133 N.J. 447 (1993) 628 A.2d 270

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BENNIE EUGENE BRIDGES, DEFENDANT-RESPONDENT.

The Supreme Court of New Jersey.

Argued January 4, 1993. Decided July 30, 1993.

*448 Robert E. Bonpietro, Deputy Attorney General, argued the cause for appellant (Robert J. Del Tufo, Attorney General of New Jersey, attorney).

*449 Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for respondent (Zulima v. Farber, Public Defender, attorney).

The opinion of the Court was delivered by HANDLER, J.

Defendant in this case was convicted by a jury of conspiracy and several substantive crimes, including murder, which were committed in the course of carrying out the conspiracy. On appeal the Appellate Division, with a dissent, ruled that the liability of a co-conspirator for the commission of substantive crimes, like accomplice liability, requires specific intent to commit those crimes. On that ground it affirmed the conspiracy conviction but reversed the substantive criminal convictions. The dissent concluded that a conspirator can be vicariously liable for the substantive crimes of co-conspirators without the specific mental state otherwise required of those crimes, provided that their commission of those crimes was foreseeable as a natural consequence of the conspiracy.

The issue that divided the Appellate Division poses the question on this appeal brought by the State as of right. R. 2:2-1(a).

I

On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his "boys." As he drove past the house on his way to Trenton, Bridges again shouted, "I'm going back to Trenton to get my niggers."

When Bridges arrived in Trenton he met two acquaintances, co-defendants Keith D. Bing and Eddie E. Rolle. Bridges asked Bing and Rolle to return to the party with him because he expected a confrontation. The two co-defendants agreed to accompany *450 Bridges to the party in Roebling. On the way to the party, the trio briefly stopped at Bing's house in West Trenton. Bridges remained in the car while the co-defendants entered the house. On returning to the car, co-defendants told Bridges that they had "some stuff for the guys" at the party. Bridges understood that to mean that Bing and Rolle had retrieved either guns or knives from Bing's house. After driving a few blocks, co-defendants told Bridges that they were carrying guns "so they'll stay back." According to Bridges, the guns were necessary "to intimidate the majority of the boys at the party."

Bridges and his companions returned to the party at approximately 2 a.m. A witness who was a guest at the party testified that he heard Rolle say, "Trenton's in the house. Now there's going to be trouble." Bridges exclaimed, "I'm not no joke."

The trio entered the basement, and Bridges began to argue again with Strickland. Defendant said he would not leave the house until he "fuck(ed) somebody up." John Raspberry, a friend of Strickland, interceded and agreed to fight. A crowd then gathered to watch Bridges and Raspberry begin their fight in the street in front of Smith's house. Bing shouted to the crowd, "Nobody jump in," and Rolle warned, "Nobody here is Superman." A witness testified that the statement by Rolle was meant to imply that nobody in the crowd was bullet-proof.

During the fight Bridges was able to get on top of Raspberry, at which point either Strickland or another member of the crowd pulled defendant off and struck him in the head. At the same time, a member of the crowd struck Bing in the face. Bing immediately drew a .22 caliber revolver, and Rolle pulled out a.32 caliber revolver. Rolle pointed the gun at the crowd and then fired it into the air. Numerous shots were then fired into the crowd as the onlookers tried to flee. Shawn Lockley was shot in the chest and died at the scene; Paul Suszynski was injured by a bullet in the shoulder.

The trio quickly returned to their car, and Bridges asked the co-defendants for their guns, which he later hid in his grandparents' *451 home. The next day, an investigator from the Burlington County Prosecutor's Office tried to locate Bridges by interviewing defendant's mother, sister, cousin, and girlfriend. That same afternoon defendant's mother informed him that the police were looking for him and that someone had died as the result of the shooting the night before. Bridges then rapidly retrieved the guns and placed them in another hiding place.

That evening the trio went to Manhattan to obtain false identification, and the next morning they caught a flight to Atlanta. Bing and Rolle flew on to Jacksonville, Florida. Bridges stayed in Atlanta for one month and then moved on to Fayetteville, North Carolina. While Bridges was in Fayetteville, Bing told him by phone that he and Rolle had been arrested. Bridges himself was soon arrested by a North Carolina Highway Patrol officer after he was pulled over for speeding.

The two guns used in the shooting were eventually turned over to the police through an informant. The serial number of the .32 caliber revolver had been removed. Neither co-defendant had a permit for the guns.

The State charged Bridges with conspiracy to commit the crimes of possession of a weapon for an unlawful purpose (contrary to N.J.S.A. 2C:39-4a); conspiracy to possess a weapon without a permit (contrary to N.J.S.A. 2C:39-5b); and conspiracy to commit aggravated assault (contrary to N.J.S.A. 2C:12-1b(4)), as well as those substantive crimes. Under N.J.S.A. 2C:12-1(b)(4), aggravated assault consists of "knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm ... at or in the direction of another ..." In addition, the State charged defendant under N.J.S.A. 2C:11-3a(1) with murder, the lesser crime of aggravated manslaughter, and possession of a defaced firearm "by being legally accountable for the conduct of a co-conspirator whose acts are the natural and probable consequences of the conspiracy."

After a five-day jury trial, Bridges was convicted of second-degree conspiracy for the three counts charged (contrary to *452 N.J.S.A. 2C:5-2); murder (contrary to N.J.S.A. 2C:11-3a(1)); third-degree aggravated assault (contrary to N.J.S.A. 2C:12-1b(2)); fourth-degree aggravated assault (contrary to N.J.S.A. 2C:12-1b(4)); two counts of possession of a firearm for an unlawful purpose (contrary to N.J.S.A. 2C:39-4a); and two counts of possession of a handgun without a permit (contrary to N.J.S.A. 2C:39-5b). Bridges was acquitted on one count of possession of a defaced firearm (pursuant to N.J.S.A. 2C:39-3d).

The trial court merged the murder conviction with the second-degree conspiracy, fourth-degree aggravated assault, and the two convictions for the possession of a firearm for an unlawful purpose, and sentenced Bridges to a term of life imprisonment with a thirty-year period of parole ineligibility. It imposed a consecutive term of four years with a three-year period of parole ineligibility for the third degree-aggravated assault, and to a concurrent term of four years on the two merged convictions for carrying a firearm without a permit. The Appellate Division, with a dissent, affirmed the second-degree conspiracy conviction but reversed Bridges' other convictions and remanded the matter for retrial. 254 N.J. Super. 541, 568, 604 A.2d 131 (1992).

The Appellate Division majority determined that the Code of Criminal Justice, which provides that the involvement in a conspiracy can be the basis for criminal liability for the commission of substantive crimes, N.J.S.A. 2C:2-6b(4), requires a level of culpability and state of mind that is identical to that required of accomplice liability. The Appellate Division therefore ruled that a conspirator is vicariously liable for the substantive crimes committed by co-conspirators only when the conspirator had the same intent and purpose as the co-conspirator who committed the crimes. 254 N.J. Super. at 560, 562, 604 A.2d 131.

II

The provision of the New Jersey Code of Criminal Justice ("Code") that posits criminal liability on the basis of participation *453 in a conspiracy is silent with respect to its culpability requirement. It provides:

A person is legally accountable for the conduct of another person when: ... He is engaged in a conspiracy with such other person.

[N.J.S.A. 2C:2-6b(4).]

The majority below concluded that the Code contemplated "complete congruity" between accomplice and vicarious conspirator liability. 254 N.J. Super. at 562, 604 A.2d 131. The majority acknowledged that State v. Stein, 70 N.J. 369, 360 A.2d 347 (1976), may be a controlling decision. However, it believed that its interpretation of the Code, that a co-conspirator share with the perpetrator the intent to commit the substantive crime, was not inconsistent with that decision. Id. 254 N.J. Super. at 553-55, 604 A.2d 131. By contrast, the dissent found that the statute was designed to codify the Court's holding in Stein, and that holding, contrary to the majority's interpretation, recognized liability of a co-conspirator for crimes that were the natural and probable consequence and were committed in furtherance of the conspiracy without having any specific intent to commit those crimes. Id. at 569, 604 A.2d 131 (Shebell, J.A.D., dissenting).

A.

Because the holding in Stein is central to an understanding of conspiracy liability, and was the principal point of contention in the Appellate Division, our examination of N.J.S.A. 2C:2-6b(4) begins with an analysis of that decision.

The defendant in Stein was a Trenton attorney who suggested to an "underworld figure" that a particular home would be a good target for a burglary because the residents kept large amounts of cash on hand. 70 N.J. at 373, 360 A.2d 347. About a year after the defendant's last conspiratorial discussion with the "underworld figure," an armed robbery occurred at the residence. Id. at 374, 360 A.2d 347. The defendant was not at the scene and did not participate. The police arrived while the robbery was in progress, *454 and the culprits took the homeowner's wife and daughter hostage in an attempt to escape. Ibid. During the ensuing high speed chase, the robbers crashed into a road block and critically injured two police officers. The mother and daughter, however, were freed. Id. at 374-75, 360 A.2d 347.

At trial, the defendant was convicted of conspiracy to steal currency, armed robbery, assault with an offensive weapon, kidnapping, kidnapping with an offensive weapon, assault on the injured police officers, obstruction of justice, and conspiracy to obstruct justice. Id. at 374, 360 A.2d 347. The Appellate Division reversed all but the two conspiracy convictions and the conviction for armed robbery. Ibid. This Court on appeal noted that the trial court had used the "conventionally stated rule" that conspirators are liable for the criminal acts of their co-conspirators that "follow[] incidentally in the execution of the common design as one of its probable and natural consequences..." Id. at 387, 360 A.2d 347. It applied that rule to hold that the robbery and the assault on the homeowner's wife were natural or probable consequences of the conspiracy, and that the defendant's convictions on those counts should be upheld. Id. at 389, 360 A.2d 347. However, the Court ruled that the defendant's convictions for kidnapping and armed assault on the police should be reversed because "it would be unreasonable for a fact-finder to find ... beyond a reasonable doubt that they were necessary, natural or probable consequences of the conspiracy." Id. at 390, 360 A.2d 347.

The Court in Stein confirmed the basic principles of the substantive law concerning co-conspirator liability in this State. That law, most broadly stated, held a conspirator responsible for all criminal acts committed in furtherance of the conspiracy. E.g., State v. Murphy, 168 N.J. Super. 214, 217-18, 402 A.2d 944 (App. Div. 1979); State v. Maddox, 153 N.J. Super. 201, 212, 379 A.2d 460 (App.Div. 1977).

The most influential common-law precursor to Stein was State v. Carbone, 10 N.J. 329, 91 A.2d 571 (1952), a gambling-conspiracy case, in which the Court ruled that the acts of one conspirator in *455 furtherance of the conspiracy are deemed to be the acts of all of the co-conspirators under a mutual-agency theory. Id. at 339-40, 91 A.2d 571. The Court most recently affirmed the agency principles of Carbone in State v. Phelps, 96 N.J. 500, 510, 476 A.2d 1199 (1984) (explaining that a conspiracy "confers upon co-conspirators the authority to act in another's behalf to achieve the goals of the common scheme" and that "conspirators are substantively liable for the acts of their co-conspirators in furtherance of the common plan" (citing Carbone, supra, 10 N.J. at 339-40, 91 A.2d 571)); see also State v. Porro, 152 N.J. Super. 179, 188, 377 A.2d 909 (App.Div. 1977) (citing Carbone for rule that acts and declarations of conspirator in furtherance of conspiracy are binding on all parties to conspiracy).

The Court in Stein was strongly influenced by the United States Supreme Court's decision in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The Supreme Court in Pinkerton, dealing with the liability of co-conspirators, extended the settled law concerning liability for an overt act to all substantive acts "committed by one of the conspirators in furtherance of the unlawful project," that is, "acts done in execution of the enterprise." Id. at 647, 66 S.Ct. at 1184, 90 L.Ed. at 1496. Significantly, the Supreme Court added:

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project or was merely a part of the ramification of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not the case. (Emphasis added).

[Ibid.]

The general rule of co-conspirator liability that Stein extrapolates from Pinkerton is that so long as a conspiracy is still in existence, "`an overt act of one partner may be the act of all without any new agreement specifically directed to that act,'" provided the substantive act could "`be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.'" *456 70 N.J. at 388, 360 A.2d 347 (quoting Pinkerton, supra, 328 U.S. at 647-48, 66 S.Ct. at 1184, 90 L.Ed. at 1497).

The Appellate Division majority reasoned that Pinkerton was not designed to "read out of vicarious liability the element of intent vis-a-vis the substantive offense." 254 N.J. Super. at 554, 604 A.2d 131. It said that Pinkerton's language — "which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement" — plainly mandates that a crime "must have been within [a co-conspirator's] contemplation when he entered into the agreement and reasonably comprehended by his purpose and intention in entering into the agreement." 254 N.J. Super. at 554-55, 604 A.2d 131.

The Appellate Division thus interpreted Pinkerton to prescribe a requirement of subjective foreseeability of the criminal consequences as a basis for vicarious co-conspirator liability. That understanding of Pinkerton is not supported. Although the determination, uttered as dictum, in Pinkerton has been subject to criticism, see, e.g., Note, Vicarious Liability for Criminal Offenses of Co-Conspirators, 56 Yale L.J. 371 (1947), it has not been disputed that it purported to impose vicarious liability on each conspirator for the acts of others based on an objective standard of reasonable foreseeability. Even though what weight courts would ultimately give to that rule was unclear, Note, Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 994 (1959), it was understood that the liability of a co-conspirator under the objective standard of reasonable foreseeability would be broader than that of an accomplice, where the defendant must actually foresee and intend the result of his or her acts. Id. at 996.

That understanding of Pinkerton is also widely accepted by commentators and treatises, whether they are critical of its rule, see, e.g., Sanford H. Kadish, Complicity, Cause and Blame: A Study In the Interpretation of Doctrine, 73 Cal.L.Rev. 323, 363-64 (1985); Paul H. Robinson, Imputed Criminal Liability, 93 Yale L.J. 609, 666 n. 226 (1984) (citing, among other cases, Stein, *457 supra); Note, Survey of Criminal Procedure — Double Jeopardy, Right to Counsel, Entrapment, Prosecution Disclosure of Material Evidence (1975-76 N.J. Supreme Court Term), 30 Rutgers L.Rev. 630, 643 (1977), or only expounding the existing law. See, e.g., 15A C.J.S. Conspiracy § 74 (Supp. 1992); 16 Am.Jur.2d Conspiracy § 19 (Supp. 1992); Note, Conspiracy, 24 Am.Crim.L.Rev. 459, 485 (1987); 4 Wharton's Criminal Law § 732 (Torcia, 14th ed. 1981). That understanding of Pinkerton is also consistently followed by federal courts. See, e.g., United States v. Garcia, 954 F.2d 12, 15 (1st Cir.1992); United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); United States v. Montanye, 962 F.2d 1332, 1345 (8th Cir.1992); United States v. Jordan, 927 F.2d 53, 56 (2d Cir.1991), cert. denied, ___ U.S. ___, 111 S.Ct. 2811, 115 L.Ed.2d 983 (1991); United States v. Anderson, 933 F.2d 1261, 1275 (5th Cir.1991); United States v. Edwards, 945 F.2d 1387, 1392 (7th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992); United States v. Gonzalez, 918 F.2d 1129, 1134 (3d Cir.1990); United States v. Garcia, 909 F.2d 1346, 1350 (9th Cir.1990); United States v. Lawson, 872 F.2d 179, 182 (6th Cir.1989), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); and United States v. Broadwell, 870 F.2d 594, 603-04 (11th Cir.1989), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107 L.Ed.2d 85, (1989). Hence, the assertion of the lower court majority that the holding in Stein, as derived from Pinkerton, is a "shorthand expression ... of the principle ... that the substantive crime must have been a necessary or natural consequence of the agreement which was reasonably foreseen as such by the conspirator," 254 N.J. Super. at 555, 604 A.2d 131, does not comport with the widely accepted understanding of the Pinkerton rule.

B.

The Appellate Division majority further determined that the Legislature, although cognizant of the Stein decision, did not intend to eliminate or reduce the mental state requirement of a *458 conspirator for a co-conspirator's commission of a substantive crime in enacting N.J.S.A. 2C:2-6b(4).

According to the majority, the Final Report of the New Jersey Criminal Law Revision Commission, which proposed the Code in 1971, rejected the separate imposition of the vicarious liability for co-conspirators. The legislative history of N.J.S.A. 2C:2-6b(4), which was subsequently added and makes express reference to vicarious conspirator liability, was too sparse to suggest that the Stein decision had prompted the Legislature to make a change in the Code. However, the legislative history available to the Appellate Division has been supplemented by documentation subsequently discovered in the archives of the Office of Legislative Services. That history directly illuminates the passage of the Code's vicarious-liability conspiracy provisions.

The original draft of N.J.S.A. 2C:2-6, completed in 1971, did not contain subsection b(4). The first version provided for "legal accountability" for the commission of crimes by others without any reference to conspiracy as a basis therefor. It thus mirrored § 2.06 of the Model Penal Code (MPC), see I Model Penal Code and Commentaries at 295-97 (1985), and the commentary to the proposed draft closely followed the rationale used to explain the structure of MPC § 2.06. See I The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission at 18-19 (1971) (Final Report).

Borrowing from the MPC commentary, the Commission commentary explained that conspiracy by itself, contrary to existing case law in New Jersey, should be eliminated as a basis of vicarious liability for substantive crimes committed in furtherance of the conspiracy because "there [was] no other or better way to confine within reasonable limits the scope of liability to which conspiracy may theoretically give rise" and to end the practice of imposing co-conspirator liability for all substantive offenses in "sprawling conspiracies." II Final Report, supra at 58. Consequently, the original draft of the Code confined vicarious criminal *459 liability to accomplices who had the purpose of promoting or facilitating the commission of a specific substantive offense. Ibid.

Nonetheless, by the time the Legislature passed the Code in 1978, subsection 6b(4) was included. The majority of the Appellate Division found that "the insertion of [the] subsection was for technical reasons only ... [perhaps] as a matter of symmetry," 254 N.J. Super. at 561, 604 A.2d 131. However, the legislative history subsequently discovered dispels that inference.

Some three years after the Commission had issued its Final Report on the proposed Code, the Assembly Judiciary, Law, Public Safety and Defense Committee (Judiciary Committee), held a meeting on November 14, 1974, regarding the proposed draft of the Code. A memorandum of the minutes for that meeting reveals that a representative from the Attorney General's Office objected to excluding from subsection 2C:2-6(b) any provision making a conspirator responsible for the actions of co-conspirators in furtherance of a conspiracy. The representative stated that that provision was particularly important in organized-crime prosecutions. To meet that concern, it was suggested that the language "he is engaged in conspiracy with such other person" be added to subsection b. The Committee acceded to that request, and accepted the amendment to the section without further discussion.

Comments on the draft of the Code (Comments), prepared by the Department of Public Safety of the Division of Criminal Justice and distributed to the members of the Assembly and Senate Judiciary Committees on July 10, 1974, provide the background to the Judiciary Committee's decision to amend subsection b. Those comments criticized N.J.S.A. 2C:2-6 because, as formulated, it did not make conspiracy alone a basis for vicarious liability. According to the commentary, the provision constituted "an unwise departure from existing law" and "loom[ed] as an obstacle to organized crime prosecutions." (Comments at 38, 41). The comments pointed out that the Pinkerton decision (which this Court relied on in Stein two years thereafter), and Carbone, *460 supra, 10 N.J. 329, 91 A.2d 571, were controlling and rendered a defendant liable for the acts of co-conspirators in furtherance of a conspiracy. Id. at 38-39. Most important, the comments contested the Commission's claim that excluding co-conspirator liability altogether was the only way to limit the scope of liability to fair proportions. Id. at 40-41. The comments noted that Pinkerton provided ample protection because it made co-conspirators liable only for those crimes that were "reasonably foreseen as a necessary or natural consequence" of the particular conspiracy. Id. at 40 (citing Pinkerton, supra, 328 U.S. at 647-48, 66 S.Ct. at 1184, 90 L.Ed. at 1497).

In addition, on January 12, 1977, the Legislative Services Agency of the Law Revision and Legislative Services Commission circulated a memorandum to members of the Senate that stated, "much of Chapter 2 [of the proposed Code] is a restatement of present law." The memorandum did not include subsection 6b(4) among the subsections that constituted "major changes" to existing case law. Its absence is consistent with the description of the common law provided to the Assembly and Senate Judiciary Committees on July 10, 1974. Moreover, this Court rendered its decision in Stein prior to the January 12, 1977, memorandum of the Legislative Services Survey. If any doubt existed about the state of the law regarding co-conspirator liability before 1976, the Court clearly resolved that issue in Stein. Consequently, when on January 12, 1977, the Legislative Services Agency did not include subsection 6b(4) as a major change to the existing common law, the exclusion clearly implied that it understood 6b(4) to be consistent with the holding of Stein.

The majority of the Appellate Division infers from a December 17, 1974, memorandum from the Legislative Services Agency that subsection 6b(4) was added to the Code for mere "technical reasons only." 254 N.J. Super. at 561, 604 A.2d 131. That memorandum had failed to note in the table of contents to Chapter 2 that 2C:2-6 had been changed from the Commission's 1971 text. However, in light of evidence that clearly indicates that subsection 6b(4) was added in response to the specific and expressed concern *461 that the drafters had excluded vicarious responsibility for co-conspirators, we can fairly infer that the absence of a notation next to N.J.S.A. 2C:2-6 was inadvertent.

That commentators do not ascribe a purposeful or knowing intent requirement to N.J.S.A. 2C:2-6b(4) is noteworthy. Robert E. Knowlton, the chairman of the Commission that drafted the Code, observed that co-conspirator liability under the revised Code went beyond the Model Penal Code provision. Robert E. Knowlton, Comments Upon the New Jersey Penal Code, 32 Rutgers L.Rev. 1, 6 (1979). Knowlton criticized the "broad provision" as unnecessary because the accomplice-liability provisions of N.J.S.A. 2C:2-6b would be sufficient to punish leaders of organized-crime gangs. Id. at 7. John M. Cannel, who was present as a representative of the Public Defender's Office on November 14, 1974, when the Assembly Judiciary Committee added subsection 6b(4) to the draft of the Code, believed that when read in isolation, N.J.S.A. 2C:2-6b(4) could be construed to impose a broad scope of liability. Cannel assumed, however, citing the Stein decision, that liability should be limited as "it was ... before the Code to those acts which are the ordinary consequences of the conspirational project." John M. Cannel, New Jersey Criminal Code Annotated, comment 6 N.J.S.A. 2C:2-6 (1992).

Finally, we note that the Legislature passed the Code in 1978, L. 1978, c. 95, two years after the Court had rendered the Stein opinion. The decisional law at the time of the enactment is germane to the meaning to be ascribed to a statute. E.g., Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 350, 94 A.2d 482 (1953). In the absence of a clear manifestation to the contrary, a court may not impute to the Legislature an intention to change established law. State v. Dalglish,