder, he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counsel; and as, where one being present by concert to aid if necessary is guilty as a principal in the second degree, though, had he been absent murder would have been committed, so, where he who facilitates murder even by so much as destroying a single chance of life the assailed might otherwise have had, he thereby supplements the efforts of the perpetrator, and he is guilty as principal in the second degree at common law, and is principal in the first degree under our statute, notwithstanding it may be found that in all human probability the chance would not have been availed of, and death would have resulted anyway.

State v. McVay, 47 R.I. 292 (1926) State v. McVay, 47 R.I. 292 (1926)

Barrows, J.

Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the steamer Mackinac, as principals, and against Kelley, as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler. …

The same question is raised upon each indictment. That question is:

May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?

… The charge against Kelley as accessory is that “before said felony and manslaughter was committed,” he did, at Pawtucket, “feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit.” …

Because the manslaughter charge is “without malice” and “involuntary,” Kelley contends that he cannot be indicted legally as an accessory before the fact. The argument is that manslaughter, being a sudden and unpremeditated crime, inadvertent and unintentional by its very nature, cannot be “maliciously” incited before the crime is committed. …

While every one must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor vehicle laws or administration of drugs to procure an abortion. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. There is no inherent reason why, prior to the commission of such a crime, one may not aid, abet, counsel, command, or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. …

… [T]he present indictment for involuntary manslaughter is not self–contradictory when it charges Kelley to be an accessory before the fact. It was possible for him at Pawtucket to intentionally direct and counsel the grossly negligent act which the indictment charges resulted in the crime. Involuntary manslaughter … means that defendants exercised no conscious volition to take life, but their negligence was of such a character that criminal intention can be presumed. 29 C. J. 1154. The crime was consummated when the explosion occurred. The volition of the principals was exercised when they chose negligently to create steam which the boiler could not carry. The doing of the act charged or failure to perform the duty charged was voluntary and intentional in the sense that defendants exercised a choice among courses of conduct. It is obvious that Kelley could participate and is charged with participating in procuring defendants to act in a grossly negligent manner prior to the explosion. … Specific duties are stated to have been laid upon the captain and engineer. Defendant is charged with full knowledge of those duties and of the fact that the boiler was unsafe. He is charged with counseling and procuring the principals at Pawtucket to disregard their duties and negligently create steam. … [A] jury might find that defendant Kelley, with full knowledge of the possible danger to human life, recklessly and willfully advised, counseled, and commanded the captain and engineer to take a chance by negligent action or failure to act. …

Commonwealth v. Roebuck, 32 A.3d 613 (Pa. 2011) Commonwealth v. Roebuck, 32 A.3d 613 (Pa. 2011)

Justice SAYLOR.

In this appeal, we consider whether it is possible, as a matter of law, to be convicted as an accomplice to third-degree murder.

 The … victim was lured to an apartment complex, where he was ambushed, shot, and mortally wounded. Appellant participated, with others, in orchestrating the events, but he did not shoot the victim.

 Appellant was charged with … murder of the third degree. 18 Pa.C.S. § 2502(c). [T]he Commonwealth relied upon accomplice theory, codified in Section 306 of the Crimes Code along with other complicity-based accountability principles. The matter proceeded to a bench trial, and a verdict of guilt ensued.

 On appeal, Appellant argued that there is no rational legal theory to support accomplice liability for third-degree murder. He rested his position on the following syllogism: accomplice liability attaches only where the defendant intends to facilitate or promote an underlying offense; third-degree murder is an unintentional killing committed with malice; therefore, to adjudge a criminal defendant guilty of third-degree murder as an accomplice would be to accept that the accused intended to aid an unintentional act, which is a logical impossibility.

 The Superior Court … highlighted the following statutory prescription pertaining to the requisite mens rea (or mental state) [and which tracks MPC § 2.06(4)]:

When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. [189 Pa. C.S.] § 306(d). …

In reply and in relevant part, the Commonwealth posits that accomplice liability readily pertains to murder of the third degree [because] it is the shared criminal intent motivating the underlying conduct (here, designing to stage a very dangerous altercation) which establishes the requisite criminal culpability. … According to the Commonwealth, it is both rational and sensible to hold one who aids another in malicious conduct to account to the same degree as the principal for foreseeable consequences of the wrongful actions.

 At the outset, it certainly is possible for a state legislature to employ complicity theory to establish legal accountability on the part of an accomplice for foreseeable but unintended results caused by a principal. Indeed, this was the express design of the American Law Institute’s widely influential Model Penal Code.

 To provide appropriate context in considering the MPC’s treatment of complicity theory, it is helpful to review some of the Code’s core theoretical underpinnings. Also impacting on this discussion, the MPC does not employ the term “malice” in its treatment of the crime of murder, but rather, expresses the concept as “reckless[ness] under circumstances manifesting extreme indifference to the value of human life.” …

In addressing the terms of the Model Penal Code, it is important to bear in mind that the Code employs an elements approach to substantive criminal law, which recognizes that a single offense definition may require different culpable mental states for each objective offense element.

 Conceptually, the MPC also recognizes three objective categories of offense elements—conduct, attendant circumstances, and result. See MPC § 2.02. The Code frequently distinguishes among these offense-element categories in its various prescriptions regarding which of the four levels of culpability must be established for any given offense element….

The legal accountability of accomplices for the conduct of others is treated in 2.06 of the Code. [The key MPC provisions are MPC § 2.06(3) and (4)]:

(3) A person is an accomplice of another person in the commission of an offense if ... with the purpose of promoting or facilitating the commission of the offense, he ... aids or agrees or attempts to aid such other person in planning or committing it[.]

(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

Section 206(4) thus prescribes that an accomplice may be held legally accountable where he is an “accomplice in the conduct”—or, in other words, aids another in planning or committing the conduct with the purpose of promoting or facilitating it—and acts with recklessness (i.e., the “kind of culpability ... sufficient for the commission of” a reckless-result offense).

 [MPC] commentary explains that the term “commission of the offense,” as used in Section 2.06(3), focuses on the conduct, not the result. See id. § 2.06, cmt. 6(b), at 310 … This diffuses any impression that an accomplice must always intend results essential to the completed crime. The commentary then points to the fourth subsection as supplying the essential culpability requirement, as follows:

One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it unless the case falls within the specific terms of Subsection (4).

MPC § 2.06, cmt. 6(b), at 311 (emphasis added). According to the commentary, the purport of the fourth subsection is to hold the accomplice accountable for contributing to the conduct to the degree his culpability equals what is required to support liability of a principal actor. …

Justice EAKIN, concurring: … As Appellant’s syllogism is based on a false premise, his argument fails. Indeed, an accomplice to third degree murder does not intend to aid an unintentional murder; he intends to aid a malicious act which results in a killing. Suppose an accomplice hands a gun to the principal and says “shoot that victim—I don’t care if he dies or not, but shoot him.” The principal shoots the victim in the leg, but the victim dies—it is classic third degree murder, there being no proof of specific intent to kill, but a clearly malicious act regardless of the consequences. The same logic that enables a murder charge against the principal binds the accomplice as well—both committed an intentional malicious act that resulted in the death of another, and both are guilty of the murder charge that follows. [I concur.]

Male Accomplice Liability for Abortion Crimes Male Accomplice Liability for Abortion Crimes

Michelle Oberman & W. David Ball, When We Talk About Abortion, Let's Talk About Men, N.Y. Times, June 2, 2019

Trapps v. United States Trapps v. United States

Read the following excerpt from Trapps and consider whether a) the trial court's instructions are correct, and b) the court should affirm the defendant's conviction in light of the law of attempts and Mr. Trapps' conduct in these circumstances.

Robert TRAPPS, Appellant, v. UNITED STATES, Appellee.

No. 03-CF-856.

District of Columbia Court of Appeals.

Argued Nov. 3, 2005.

Decided Dec. 1, 2005.

*485Jonathan R. Fellner, appointed by the court, for appellant.

Thomas S. Rees, with whom Kenneth L. Wainstein, United States Attorney, and John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Thomas J. Tourish, Jr., Assistant United States Attorney, were on the brief, for appellee.

Before SCHWELB and REID, Associate Judges, and FERREN, Senior Judge.

REID, Associate Judge:

Appellant Robert Trapps was convicted of the offense of possession of cocaine with intent to distribute.1 He filed a timely *486notice of appeal challenging his conviction on the grounds that the trial court erred by (1) giving the jury an improper aiding and abetting instruction; (2) twice charging the jury with anti-deadlock instructions during its deliberations; and (3) failing to grant his motion for judgment of acquittal. Discerning neither instructional nor evi-dentiary error, we affirm the judgment of the trial court.

FACTUAL SUMMARY

To establish its case against Mr. Trapps, the government presented the testimony of several police officers from the Metropolitan Police Department (“MPD”). Officer Anthony Greene, an investigator for the Seventh District Narcotics Unit, who had participated in over 1,000 “narcotics-related arrests,” was engaged in an undercover “pre-search warrant surveillance of ... 3731 Horner Place, [in the] Southeast [quadrant of the District of Columbia],” on November 6, 2001. Within a thirty-minute period of time, “there was a lot of foot traffic going to the door and knocking on the door,” but none who knocked actually gained entrance. Eventually a green Cadillac drove up and a man, later identified as Moses Brown, exited the vehicle. “[A]ll [of] the people [who] were waiting out in front of the house rushed to the Cadillac.” After Mr. Brown had “a brief conversation” with the people who had rushed.to his car, he “reaeh[ed] into ... what appeared to be a center console” and “[with] a razor blade” he began “cutting some objects up.” Money was given to Mr. Brown in exchange for some of the objects. Officer Greene believed that a drug transaction was in progress, and radioed information to members of the Seventh District vice unit.

Mr. Brown entered the Horner Place residence, and Officer Greene “advised” members of the Seventh District vice unit that it was “a good time to do the search warrant,” which Officer Boyd, who was seated in the vehicle with Officer Greene, had obtained prior to the surveillance. Officer Chris Huxoll, also of the Seventh District vice unit, was part of the search team. “In the basement of the [Horner Place] house [he] found empty ziplock bags, small empty bags, ... with some ... white powder residue, and some razor blades” as well as “a large quantity of a white rock substance that was also in ziplocks ... ”; the empty ziplocks, as well as razor blades, and two plates with white powder residue “were located on top of the bar area,” and some ziplocks, including those with a white substance, were inside of a drop ceiling. These items were seized by Officer Durriyyah Habeebúllah, who at the time was part of the Seventh District’s focus mission unit. Later, Officer Anthony Moye conducted a “field test [which] was positive for the presence of cocaine.”

Officer Huxoll spoke with Mr. Trapps inside the Horner Place residence when the police seized the drugs found on the premises. In addition to the drugs, the police seized mail from the Horner Place residence dining room table which belonged to Mr. Trapps. Detective Mark Christopher Stone, assigned to MPD’s major narcotics branch, gave expert testimony regarding the “distribution and use of narcotics” as well as the packaging and pricing of drugs. In his experience the street value of the cocaine seized from the Horner Place residence was in the range of $4,000.00.

Mr. Trapps was the only defense witness. He stated that he owned the Hor-ner Place residence, and had lived there since 1978. He regularly went into the basement of his home because it had the only working bathroom in the house. Mr. Trapps allowed Mr. Brown into his home “three or four times.” He admitted telling *487Officer Cephas that “once or twice [he] had seen [Mr. Brown] sell drugs from [his] house,” but that he had explained to Kenny Edmonds, an acquaintance of Mr. Brown who stayed in Mr. Trapps’ basement for a period of time, that he did not “want the traffic ... [or] the hassle ... [or] the headache.”

On cross-examination, in response to the question of whether “[he] knew [Mr. Brown] sold crack cocaine,” Mr. Trapps stated: “Yes, I did. Yes.” He acknowledged that “on certain occasions” others would “use [him]” to purchase drugs for themselves. As he put it, “I was like a go between sometimes if I was standing outside and they would ask where [Mr. Brown] was.” Mr. Trapps was aware that Mr. Brown would go to the basement when he entered Mr. Trapps’ home, and that “people from the neighborhood would come by knocking on [his] door looking for [Mr. Brown].” Mr. Trapps was asked whether he had “told [Officer Cephas] that [he] had seen [Mr. Brown] sell ... narcotics from [Mr. Trapps’] house.” Mr. Trapps replied, ‘Tes, ma’am. I did tell him that.” In addition, Mr. Trapps was asked whether he informed Officer Cephas that Mr. Brown “had in fact sold drugs to [him].” He answered, “Yes,” but later denied that this statement was true.

ANALYSIS

The Aiding and Abetting Instruction and the Challenge to the Sufficiencg of the Evidence

Mr. Trapps primarily argues that even if a basis existed for giving the aiding and abetting instruction, “the [trial court] erred by incorrectly instructing the jury on the law.” Specifically, he contends that the court improperly told the jury, “you must find that [the defendant] knowingly associated himself with the person who committed the crime,” but should have stated, “you must find that the defendant knowingly associated himself with the commission of the crime,” (emphasis in original). The government contends that Mr. Trapps raised no objection in the trial court to the judge’s aiding and abetting instruction and that, under the plain error doctrine applicable here, “there was no error of any stripe,” let alone one “structural” or “plain.”

Before considering the applicable law for the resolution of Mr. Trapps’ aiding and abetting contention, we briefly set forth the factual context for this issue. The government argued in its opening statement that “Mr. Trapps by allowing [Mr.] Brown to use his house, to store ... drugs in his house with the full knowledge that [Mr. Brown] was selling drugs, ... he facilitated that drug operation, [and] he is as guilty as Mr. Brown himself.” Near the end of the government’s case, the trial judge alerted both counsel to her belief that an issue likely to surface is “whether it’s appropriate for the [trial court] to give an aiding and abetting instruction on the charge of possession with intent to distribute.” The government agreed, stating that it “will be requesting that instruction.” Defense counsel said nothing about the trial court’s inquiry. At the conclusion of the defense’s case, the trial judge generally informed counsel about the instructions she planned to give, and asked if there was “any objection to these instructions.” Defense counsel remarked, “at this time I’m satisfied.” Shortly thereafter, however, defense counsel said: “At some point I’d like to go back to the aiding and abetting issue. I was trying to look for a case before I made my objection.”

When the case resumed several days later, Mr. Trapps did not revisit the question concerning whether an aiding and abetting instruction would be appropriate. The trial court proceeded to charge the *488jury; including the law concerning aiding and abetting.2 At the end of the charge to the jury, the trial court inquired whether “the government [was] satisfied with the instructions,” and then asked the defendant. Defense counsel said, ‘Tes, Your Honor.”3

Under Super. Ct. Crim. R. 30, objection to a jury instruction must be raised with specificity before the jury begins its deliberations. And we have declared that “objections to jury instructions must be specific enough to direct the judge’s attention to the correct rule of law.” Brown v. United States, 881 A.2d 586, 593 (D.C.2005) (quoting Russell v. United States, 698 A.2d 1007, 1012 (D.C.1997)) (other citations and internal quotation marks omitted). Furthermore, “[a] defendant’s failure to raise objections in the manner required by Rule 30 limits the scope of our review to plain error.” Green v. United States, 718 A.2d 1042, 1056 (D.C.1998) (citation omitted). And, in reviewing a challenged instruction, we “consider the instruction as a whole in the context of the entire charge.” Id. at 1058 (citations omitted).

Although Mr. Trapps informed the trial judge that, “at some point,” he would like to return to the question as to whether the instruction was appropriate in his case, defense counsel never raised any specific objection to the instruction prior to the commencement of the jury’s deliberations. Indeed, he expressed satisfaction with the instruction. The government’s reliance on the aiding and abetting theory “was not a surprise,” Porter v. United States, 826 A.2d 398, 409 (D.C.2003), since the government had mentioned its aiding and abetting theory in its opening statement, and the trial judge had raised the possibility of an aiding and abetting charge early in the trial. Thus, Mr. Trapps had ample opportunity to consider that theory and to raise any objection to it before the trial court instructed the jury, and even after the instruction was complete but before the jury retired to deliberate. Since he did *489not state an objection to the instruction with specificity in the trial court, our review is for plain error. See Green, supra, 718 A.2d at 1056, 1058; Brown, supra, at 881 A.2d at 593.

Mr. Trapps now complains specifically about the trial court’s use of the language, “you must find that the [the defendant] knowingly associated himself with the person who committed the crime,” rather than the language now set forth in the Redbook instruction No. 4.02, “you must find that the defendant knowingly associated himself with the commission of the crime.” Yet, we have approved that very instruction previously. See Erskines v. United States, 696 A.2d 1077, 1080 (D.C.1997) (“[T]he jury was correctly told that to convict [the appellant] as an aider and abettor it had to find that he ‘knowingly associated himself with the person who committed the crime ....”) (citation omitted); Hammon v. United States, 695 A.2d 97, 107 (D.C.1997) (trial court did not err in “instructing the jury that it could convict defendants as aiders and abettors ... as long as the defendants knowingly associated themselves with the principal; participated in the crime, and intended to help the crime succeed”). When the aiding and abetting instruction given in this case is examined as a whole, see Green, supra, 718 A.2d at 1058, the trial court did not commit error, let alone plain error, in using the challenged words. Indeed, those words are consistent with D.C.Code § 22-1805 (2001) which focuses on “aiding or abetting the principal offender” 4 (emphasis added). Moreover, the challenged words are consistent with the elements of an aiding and abetting case that the trial court must prove. See Hawthorne v. United States, 829 A.2d 948, 952 (D.C.2003).

In addition to his complaint about the aiding and abetting instruction, Mr. Trapps contends that the trial court erred in denying his motion for judgment of acquittal. The trial court correctly viewed the evidence in the light most favorable to the government. See Zanders v. United States, 678 A.2d 556, 563 (D.C.1996) (citations omitted).

The evidence presented at trial demonstrated that Mr. Brown sold drugs illegally from Mr. Trapps’ Horner Place house; Mr. Trapps admitted that he “told [Officer Cephas] that [he] had seen [Mr. Brown] sell narcotics from [his] house.” Mr. Trapps not only resided at the Horner Place residence, but also owned it. Mr. Trapps was aware that people came to his home to buy drugs from Mr. Brown, and even admitted that he had obtained drugs from Mr. Brown himself. Thus, the first element of an aiding and abetting offense was met: “a crime was committed by someone.” Hawthorne, supra, 829 A.2d at 952; Price v. United States, 813 A.2d 169, 176 (D.C.2002). In addition, the second element, “the accused assisted or participated in its commission,” Hawthorne, supra, 829 A.2d at 952, also was satisfied since Mr. Trapps admitted not only that he knew Mr. Brown was engaging in drug transactions at the Horner Place residence, but that he, Mr. Trapps, “was like a go between sometimes if [he] was standing outside [his home] and [others] would ask where [Mr. Brown] was.” Others “used [him]” to purchase drugs. Thus, there was evidence showing that Mr. Trapps “assisted or participated in [the] commission” of the crime charged, and “facilitated]” the crime and “associated [himself] with the unlawful activity.” Bolden v. United States, 835 A.2d 532, 535 (D.C.2003) (lessee *490of property had knowledge of illegal drug activity there and “made the house available to others for the illicit activity”). And, Mr. Trapps’ own testimony that he regularly used the only working bathroom in the basement, where the empty ziplock bags, razor blades and two plates coated with white powder residue were located on top of the bar, and that he told others “that this stuff had to stop,” established the third element of aiding and abetting, that “his participation was with guilty knowledge.” Hawthorne, supra. In short, Mr. Trapps cannot prevail on his sufficiency of the evidence argument. See Earle v. United States, 612 A.2d 1258, 1266 (D.C.1992); Johnson v. United States, 883 A.2d 135, 142 (D.C.2005).5

The Anti-Deadlock Instruction

Mr. Trapps maintains that “[t]he trial court committed reversible error by giving two anti-deadlocking charges.” On the first afternoon of jury deliberations, the jury sent a note to the trial court saying, “We) the jury, are hopelessly deadlocked on both charges.” The trial court asked whether counsel wanted an anti-deadlock charge, or whether they would agree to an instruction used by the Honorable Gregory Mize, another trial judge in the Superior Court. The government expressed the view that “an anti-deadlocking charge [was] premature at [that] point” because “the jury has only had this case for ... just over four hours and the lunch period is included in there.” Defense counsel opposed the Mize instruction on the ground that it “will not aid [the jury] in any manner.” The trial judge decided to give the Mize instruction, but then to dismiss the jury for the day.6 The following day, around late morning, the jury again sent a *491note to the trial judge saying: “We believe we are hopelessly deadlocked and don’t think we can come to a consensus on these issues.” Government counsel and defense counsel agreed with the trial court’s decision to give an anti-deadlocking charge. Defense counsel raised no objection at all.7 Later that afternoon, around 8:36 p.m., the jury reached its verdict. On appeal, Mr. Trapps now argues that the trial court erred by giving a second anti-deadlocking instruction. He urges this court to follow United States v. Yarborough, 365 U.S.App. D.C. 137, 400 F.3d 17, 22 (C.A.D.C.2005), where the court reversed a conviction on the ground that the trial court “by departing from the [anti-deadlocking] instruction approved in [United States v.] Thomas [, 449 F.2d 1177 (D.C.Cir.1971) (en banc)], ... acted in a presumptively coercive matter.”

Whether to give an anti-deadlock instruction is committed to the discretion of the trial court. Carey v. United States, 647 A.2d 56, 61 (D.C.1994). Our role on appeal is to determine whether, from all the surrounding circumstances, “it appears [that] [that charge] was coercive.” Id. (citation omitted). And, “[t]he determination of whether coercion exists in a particular case is made by considering the coercive potential of the situation from the jurors’ perspective and the effect of the actions of the trial judge in exacerbating or alleviating potential coercion.” Davis v. United States, 700 A.2d 229, 230 (D.C.1997) (citing Harris v. United States, 622 A.2d 697, 701-02 (D.C.1993)). Furthermore, the anti-deadlock “instruction should not repeatedly be given to a ‘hung jury’ .... ” Epperson v. United States, 495 A.2d 1170, 1176 (D.C.1985). Where the defendant does not make an objection with specificity in the trial court, our review is for plain error. Here, Mr. Trapp made no objection to the second instruction.

Applying the plain error standard, we see no error at all. Yarborough, supra, a plain error case on which Mr. Trapps relies, reflects circumstances different from those in the case before us. While the Mize instruction has similarities with the Council for Court Excellence instruction (based on an Arizona model), which was given in Yarborough, it differed in a fundamental way, as used in this case. The Mize instruction began with a compliment: “I want to compliment you on following so carefully my earlier instruction that whenever you send a note, that you not mention how you are divided on an issue.” In contrast, the instruction in Yarborough commenced, with what could be interpreted as a criticism: “You’ve indicated to me that you’re having trouble reach*492ing a unanimous verdict. I think the record should reflect that you have now been deliberating for a longer period of time than it took you to hear the evidence in this case. I’m very mindful of that.” Id. at 19. As the court said in Yarborough, “[t]he jurors could have taken the remark as a rebuke for engaging in excessively drawn out deliberations.” Id. at 22. Furthermore, the jury in Yarborough returned a verdict not long after receiving the anti-deadlocking instruction, which the court declared “increases the likelihood of coercion.” Id. Here, the trial court delivered the Mize instruction and then dismissed the jury for the day. After receiving another note on the following day stating that the jury was deadlocked, the trial judge gave an anti-deadlock instruction in the late morning, but the jury did not return a verdict until the late afternoon.

Neither the Mize instruction nor the anti-deadlock instruction given in this case can be said to have increased the likelihood of coercion.8 Nor do we have in this case “events surrounding the court’s delivery of the [Mize] instruction [that] suggest a substantial propensity for coercive effect.” Id. The events in Yarborough, which included the trial judge’s entrance into the jury deliberation room without government and defense counsel or a court reporter,9 “suggested] a substantial propensity for coercive effect.” Id. In short, the court in Yarborough determined that the trial court committed plain error in departing from the standard anti-deadlock instruction because of the events surrounding the giving of the non-traditional instruction and because the jury could have interpreted the first part of the instruction as a rebuke. That combination of circumstances does not exist in this case.

Based upon our review of the record, as well as the context and circumstances under which the anti-deadlock instruction was given, we are satisfied that the trial court did not commit any error, let alone plain error. See Nelson v. United States, 378 A.2d 657, 661 (D.C.1977) (“In determining whether the instruction in the present case was so coercive as to constitute plain error, we must ... consider it ‘in its context and under all the circumstances.’ ”) (citing Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965)).

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

So ordered.