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Of "Principals" and "Accessories"

Normally, criminal liability is predicated upon the doing of an act, usually by the defendant. Early in the development of the common law, however, courts recognized that criminal liability could be predicated upon conduct done by a party other than the actual perpetrator of a crime, for whose conduct a defendant should be held responsible. In an early Illinois case, Usselton v. People, 149 Ill. 612, 36 N.E. 952 (1894), the concept of "principals" and "accessories" was described:

"By the ancient common law . . . those persons only were considered principals who committed the overt act, while those who were present, aiding and abetting, where deemed accessories at the fact, and those who, not being present had advised and encouraged the perpetration of the crime, were deemed accessories before the fact. . . . [I]t seems to have been settled as the law that he who was present, aiding and abetting in the crime, was to be considered [as guilty as] a principal. . . . And this continued to be the common law as it was adopted in this State."

Thus, actually committing a criminal act is not the only way in which a person can be convicted of that crime. It is easily understood that a person who is engaged with another in the commission of a crime is also responsible for the others' acts committed during the pursuit of a common criminal venture. This is all part of what the law calls being a "party to the crime of another" and falls in the category of "criminal accountability."

Related to this is the concept of "felony murder," wherein all accomplices are guilty of the murder committed by one of them in a common undertaking. Similarly, when persons are engaged in a criminal conspiracy, all conspirators are guilty of the criminal acts of any of them, as long as those acts are a part of the common criminal enterprise. In conspiracies this is true even if one conspirator commits an act in the commission of a crime that was not anticipated by the others prior to the crime's execution. Conspiracy liability for acts of others is therefore very broad, and it extends even to liability for unanticipated conduct of co-conspirators, as long as it could be reasonably anticipated that a cohort might engage in the unplanned crime during the commission of the crime that they had jointly planned. Less clear are the circumstances under which a defendant can be found guilty of a crime committed by another when the defendant is simply present at the place and time where the crime occurs but when he renders no visible aid to the principal, and when no prior criminal agreement between the defendant and the others who commit the crime can be proved.

In many states, the principles of accountability for conduct of another have been incorporated in criminal codes. For example, in Illinois, the Criminal Code, in Section 5-2, states:

"A person is legally accountable for the conduct of another when:
(a ) Having a mental state described by the statute defining the offense, he causes another to perform the conduct, and the other person in fact or by reason of legal incapacity lacks such mental state; or
(b ) The statute defining the offense makes him so accountable; or
( c ) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. . . ."

It is subsection ( c ) of the above statute that we seek to highlight here as it may apply to "presence" at the scene of a crime. There is another basic and fundamental criminal law principle which holds that one does not become a party to another's criminal conduct by merely being present when the crime occurs. It is likewise true that one does not become a party to another's criminal conduct even when one had prior knowledge that another intended to commit a crime, and did nothing to prevent its commission.

A person who is present when a crime is committed by another becomes a party to, and is guilty of, the crime committed by the other when that person in some way participated or aided the criminal in the commission of the prohibited act. Accomplices are usually present when another commits a crime in which they participate, but it is not their presence alone that makes them guilty; it is the aiding and facilitating of the commission of the crime committed by another that constitutes the act that makes the accomplices guilty. Let us explore this concept of "presence" in greater detail.

In all criminal cases, proof of guilt must be beyond a reasonable doubt, and the prosecution has the burden of presenting evidence which satisfies this burden. It must be obvious that, for this burden to be satisfied when a person's criminal liability is sought to the proved by his presence during the commission of the crime, some evidence of activity by the defendant in addition to mere presence is necessary.

SOME SPECIFIC SCENARIOS EXAMINED

Let us consider Scenario Number 1: Able is a robber. He invites his friend Baker to go with him to lunch. As they are walking toward a restaurant, Able tells Baker, "Wait here a moment. I've got to pick up some change so I can buy you lunch." Able crosses the street and, half a block further, snatches a woman's purse and runs off. A few minutes later, Baker rejoins Able and they proceed to go to lunch. Clearly, Able is at least guilty of "theft from the person" and perhaps even "robbery" if he used or threatened the use of force in obtaining the purse. But is Baker, who saw what happened, and did nothing to prevent it, also guilty of Able's crime?

The answer would be that Baker is not guilty of committing Able's crime. While a person may have a moral duty to prevent the commission of a crime if he can safely do so, there is no legal duty that requires a person to do so under the circumstances given here. While, as a witness to the purse snatching, he was aware that Able was committing a crime, Baker's inaction is not the "aiding and abetting" of Able, because he neither had a criminal intent to steal nor did he assist Able in the commission of the crime.

Consider Scenario Number 2: Assume instead that Able has the intention of robbing the Third National Bank. Without revealing this purpose, he asks his friend Baker if Baker can give him a ride to the bank, and then wait for him outside to take him back home. Baker agrees. When the couple get to the bank, Able enters and holds up the bank. Then Able leaves the bank, enters Baker's car, and is driven home by Baker. Again, Able is clearly guilty of robbery. Since Baker drove Able to the place where he intended to commit a crime, is Baker also guilty of the same robbery?

Again the answer would be that Baker is "not guilty." In this scenario, Baker did do something that helped Able commit a crime – he drove him to the bank – but Baker was unaware of Able's criminal purpose. Thus, even though he did aid and abet Able in some fashion by driving him to the bank, he lacked the intent to participate in any crime. Baker was not aware that one was occurring. To be guilty as an accessory to another's crime, there must be some aid given to the principal who commits the crime, and there must also be an intent to facilitate or assist the criminal.

Let's add a degree of "knowledge about the crime" on behalf of the various parties in the next two scenarios.

Scenario Number 3: Rivera and Victor belong to the Disciples street gang. One day, as Victor is driving down the street, he sees Rivera and other fellow Disciples confronting a person whom Rivera believed belonged to the Kings, a rival gang. Victor stops at the scene of the confrontation, rolls down his window, and asks what's going on. Rivera in turn asks Victor, "Is that guy [pointing to the soon-to-be-victim Pedro] a member of the Kings?" Victor, knowing that this will place Pedro in danger, says, "He is!" Rivera thereupon shoots and kills Pedro. Is Victor also guilty of murder on an accountability basis?

Looking at the actual case on which the above scenario is based, the trial court had convicted Victor on an accountability theory, and the intermediate appellate court had affirmed the conviction. However, the state supreme court reversed. In People v. Perez, 189 Ill.2d 254, 725 N.E.2d 1258 (2000), the court ruled that the defendant Victor was not accountable for the murder committed by Rivera. The court said that defendant did not become an accomplice to the murder merely by being present at the scene of the crime knowing that a crime was going to be committed. We cannot convict people of crimes committed by others under those circumstances because the principle of "guilt by association" is one that American legal traditions have strongly discredited. The court explained:

"In the instant case, the State attempted to establish that defendant was a member of the Disciples, and thus must have shared Rivera's motive to harm Pedro, whom Rivera suspected to be a member of a rival gang. However, the appellate court found only that defendant associated with members of the Disciples. Guilt by association is a thoroughly discredited doctrine. The fact that defendant lived in a Disciple neighborhood and had friends who were gang members does not establish that he possessed any ill-will toward Pedro. Rather, the evidence presented at trial suggested that defendant did not share Rivera's motive to harm Pedro, where it was uncontradicted that while Pedro was defendant's childhood friend, Rivera and defendant had never even spoken to each other. Therefore, we conclude that defendant did not share the criminal intent of the principal, Rivera."

But what of the fact that defendant seemed to at least have been involved in the very altercation that resulted in Pedro's death? In fact, it had been shown that after the shooting, defendant Victor Perez had fled the scene. On that issue, the court explained:

". . . [T]his court has recently stressed that presence at the commission of the crime, even when joined with flight from the crime or knowledge of its commission, is not sufficient to establish accountability. Accountability focuses on the degree of culpability of the offender and seeks to deter persons from intentionally aiding or encouraging the commission of offenses. Thus, unless the accomplice intends to aid the commission of a crime, no guilt will attach. [Emphasis in court's opinion]

"Applying these principles to the facts of the instant case, we find that while defendant was present at the scene of the crime, knew of its commission and fled the scene, the evidence was not sufficient to prove that he intentionally aided in or encouraged the crime's commission. We reject the trial court's reasoning that, because defendant sometimes associated with members of the Disciples, he must have known that by answering the question about Pedro's gang status, he was precipitating Pedro's shooting. . . . [There was] uncontested evidence that, when defendant answered the question about Pedro's gang status, he did not know of the ongoing dispute and prior altercations between Rivera and Pedro, he did not know that Rivera, or anyone at the scene, was armed, and he did not see any signs of impending violence."

And here the court concluded its discussion with the black-letter rule of law: "In order to hold defendant accountable for Pedro's murder, defendant must have, with the requisite intent, aided or abetted Rivera prior to or during the commission of the offense. Without knowledge of any common criminal design to harm Pedro, defendant could not intentionally aid in the scheme's commission."

ANOTHER CASE, A DIFFERENT RESULT

Scenario Number 4 is another case on accountability. In this fact setting, principal and alleged accomplice belong, again, to the same street gang. The principal in the shooting is Rogers; the alleged accomplice is defendant Nutall. Rogers is sitting in his car, and Nutall, who had been walking on the sidewalk, stopped to talk to Rogers through the open car window. As they are having a conversation, two people belonging to the Blackstones gang drive by on bicycles, and Rogers and Nutall and the two bicyclists exchange some threats. Rogers then tells Nutall to get in his car. Nutall does so, knowing that Rogers intends to chase the bicyclists down. After Rogers has been driving around some, they encounter the bikers again. Rogers then tells Nutall to shoot the bikers. Nutall refuses to do so because, supposedly, he would have to shoot across Rogers, whereupon Rogers shoots one of the bikers. We ask the same question: Is Nutall guilty of the murder committed by Rogers?

Again, the trial court convicted Nutall on an accountability theory. The appellate court agreed and affirmed (the case did not go to the state supreme court!) in People v. Nutall, 312 Ill.App.3d 620, 728 N.E.2d 597 (1st Dist. 2000). Why is this result in Nutall different from that which obtained in the Perez case? As we stated the facts, there was very little difference between this and the previous scenario! If the court had reversed the conviction, as the Perez court had done, its decision would be understandable. But neither the Nutall facts nor the issues were the same as in Perez.

As to the factual differences, the story given by Nutall was somewhat contradicted by the evidence; he had given conflicting accounts of the events at different times. He had also admitted his involvement in the occurrence. Legally, the jury was properly instructed, by approved "pattern instructions," on the same rules on accountability for conduct of another that we discussed in the Perez case. The only crucial legal issue on appeal was that the defense had tendered a specially drafted instruction on accountability that the trial court had refused to give. And that refusal was
deemed to have been proper on appeal.

It can be readily seen that how cases will be determined depends upon the facts, and it behooves police to carefully marshal the evidence when defendants are accused of crimes committed by another on an accountability theory. If the facts are in dispute, the fact finding of the jury or trial bench will ordinarily be upheld on appeal. Reviewing courts give great deference to the facts as found at trial, and will reverse a conviction only if, as a matter of law, evidence needed to satisfy the elements of the crime beyond a reasonable doubt was not presented by the prosecution. It must be kept in mind that the Illinois reviewing courts have been rather adamant in stating that mere presence at the scene of a crime is insufficient to make one guilty as an accessory.

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