Contents: Chapter Four--Complicity and Vicarious Liability

Justice Stewart's dissenting opinion in Park
Vicarious Liability for Felony Murder
         State v. Sanexay Sophophone
        People v. David A. Cherry
    Vicarious Liability of a Co-Conspirator--the Pinkerton Rule
        Pinkerton v. U.S.
        State of Connecticut v. Jamaal Coltherst

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The following dissenting opinion is associated with U.S. v. Park on page 149.

MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL and MR. JUSTICE POWELL join, dissenting.

Although agreeing with much of what is said in the Court's opinion, I dissent from the opinion and judgment, because the jury instructions in this case were not consistent with the law as the Court today expounds it.

As I understand the Court's opinion, it holds that in order to sustain a conviction under 301 (k) of the Federal Food, Drug, and Cosmetic Act the prosecution must at least show that by reason of an individual's corporate position and responsibilities, he had a duty to use care to maintain the physical integrity of the corporation's food products. A jury may then draw the inference that when the food is found to be in such condition as to violate the statute's prohibitions, that condition was "caused" by a breach of the standard of care imposed upon the responsible official. This is the language of negligence, and I agree with it.

To affirm this conviction, however, the Court must approve the instructions given to the members of the jury who were entrusted with determining whether the respondent was innocent or guilty. Those instructions did not conform to the standards that the Court itself sets out today. 

The trial judge instructed the jury to find Park guilty if it found beyond a reasonable doubt that Park "had a responsible relation to the situation.... The issue is, in this case, whether the Defendant, John R. Park, by virtue of his position in the company, had a position of authority and responsibility in the situation out of which these charges arose." Requiring, as it did, a verdict of guilty upon a finding of "responsibility," this instruction standing alone could have been construed as a direction to convict if the jury found Park "responsible" for the condition in the sense that his position as chief executive officer gave him formal responsibility within the structure of the corporation. But the trial judge went on specifically to caution the jury not to attach such a meaning to his instruction, saying that "the fact that the Defendant is pres[id]ent and is a chief executive officer of the Acme Markets does not require a finding of guilt." "Responsibility" as used by the trial judge therefore had whatever meaning the jury in its unguided discretion chose to give it.

The instructions, therefore, expressed nothing more than a tautology. They told the jury: "You must find the defendant guilty if you find that he is to be held accountable for this adulterated food." In other words: "You must find the defendant guilty if you conclude that he is guilty." The trial judge recognized the infirmities in these instructions, but he reluctantly concluded that he was required to give such a charge under United States v. Dotterweich, ... which, he thought, in declining to define "responsible relation" had declined to specify the minimum standard of liability for criminal guilt....

As the Court today recognizes, the Dotterweich case did not deal with what kind of conduct must be proved to support a finding of criminal guilt under the Act. Dotterweich was concerned, rather, with the statutory definition of "person"--with what kind of corporate employees were even "subject to the criminal provisions of the Act...." The Court held that those employees with "a responsible relation" to the violative transaction or condition were subject to the Act's criminal provisions, but all that the Court had to say with respect to the kind of conduct that can constitute criminal guilt was that the Act "dispenses with the conventional requirement for criminal conduct ... awareness of some wrongdoing." ...

In approving the instructions to the jury in this case--instructions based upon what the Court concedes was a misunderstanding of Dotterweich--the Court approves a conspicuous departure from the long and firmly established division of functions between judge and jury in the administration of criminal justice. As the Court put the matter more than 80 years ago: 

"We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions."...

More recently the Court declared unconstitutional a procedure whereby a jury, having acquitted a defendant of a misdemeanor, was instructed to impose upon him such costs of the prosecution as it deemed appropriate to his degree of "responsibility." ... The state statute under which the procedure was authorized was invalidated because it left "to the jury such broad and unlimited power in imposing costs on acquitted defendants that the jurors must make determinations of the crucial issue upon their own notions of what the law should be instead of what it is." ... And in Jackson v. Denno, ... the Court found unconstitutional a procedure whereby a jury was permitted to decide the question of the voluntariness of a confession along with the question of guilt, in part because that procedure permitted the submergence of a question of law, as to which appellate review was constitutionally required, in the general deliberations of a jury.

These cases no more than embody a principle fundamental to our jurisprudence: that a jury is to decide the facts and apply to them the law as explained by the trial judge. Were it otherwise, trial by jury would be no more rational and no more responsive to the accumulated wisdom of the law than trial by ordeal. It is the function of jury instructions, in short, to establish in any trial the objective standards that a jury is to apply as it performs its own function of finding the facts. ...

 LARSON, J.: This is Sanexay Sophophone's direct appeal of his felony-murder conviction for the death of his co-felon during flight from an aggravated burglary in which both men participated.

The facts are not in dispute. Sophophone and three other individuals ... broke into a house in Emporia. The resident reported the break-in to the police.

Police officers responded to the call, saw four individuals leaving the back of the house, shined a light on the suspects, identified themselves as police officers, and ordered them to stop. The individuals, one being Sophophone, started to run away. One officer ran down Sophophone, handcuffed him, and placed him in a police car.

Other officers arrived to assist in apprehending the other individuals as they were running from the house. An officer chased one of the suspects later identified as Somphone Sysoumphone. Sysoumphone crossed railroad tracks, jumped a fence, and then stopped. The officer approached with his weapon drawn and ordered Sysoumphone to the ground and not to move. Sysoumphone was lying face down but raised up and fired at the officer, who returned fire and killed him. It is not disputed that Sysoumphone was one of the individuals observed by the officers leaving the house that had been burglarized.

Sophophone was charged with conspiracy to commit aggravated burglary, K.S.A. 21-3302; aggravated burglary, K.S.A. 21-3716; obstruction of official duty, K.S.A. 21-3808; and felony murder, K.S.A. 21-3401(b).

Sophophone moved to dismiss the felony-murder charges, contending the complaint was defective because it alleged that he and not the police officer had killed Sysoumphone and further because he was in custody and sitting in the police car when the deceased was killed and therefore not attempting to commit or even fleeing from an inherently dangerous felony. His motion to dismiss was denied by the trial court.

Sophophone was convicted by a jury of all counts. His motion for judgment of acquittal was denied. He was sentenced on all counts. He appeals only his conviction of felony murder....

Sophophone's counsel contends (1) State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988), should be overruled insofar as it allows criminal responsibility for a co-felon's death, (2) he cannot be convicted of felony murder of a co-felon caused by a police officer while he was in custody, and (3) there was not sufficient evidence to support his conviction.

Sophophone's supplemental pro se brief raises contentions 1 and 2 above and further contends that the complaint/information was fatally or jurisdictionally defective.

We consider only the question of law, upon which our review is unlimited, of whether Sophophone can be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful acts of a police officer acting in self-defense in the course and scope of his duties in apprehending the co-felon fleeing from an aggravated burglary.

The applicable provisions of K.S.A. 21-3401 read as follows:

"Murder in the first degree is the killing of a human being committed (b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto."

Aggravated burglary is one of the inherently dangerous felonies as enumerated by K.S.A. 21-3436(10).

Sophophone does not dispute that aggravated burglary is an inherently dangerous felony which given the right circumstances would support a felony-murder charge. His principal argument centers on his being in custody at the time his co-felon was killed by the lawful act of the officer which he contends was a "break in circumstances" sufficient to insulate him from further criminal responsibility.

This "intervening cause" or "break in circumstances" argument has no merit under the facts of this case. We have held in numerous cases that "time, distance, and the causal relationship between the underlying felony and a killing are factors to be considered in determining whether the killing occurs in the commission of the underlying felony and the defendant is therefore subject to the felony-murder rule."...

Based on the uncontroverted evidence in this case, the killing took place during flight from the aggravated burglary,  and it is only because the act which resulted in the killing was a lawful one by a third party that a question of law exists as to whether Sophophone can be convicted of felony murder....

"Although a literal application of K.S.A. 21-3401 would allow any felony to support a charge of felony murder so long as a causal relation exists, we have never allowed the doctrine to be applied so broadly. The purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and it should not be extended beyond the rational function it was designed to serve."...

Our cases are legion in interpreting the felony-murder statute, but we have not previously decided a case where the killing was not by the direct acts of the felon but rather where a co-felon was killed during his flight from the scene of the felony by the lawful acts of a third party (in our case, a law enforcement officer)....

... [W]e look to the prevailing views concerning the applicability of the felony-murder doctrine where the killing has been caused by the acts of a third party. ...

In Dressler, Understanding Criminal Law, § 31.07[4] Killing by a Non-Felon, pp. 471-72 (1987), the question is posed of whether the felony-murder rule should apply when the fatal act is performed by a non-felon. Dressler states:

"This issue has perplexed courts. Two approaches to the question have been considered and applied by the courts.

"[b] The 'Agency' Approach

"The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon....

"The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: 'Your acts are my acts.' It follows that [a co-felon] cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice. It is not possible to impute the acts of the antagonistic party--[the non-felon or] the police officer--to [a co-felon] on the basis of agency.

"[c] The 'Proximate Causation' Approach

"An alternative theory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim's death.

"Pursuant to this rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted."...

... [I]t is not very helpful to review case law from other states because of differences in statutory language; however, the high courts which have considered this precise question are divided between the agency approach and the proximate cause approach.

The leading case adopting the agency approach is Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472 (1958), where the underlying principle of the agency theory is described as follows:

"In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the felony-murder doctrine."

The following statement from Redline is more persuasive for Sophophone:

"In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere question carries with it its own answer." ...

The minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations....

It should be mentioned that some courts have been willing to impose felony-murder liability even where the shooting was by a person other than one of the felons in the so-called "shield" situations where it has been reasoned "that a felon's act of using a victim as a shield in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim." Campbell v. State, 293 Md. 438, 451 n. 3, 444 A.2d 1034 (1982)....

There is language in K.S.A. 21-3205(2) that predicates criminal responsibility to an aider or abettor for "any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended." This wording does not assist us for the killing of the co-felon in our case where it was the lawful act by a law enforcement officer who was in no manner subject to these aider and abettor provisions.

The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices "killed" anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. This does not fall within the language of K.S.A. 21-3205 since the officer committed no crime....

It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of  a law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. There is considerable doubt about the meaning of K.S.A. 21-3401(b) as applied to the facts of this case, and we believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. Cf. State v. Murphy, 19 P.3d 80, ... this day decided (felon may not be convicted of felony murder for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the property thereof).

It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons

 We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed....

ABBOTT, J., dissenting:

The issue facing the court in this case is whether Sophophone may be legally convicted under the felony-murder statute when he did not pull the trigger and where the victim was one of the co-felons. The majority holds that Sophophone cannot be convicted of felony murder. I dissent....

When an issue requires statutory analysis and the statute is unambiguous, we are limited by the wording chosen by the legislature. We are not free to alter the statutory language, regardless of the result. In the present case, the felony-murder statute does not require us to adopt the "agency" theory favored by the majority. Indeed, there is nothing in the statute which establishes an agency approach. There is nothing in K.S.A. 21-3401 which requires us to adopt the agency approach or that requires Sophophone to be the shooter in this case. The facts in this case, in my opinion, satisfy all of the requirements set forth in K.S.A. 21-3401(b).

Moreover, there are sound reasons to adopt the proximate cause approach described in the majority opinion. In State v. Hoang, ... (1988), this court took such an approach, although never referring to it by name. In Hoang, Chief Justice McFarland, writing for the court, discussed at length the requirements of the felony-murder rule in Kansas and stated:

"In felony-murder cases, the elements of malice, deliberation, and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony. In a felony-murder case, evidence of who the triggerman is, is irrelevant and all participants are principals. [Citations omitted.]

"The purpose of the felony-murder doctrine is to deter all those engaged in felonies from killing negligently or accidentally....

"It is argued in the case before us that felony murder applies only to the deaths of 'innocents' rather than co-felons. There is nothing in our statute on which to base such a distinction....

"Dung and Thuong, the decedents herein, were human beings who were killed in the perpetration of a felony.... Defendant was an active participant in the felony and present on the scene during all pertinent times. There is nothing in the statute excluding the killing of the co-felons herein from its application. For this court to exclude the co-felons would constitute judicial amendment of a statute on philosophic rather than legal grounds. This would be highly improper. The legislature has defined felony murder. If this definition is to be amended to exclude the killing of co-felons therefrom under circumstances such as are before us, it is up to the legislature to make such an amendment." ...

It is not this court's prerogative to decide what is and is not felony murder. That is a legislative function.

Hoang was decided in 1988, almost 13 years ago. The legislature has not amended or altered K.S.A. 21-3401 since that time to prevent the felony-murder statute from being used when the victim is a co-felon or where the defendant's actions are not the immediate cause of the death. The majority states that the decision in this case is not inconsistent with the ruling in Hoang. I disagree. The language in Hoang warns of the dangers of judicial reconstruction and statutory revisionism; however, the majority has taken that approach regardless. Although the facts in Hoang are not identical to the facts in this case, the differences are inconsequential. In my opinion, Hoang is still good law and provides ample justification to apply the felony-murder rule to Sophophone.

The majority in this case points out that the majority of states have adopted the agency approach when faced with the death of a co-felon. They acknowledge, however, that because statutes vary significantly from state to state, reference to a "majority" rule and a "minority" rule is meaningless. Indeed, an in-depth analysis of the current case law in this area leads me to the following conclusions: (1) While a majority of states would agree with the majority opinion in this case, the margin is slim; (2) many of the states that have adopted the so-called "agency" approach have done so because the statutory language in their state requires them to do so; and (3) several of the states that have adopted  the "proximate cause" approach have done so because their statutes are silent on the issue, like Kansas.

The following courts have used a proximate cause approach instead of following the agency theory adopted by the majority in this case. Several of the following cases also involve factual situations where the co-felon was killed by a police officer, as is the situation in the present case. See State v. Lopez, ... (Ct. App. Ariz 1993)  (affirming felony-murder conviction where police officer shot co-felon while defendant was already under arrest by using the proximate cause approach as set forth by Arizona statute); State v. Wright, ... (Fla. 1980) (holding that there was nothing in the Florida felony-murder statute which limited application to "innocent persons killed" by the defendant); People v. Dekens, ... (1998) (Illinois follows the proximate cause theory of felony murder); Jenkins v. State, ... (Ind. 2000) (holding that Indiana felony-murder statute does not require the victim to be "innocent" and that defendant  could be convicted of felony murder where robbery victim shot and killed co-felon); Palmer v. State, ... (Ind. 1999) (affirming felony-murder conviction where co-felon was shot by police officer); State v. Baker, ... (Mo. 1980) (affirming conviction where death was a proximate result of the acts of the defendant and his accomplices); State v. Blackmon, ... (Mo. Ct. App. 1979) (affirming felony-murder conviction where victim was shot by an off-duty police officer); State v. Burton (NJ 1974) (affirming felony-murder conviction where police killed co-felon during commission of a robbery and where statutory language indicated a preference for the proximate cause approach); In re Leon, ... (RI. 1980) (taking a proximate cause approach and holding that defendant could be convicted of felony murder where the victim was a co-felon); State v. Oimen, ... (WI 1994) (adopting proximate cause approach where co-felon was killed by burglary victim).

Some courts have been forced to take an agency approach because of the statutory language contained within their felony-murder statutes. See Weick v. State, ... (Del. 1980) (reversing second-degree murder conviction where victim killed co-felon because statute requires that "he, with criminal negligence, causes the death of another person"); State v. Jones, ... (Okla. Crim. 1993) (taking an agency approach because statute provides that the person committing the felony must "take the life of a human being"); State v. Hansen, ... 427 (Utah 1986) (holding that state law precluded second-degree felony-murder conviction where co-felon is killed because language in statute requires the death to be "other than a party" to the crime).

As noted in Hoang, references to cases from other jurisdictions, regardless of the "majority" or "minority" rule, is unnecessary because the statutory language, if unambiguous, should control the outcome....

In my opinion, our statute is unambiguous and simply does not require the defendant to be the direct cause of the victim's death, nor does it limit application of the felony-murder rule to the death of "innocents."

In People v. Lowery, ... (1997), the Illinois Supreme Court discussed the public policy reasons justifying application of a proximate cause approach, stating:

"It is equally consistent with reason and sound public policy to hold that when a felon's attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions. [Citations omitted.]" 178 Ill. 2d at 467.

In Sheckles v. State, ... (1997), the Indiana Court of Appeals opined:

"[A] person who commits or attempts to commit one of the offenses designated in the felony-murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have ... foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death at the hands of a nonparticipant in the felony, and where death in fact occurs as was foreseeable, the creation of such a dangerous situation is an intermediary, secondary, or medium in effecting or bringing about the death of the victim." ...

Likewise, the Supreme Court of New Jersey discussed the historical justification for application of the proximate cause rule in felony-murder cases in State v. Martin, ...(1990), stating:

"More recently, felony murder has been viewed not as a crime of transferred intent, but as one of absolute or strict liability. Whether the offense is viewed as a crime of transferred intent or as one of absolute liability, the continuing justification for the felony-murder rule is that in some circumstances one who commits a felony should be liable for a resulting, albeit unintended, death. Conversely, other deaths are so remotely related to the underlying felony that the actor should not be held culpable for them. Our task is to ascertain the circumstances in which the Legislature has decided that one who commits a felony should also be culpable for a resulting death.

"The historical justification for the rule is that it serves as a general deterrent against the commission of violent crimes. [Citation omitted.] The rationale is that if potential felons realize that they will be culpable as murderers for a death that occurs during the commission of a felony, they will be less likely to commit the felony. From this perspective, the imposition of strict liability without regard to the intent to kill serves to deter the commission of serious crimes." ...

Here, Sophophone set in motion acts which would have resulted in the death or serious injury of a law enforcement officer had it not been for the highly alert law enforcement officer. This set of events could have very easily resulted in the death of a law enforcement officer, and in my opinion this is exactly the type of case the legislature had in mind when it adopted the felony-murder rule.

The majority has opened a Pandora's box and left the law grossly unsettled. It does not take much imagination to see a number of situations where a death is going to result from an inherently dangerous felony and the majority's opinion is going to prevent the accused from being charged with felony murder.

If there is to be a change in the law, it should be by the legislature and not by this court adopting a statutory scheme set forth by the legislatures of other states. I would continue to follow the proximate cause theory of liability for felony murder, which holds that criminal liability attaches for any death proximately resulting from the unlawful activity notwithstanding the fact that the killing was by one resisting the crime.

I would affirm the conviction based upon the statutory language found in K.S.A. 21-3401, the decision in Hoang, and the cases cited from other jurisdictions.

MCFARLAND, C.J., and DAVIS, J., join in the foregoing dissenting opinion.

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PER CURIAM.

 On December 11, 1999, defendants broke into a house for the purpose of robbing it. Inside the house, they encountered the victim, whom they held down and beat with their fists and a piece of a hockey stick that Burton had brought with him. While one or two defendants guarded the victim, the other defendant or defendants ransacked the house and discovered knives and guns owned by the victim. At one point, when the victim attempted to fight defendants, he was beaten and stabbed several times with a knife. Finally, the victim was shot in the head from close range and died. The night of the murder, Barron was seen covered in blood and acting incoherently and Burton was seen wearing bloodstained clothes and carrying a gun and a knife. Days after the murder, defendants separately turned themselves in to police and admitted being part of the robbery. All three defendants admitted to going to the house for the purpose of robbing it, but had conflicting stories about who beat, stabbed, and shot the victim. None of defendants admitted to personally stabbing or shooting the victim or having an intent to kill the night of the murder. DNA tests revealed that items linked to each defendant were covered in the victim's blood.

II. Analysis

A. Sufficiency of the Evidence

Cherry and Barron argue that the prosecution did not introduce sufficient evidence to support their felony murder convictions. Due process requires that the prosecution introduce sufficient evidence that could justify a trier of fact in concluding that the defendant is guilty beyond a reasonable doubt.... Therefore, by arguing that the evidence was insufficient to sustain their convictions, defendants invoke their constitutional rights to due process of law. ... Review of this constitutional issue is de novo....

When reviewing a claim of insufficient evidence, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.... A reviewing court must make credibility choices in support of the jury verdict. ... The prosecution need not negate every reasonable theory consistent with innocence, but need only convince the jury of the defendant's guilt in the face of whatever contradictory evidence the defendant may provide.... All conflicts in the evidence must be resolved in favor of the prosecution. ...

Cherry's Felony Murder Conviction

At trial, the prosecution argued that Cherry committed felony murder as a principal or an aider and abettor.

The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including (first-degree home invasion)]....
 
To convict a defendant of felony murder as an aider and abettor, the prosecution must prove:

(1) the  crime charged was committed by defendant or some other person, (2) defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that he gave the aid and encouragement. An aider and abettor must have the same requisite intent as that required of a principal. Thus, "the  prosecutor must show that the aider and abettor had the intent to commit not only the underlying felony, but also to kill or cause great bodily harm, or had wantonly and willfully disregarded the likelihood of the natural tendency of this behavior to cause death or great bodily harm." ...

Cherry does not dispute that there was sufficient evidence to convict him of first-degree home invasion. He also does not dispute that there was sufficient evidence to show that one of the other defendants committed felony murder by killing the victim. Instead, Cherry argues that there was insufficient evidence to support his conviction for felony murder because there was no evidence that he had the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result. We disagree. "The facts and circumstances of the killing may give rise to an inference of malice. A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm."...

In situations involving the vicarious liability of co-felons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for an unforeseen death that did not result from actions agreed upon by the participants....
 
In the present case, Cherry admitted to police that he went to the victim's house with the intention of breaking in and robbing it. Cherry knew that Burton was carrying a broken hockey stick and knew that there was a possibility that the victim was home and would have to be subdued. When defendants went inside the house, the victim hit Cherry on the head and Cherry hit him back. Cherry then fell on the victim's legs and held him down while either Burton or Barron hit the victim with the hockey stick over and over again on his head, ribs, shoulders, and upper body. During the next forty-five minutes, Cherry continued to hold the victim down while Burton and Barron intermittently beat the victim. As they beat the victim, somebody told him that he would be okay if he told them the location of his safe or the combination to his safe. The victim pleaded for his life, but refused to give defendants any information. At one point, Cherry saw Burton with a gun and heard Burton tell Barron to get a gun to back him up. Finally, the victim attempted to fight back against Cherry. Cherry tackled the victim and punched him a few times. Cherry slid down on the victim's body and Burton stabbed the victim three times, once in the neck. Later, as Cherry was leaving, he heard a gunshot and saw Burton standing over the victim with a gun in his hand. A pathology expert testified that, even if the victim had not been shot, he would have died of blood loss from the other wounds without medical attention.

The essential question is whether Cherry participated in the home invasion with knowledge that Burton intended to kill or cause great bodily harm so as to permit a rational trier of fact to conclude that Cherry acted with wanton and willful disregard sufficient to support a finding of malice.... [T]his Court [has] determined that a defendant's knowledge that his co-felon was armed during the commission of a robbery is enough for a rational trier of fact to find that the defendant, as an aider and abettor, participated in the crime with knowledge of the principal's intent to cause great bodily harm. In the present case, Cherry actually held the victim down while he was beaten with a hockey stick and tackled the victim just before Burton stabbed him with a knife. Cherry saw Burton carrying a gun in the house and heard the gunshot. Under these circumstances, we conclude that Cherry knew of Burton or Barron's intent to at least cause great bodily harm. Therefore, a rational factfinder could find that Cherry was acting with wanton and willful disregard for the likelihood that the natural tendency of this behavior would cause death or great bodily harm. The evidence, viewed in a light most favorable to the prosecution, was sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that Cherry was guilty of felony murder…. 

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Mr. Justice DOUGLAS delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two-year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.... The case is here on a petition for a writ of certiorari which we granted, ... because one of the questions presented involved a conflict between the decision below and United States v. Sall, ... decided by the Circuit Court of Appeals for the Third Circuit.

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two-year penalty provided by the conspiracy statute ... could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States...

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime.... Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime.... But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy... has little vitality in this country. ... It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established.... A conviction for the conspiracy may be had though the substantive offense was completed. ... And the plea of double jeopardy is no defense to a conviction for both offenses.... It is only an identity of offenses which is fatal.... A conspiracy is a partnership in crime.... It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, ... 

"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing,injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered." ...

Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, ... "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.... It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained, ... although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed, petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it. Daniel relies on United States v. Sall.... That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary. 

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel, which is necessary to establish his withdrawal from it. Hyde v. United States.... As stated in that case, 'having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose, he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished, he is still offending. And we think, consciously offending ... offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence.' ... And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that 'an overt act of one partner may be the act of all without  any new agreement specifically directed to that act.'... Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective.... A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy.... Yet all members are responsible, though only one did the mailing. ... The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. ... The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule, which holds responsible one who counsels, procures, or commands another to commit a crime, is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under 37 of the Criminal Code, 18 U.S.C. 88, 18 U.S.C.A. 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

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 [328 U.S. 640, 648] scope of the unlawful project, or was merely a pat of the ramifications 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 this case. 

AFFIRMED.

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SULLIVAN, C. J. ...

FACTS

The jury reasonably could have found the following facts. On the morning of October 15, 1999, the defendant was released from the Manson Youth Institute, a correctional institution located in Cheshire, where he had been incarcerated for violating probation after having been convicted on charges of assault in the third degree. His mother and his grandfather picked him up at the institute and drove him to their house on Plain Drive in East Hartford. At some point during the day, a friend of the defendant, Jamarie Cole, came by to visit. The defendant and Cole were sitting outside together when, at about 3 p.m., another of the defendant's friends, Carl Johnson, came up to them. Johnson indicated that he was going to "do something" that night. The defendant understood Johnson to mean that he was going to rob someone. Johnson told the defendant that he would meet him later and left.

At approximately 6:30 p.m., Johnson returned to the defendant's house. Johnson was riding a mountain bike and carrying a bike for the defendant to ride. The defendant, seeing that Johnson was dressed entirely in black, went to his room and changed into black clothes. Johnson and the defendant  then rode the bicycles to a parking lot near the defendant's house, where the defendant asked Johnson to show him the gun that Johnson previously had indicated he would be carrying. Johnson showed him a black .22 caliber pistol and let him hold it. They then proceeded to an exotic dance club known as Kahoots, located on Main Street in East Hartford, arriving at approximately 7:30 p.m. They parked the bicycles in the bushes behind the club and then walked around the parking lot to identify cars that they might want to carjack.

The defendant and Johnson previously had discussed how they would commit the carjacking. Their plan was to approach the first person who came out of the club, at which point Johnson would point the gun at the person's head and demand the car keys. The defendant would take the keys, and the defendant and Johnson would force the person into the car. They would then drive to a place far away from any telephones or cars and leave the person there. Johnson told the defendant that he had rope and tape in his backpack if they needed to restrain the person.

The defendant and Johnson identified approximately three desirable cars in the Kahoots parking lot, but they decided to leave because it was early and they knew that people would not be leaving the club until later. At that point they rode down Main Street to the Triple A Diner, where they continued to look for cars to carjack. They determined that the diner was too busy for them to commit a robbery without being seen. They then rode their bicycles across the street to Dunkin Donuts, where they had seen a Lexus automobile in the parking lot. They hid in the bushes near the car but left after waiting for about one-half hour for the owner of the car to come out.

The defendant and Johnson then returned to Kahoots, arriving at approximately 9 p.m. They hid their bicycles behind the Rent-A-Wreck building located next to the club. They saw a 1999 Toyota 4Runner parked in the Rent-A-Wreck parking lot and waited there for the driver to return so that they could carjack the car. While they were waiting, a black Honda Accord pulled up behind Rent-A-Wreck. The driver, later identified as Kyle Holden (victim), exited the car and went into Kahoots. Some time later, when the victim came out of Kahoots and headed toward his car, the defendant and Johnson ran up to him. Johnson pointed his gun at the victim's head and demanded the keys to the car. The defendant took them. Johnson then gave the gun to the defendant and took the keys himself. Johnson and the defendant forced the victim into the backseat of the car, where the defendant joined him. They then drove to an automatic teller machine (ATM) located next to the Triple A Diner. The defendant took the victim's wallet, removed his ATM card and demanded the victim's personal identification number. The defendant than gave the card to Johnson, who used it to withdraw money from the ATM.

Johnson then drove to a nearby entrance ramp for Interstate 84, where he pulled over to the side of the road. The defendant and Johnson got out of the car, and the defendant gave the gun to Johnson. Johnson then ordered the victim to get out of the car. The victim went to the far side of the guardrail, where he sat down. The defendant removed the victim's belongings from the car and then got back into the car's passenger side seat. At that point, the defendant saw Johnson shoot the victim at point blank range in the back of the head.... The victim died within seconds. Johnson then got back into the car. The defendant asked him why he had shot the victim, and Johnson said that he did not want any witnesses. Johnson had been wearing a pair of black gloves, which he placed in the car's glove compartment.

Over the next eight days, the defendant and Johnson continued to use the car. Bank transaction records showed that, on October 16, 1999, the victim's ATM card was used at an ATM machine located on Park Avenue in Bloomfield to make three separate withdrawals from the victim's checking account, for a total of $ 280. A surveillance camera at that ATM machine photographed Johnson and the defendant in the victim's car as they made the withdrawals.

Meanwhile, on October 16, 1999, East Hartford police officer Gerard Scagliola was on patrol in East Hartford when he noticed the victim's car being operated in what he considered to be a suspicious manner. He entered the car's license plate number into his cruiser's computerized search system, which revealed no irregularities. On October 19, 1999, the Avon police department received a report that the victim, who had been a resident of Avon, was missing. During their investigation, the Avon police learned of Scagliola's computer inquiry and focused their search for the victim and his car on the area of East Hartford where Scagliola had seen the car. On October 24, 1999, Sergeant Robert Whitty of the Avon police department was patrolling in East Hartford in connection with the investigation when he saw a black Honda matching the description of the victim's car. Whitty, who was in an unmarked car, followed the Honda and used a cell phone to call the East Hartford police department to request additional police officers. The Honda pulled into a parking lot on Plain Drive. Whitty pulled up behind it, exited his car and identified himself as a police officer. Four individuals, ultimately identified as Johnson, the defendant, Rashad Smith and Damion Kelly, emerged from the Honda. Whitty drew his service revolver and ordered the four individuals to lie in a prone position behind the Honda. The East Hartford police arrived within approximately one minute and arrested the four individuals.

In the hours following his arrest, the defendant gave the police several inconsistent statements concerning his involvement in the crimes. At trial he testified and denied any involvement. He claimed that the police had fabricated the statements and that he had signed them without reading them.

After a jury trial, the defendant was convicted of capital felony, murder, felony murder, kidnapping in the first degree, robbery in the first degree, robbery  in the second degree, larceny in the first degree, conspiracy to commit kidnapping in the first degree, and larceny in the fourth degree. The trial court merged the convictions of capital felony, murder, felony murder and kidnapping in the first degree and imposed a sentence of life imprisonment without the possibility of release on the capital felony count, twenty years imprisonment on the count of robbery in the first degree, ten years imprisonment on the count of robbery in the second degree, twenty years imprisonment on the count of larceny in the first degree, twenty years imprisonment on the count of conspiracy to commit kidnapping in the first degree, and one year imprisonment on the count of larceny in the fourth degree, all to be served consecutively to the sentence of life imprisonment, for a total effective sentence of life imprisonment without the possibility of release followed by seventy-one years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as required.

CONVICTION OF MURDER UNDER PINKERTON

The defendant claims that the trial court's instruction to the jury that it could convict the defendant for murder under the Pinkerton doctrine was improper because (1) the application of Pinkerton has been limited, as a matter of state criminal law, to cases where the defendant had the intent to commit the substantive crime with which he is charged and (2) it violated the due process clause of the fourteenth amendment because it relieved the state of its burden of proving every element of the crime.... Specifically, he argues that the instructions allowed the jury to convict him of intentional murder without finding that he had intended to kill the victim. We reject this claim....

We begin our analysis of the defendant's claim with a review of our case law applying the Pinkerton doctrine. This court first explicitly adopted the Pinkerton principle of vicarious liability for purposes of our state criminal law in State v. Walton ... (1993). Under the Pinkerton doctrine, which, as of the date of our decision in Walton, was "a recognized part of federal criminal conspiracy jurisprudence"; ... "a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy." ... The rationale for the principle is that, when "the conspirator [has] played a necessary part in setting in motion a discrete course of criminal conduct, he should be held responsible, within appropriate limits, for the crimes committed as a natural and probable result of that course of conduct." ...

We concluded in Walton that the Pinkerton principle was applicable in state criminal cases, reasoning, "first, that Pinkerton liability is not inconsistent with our penal code and, therefore, that we were not prohibited from recognizing that theory of criminal liability as a matter of state common law.... Without foreclosing the use of the Pinkerton doctrine in other circumstances, we then concluded that application of the doctrine was appropriate in Walton, in which  the defendant was a leader of the conspiracy, the offense for which vicarious liability was sought to be imposed was an object of the conspiracy and the offense was proved by one or more of the overt acts alleged in support of the conspiracy charge." ...

In State v. Diaz, 237 Conn. 518, we were required to "decide whether to extend the principle of vicarious liability that we adopted in Walton to a case in which not all of [the three Walton] conditions have been met, a question that we expressly reserved in Walton." ... In Diaz, the defendant had been convicted of, inter alia, murder under the Pinkerton doctrine and conspiracy to commit murder.... The evidence showed that the defendant, along with several other individuals, had fired multiple gunshots into a motor vehicle occupied by the victim and three others.... The victim was struck and killed by a single bullet.... The defendant claimed on appeal that the court's instruction under the Pinkerton doctrine had been improper because, among other reasons, it was broader than the limited version of the doctrine recognized in Walton.... This court acknowledged that the state had not proved that the defendant was the leader of the conspiracy to ambush the vehicle and its occupants and, thus, had not established the  first condition for Pinkerton liability set forth in Walton.... We noted, however, that "the evidence reasonably established that the defendant was a fully engaged member of the conspiracy who had actively participated in the shooting and that he, along with his coconspirators, intended to kill one or more of the vehicle's passengers."... We concluded that "where ... the defendant was a full partner in the illicit venture and the co-conspirator conduct for which the state has sought to hold him responsible was integral to the achievement of the conspiracy's objectives, the defendant cannot reasonably complain that it is unfair to hold him vicariously liable, under the Pinkerton doctrine, for such criminal conduct." ... We further concluded  that "Pinkerton liability may be imposed even if none of the three Walton conditions is present."...

We also acknowledged, however, that "there may be occasions when it would be unreasonable to hold a defendant criminally liable for offenses committed by his co-conspirators even though the state has demonstrated technical compliance with the Pinkerton rule. ... For example, a factual scenario may be envisioned in which the nexus between the defendant's role in the conspiracy and the illegal conduct of a co-conspirator is so attenuated or remote, notwithstanding the fact that the latter's actions were a natural consequence of the unlawful agreement, that it would be unjust to hold the defendant responsible for the criminal conduct of his co-conspirator. In such a case, a Pinkerton charge would not be appropriate." ...

The defendant argues that Diaz stands for the proposition that, as a matter of state policy, Pinkerton liability may be imposed only where the state has established that the defendant had the level of intent required by the substantive offense with which he is charged. We disagree. The defendant in Diaz, in addition to claiming that the application of Pinkerton in that case was an improper extension of Walton, had challenged the trial court's Pinkerton instruction on the ground that "Pinkerton liability is inconsistent with our penal code because it allows a jury to convict a defendant of murder even though the defendant did not himself have the specific intent to cause the death of another as required under § 53a-54a (a)." ... He argued that to apply Pinkerton under such circumstances impermissibly would intrude upon the felony murder statute, § 53a-54c, which, he argued, "sets forth an exclusive list of conduct for which a defendant may be convicted of murder without having the intent to kill as required under § 53a-54a (a)."... We concluded that Pinkerton did not intrude upon the felony murder statute because, while a defendant may be convicted of felony murder even if neither he nor his confederates had any intent to kill, "under the Pinkerton doctrine ... a defendant may not be convicted of murder unless one of his criminal associates, acting foreseeably and in furtherance of the conspiracy, caused the victim's death with the intent to do so." ... Thus, in Diaz, we clearly recognized that, under Pinkerton, a co-conspirator's intent to kill may be imputed to a defendant who does not share that intent, provided, of course, that the nexus between the defendant's role and his co-conspirator's conduct was not "so attenuated or remote ... that it would be unjust to hold the defendant responsible...." ...

The defendant in the present case also claims that the application of Pinkerton under the facts of this case violates due process because it relieves the state of the burden of proving an element of the crime, namely, intent to kill. Again, we disagree. The defendant does not dispute the notion that Pinkerton constitutionally may reach conduct in which the defendant did not engage. We fail to see why a constitutional flaw appears when Pinkerton applies to the intent that accompanies that conduct. Both the intent and the conduct are essential elements of the crime and are subject to the principles of In re Winship, 397 U.S. 358 ... (1970), that due process requires the state to prove every element of the offense charged beyond a reasonable doubt. The United States Supreme Court in Pinkerton itself acknowledged that Pinkerton rests on the same principles as those governing accessory liability, which allow conduct to be imputed to a defendant. Our research has uncovered no case in which any court has suggested that accessory liability offends due process. We fail to see, therefore, why the imputation of intent under Pinkerton would do so.

We note that the only other case that we have been able to discover that has directly addressed the issue raised by the defendant in the present case reached the same conclusion. In United States v. Alvarez, 755 F.2d 830 (11th Cir.), ... the United States Court of Appeals for the Eleventh Circuit concluded that the intent to commit a substantive crime committed by co-conspirators may be imputed to a defendant under Pinkerton. That case involved an undercover sting operation conducted by federal drug agents. In the words of the Court of Appeals, the sting operation "turned into tragedy when a shoot-out erupted between the dealers and two [of the federal agents]. During the shoot-out, one of the ... agents was killed and the other agent, along with two of the cocaine dealers, was seriously wounded."... Nine defendants were convicted on various federal charges in connection with the incident. All of the defendants were convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846.... The two shooters were convicted of first-degree murder of a federal agent in violation of 18 U.S.C. §§ 1111 (a) ... and 1114, ... and three other defendants were convicted, under the Pinkerton doctrine, of second-degree murder of a federal agent in violation of 18 U.S.C. §§ 1111 (a) and 1114.... Those three defendants appealed on the ground that they could not be convicted under the Pinkerton doctrine when the murder was not an intended purpose of the conspiracy....

The Court of Appeals noted that it "[had] not found, nor has the government cited, any authority for the proposition that all conspirators, regardless of individual culpability, may be held responsible under Pinkerton for reasonably foreseeable but originally unintended substantive crimes." ... It also took note of "the potential due process limitations on the Pinkerton  doctrine in cases involving attenuated relationships between the conspirator and the substantive crime." ... The court then pointed out, however, that the evidence established that none of the three defendants had been a minor participant in the drug conspiracy and that all had been aware that deadly force might be used to prevent apprehension by the federal officers.... The court concluded that "the individual culpability of [the three defendants was] sufficient to support their murder convictions under Pinkerton, despite the fact that the murder was not within the originally intended scope of the conspiracy. In addition, based on the same evidence, we conclude that the relationship between the three [defendants] and the murder was not so attenuated as to run afoul of the potential due process limitations on the Pinkerton doctrine."... Accordingly, the court concluded that the trial court properly had instructed the jury that it could impose Pinkerton liability for the murder of the federal officer on the three defendants, even though the evidence had not established that they had committed the murder or shared the shooters' intent to kill....

It is clear, ... that the trial court's instruction allowed the jury to impute the shooters' intent to kill to the Pinkerton defendants, and that the Court of Appeals found that instruction to be proper.

We conclude that the Pinkerton doctrine constitutionally may be, and, as a matter of state policy should be, applied in cases in which the defendant did not have the level of intent required by the substantive offense with which he was charged.... The rationale for the doctrine is to deter collective criminal agreement and to protect the public from its inherent dangers by holding conspirators responsible for the natural and probable--not just the intended--results of their conspiracy. ... This court previously has recognized that "combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise."... In other words, one natural and probable result of a criminal conspiracy is the commission of originally unintended crimes. When the defendant has "played a necessary part in setting in motion a discrete course of criminal conduct"; ... he cannot reasonably complain that it is unfair to hold him vicariously liable, under the Pinkerton doctrine, for the natural and probable results of that conduct that, although he did not intend, he should have foreseen. The defendant in this case makes no claim that the nexus between his involvement in the conspiracy and Johnson's murder of the victim was "so attenuated or remote ... that it would be unjust to hold the defendant responsible for the criminal conduct of his coconspirator."... Accordingly, we conclude that the trial court properly instructed the jury that it could convict the defendant of intentional murder under the Pinkerton doctrine....

The judgment is affirmed....