5.3: Accessories (Hindering Prosecution)

At common law, a defendant who helped plan the crime but was not present at the scene when the principal committed the crime was an accessory before the fact. As you now know, an accessory before the fact is an accomplice under modern criminal codes. The person who helps plan the offense is held criminally liable to the same extent as the principal.

The person who helped the principal avoid detection or escape capture after committing the offense was an accessory after the fact. The crime of accessory after the fact contained four elements: (1) commission of a completed felony – no liability attached for a failed felony; (2) knowledge – the accessory must have possessed knowledge that the principal had committed a felony; (3) affirmative act – the accessory was required to take an affirmative step to hinder the principal’s arrest; and (4) criminal intent – the accessory was required to intend to aid the principal (accidental acts were insufficient).

The law now treats the accessory after the fact as an accessory, which is a separate and distinct offense. In Alaska, the crime is called hindering prosecution. AS 11.56.770. Hindering prosecution criminalizes the act of “rendering assistance” to a person who has committed the crime. It is a dual intent crime. First, the defendant must be aware that the perpetrator has committed a crime, and second, the person must intend to hinder the apprehension, prosecution, conviction, or punishment of that person. Rendering assistance covers a large swath of conduct, including concealing a person, warning the person of impending apprehension, destroying evidence, proving aid, money, transportation, weapons, disguises, or hiding proceeds of a crime.

The difference between an accomplice and an accessory is important. An accomplice is responsible for the same offense the principal commits. An accessory, on the other hand, is guilty of a separate crime that is generally a misdemeanor or a low-level felony.

Noblit v. State, 808 P.2d 280 (Alaska App. 1991)

Alaska distinguishes between first- and second-degree hindering prosecution based on whether the principal’s crime was a felony or misdemeanor. If a person assists a perpetrator who has committed a felony, the person is guilty of first-degree hindering prosecution, a class C felony. AS 11.56.770. If the person assists a perpetrator who has committed a misdemeanor, the person is guilty of second-degree hindering prosecution, a class B misdemeanor. AS 11.56.780. But what if the person assisting a perpetrator does not know whether the perpetrator committed a felony or misdemeanor? What crime has been committed, if any? Noblit answers this question.

808 P.2d 280
Court of Appeals of Alaska.
Ken NOBLIT, Appellant,
v.
STATE of Alaska, Appellee.
March 29, 1991.

OPINION
BRYNER, Chief Judge.

Ken Noblit was convicted, after a jury trial, of hindering prosecution in the first degree. Superior Court Judge Niesje J. Steinkruger sentenced Noblit to a term of three years with one and one-half years suspended. Noblit appeals, contending that the trial court failed to instruct the jury properly on the culpable mental state for his offense. We affirm.

On August 19, 1988, Noblit’s housemate, Phillip Baird stabbed and killed a man—apparently while engaging in sadomasochistic sexual activities. The homicide occurred in the victim’s apartment and was not discovered until the following day, August 20. Noblit played no part in the killing and was not present when it happened. During the ensuing weeks, however, he engaged in a variety of acts that hindered police efforts to locate and apprehend Baird. Baird was ultimately arrested on September 15, 1988, at the trailer he shared with Noblit. He was eventually convicted of murder in the second degree.

The state charged Noblit with hindering prosecution in the first degree, in violation of AS 11.56.770(a):

(a) A person commits the crime of hindering prosecution in the first degree if the person renders assistance to a person who has committed a crime punishable as a felony with intent to

(1) hinder the apprehension, prosecution, conviction, or punishment of that person; or

(2) assist that person in profiting or benefiting from the commission of the crime.

At the conclusion of Noblit’s trial, the superior court instructed the jury, in relevant part, that the state was required to prove that Noblit “knowingly rendered assistance to a person who had committed a crime punishable as a felony,” and that, in doing so, he “intended to hinder the apprehension, prosecution, conviction, or punishment of that person.” The court rejected, however, Noblit’s request to further instruct the jury that Noblit was required to have acted knowingly or recklessly with respect to the fact that Baird’s crime was “punishable as a felony.” While specifying that the state was required to prove that Baird’s crime had in fact been a felony, the court instructed that “it is not required that the defendant knew the crime was a felony.”

On appeal, Noblit challenges the validity of the trial court’s instructions on the elements of the offense. In addressing Noblit’s argument, we begin by considering Alaska’s hindering prosecution statutes.

Under Alaska law, the distinction between hindering prosecution in the first and second degrees hinges on the seriousness of the crime committed by the person whose prosecution is hindered. Hindering prosecution in the first degree, a class C felony, occurs when a “person renders assistance to a person who has committed a crime punishable as a felony….”. Hindering prosecution in the second degree, a class B misdemeanor, occurs when a “person renders assistance to another who has committed a crime punishable by imprisonment for more than 90 days….” The first- and second-degree offenses are identical in all respects other than the seriousness of the underlying crime. For both offenses the defendant must engage in conduct that “renders assistance” to a person who has actually committed a crime. Both offenses are specific intent crimes: the state must prove, in relevant part, that the defendant acted “with intent to hinder the apprehension, prosecution, conviction, or punishment of that person; or assist that person in profiting or benefiting from the commission of the crime.” This requirement of a specific intent to hinder the prosecution of a person who has committed a crime necessarily presupposes the defendant’s knowledge that the underlying crime has been committed.

To prove its charge of hindering prosecution in the first degree in Noblit’s case, it was thus incumbent on the state to establish that Phillip Baird had committed a homicide, that his crime was punishable as a felony, and that Noblit rendered assistance to Baird after he had committed a crime. The state was further required to show that Noblit assisted Baird with knowledge of Baird’s criminal conduct and with the specific intent to hinder Baird’s prosecution.

The jury instructions in this case adequately recited these statutory elements. Noblit nevertheless insists that the instructions were flawed because they omitted a further element. According to Noblit, the trial court should have told the jury that it could not convict for hindering prosecution in the first degree unless it found that Noblit actually knew or recklessly disregarded that Baird’s illegal conduct was punishable as a felony. While Noblit concedes that this element does not appear in the statutory definition of hindering prosecution in the first degree, he contends that it should be added by judicial interpretation.

We disagree. In enacting our hindering prosecution statutes, the Alaska legislature unequivocally expressed the intent to dispense with any requirement of awareness as to the legal classification of the crime committed by the assisted person:

To commit either degree of hindering prosecution, the defendant must act with an “intent to hinder the apprehension, prosecution, conviction or punishment” of a person or to assist a person “in profiting or benefiting from the crime.” The first-degree offense, a class C felony, requires that a felon be aided. The defendant is not required to know that the crime committed by the person he aided was a felony. Strict liability is applied to this element.

Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 47 at 86–87, 1978 Senate Journal 1399.

The commentary to Model Penal Code § 242.3 further undercuts Noblit’s culpable mental state argument. Section 242.3 is generally similar to Alaska’s hindering prosecution statutes. Like the Alaska statutes, it hinges the seriousness of a hindering prosecution charge on the seriousness of the underlying crime. The commentary to Model Penal Code § 242.3 highlights the difference between the defendant’s awareness of the conduct constituting the underlying crime and actual knowledge of the legal classification that would apply to that conduct:

Section 242.3 … limits the heavier sanction based on the seriousness of the principal offense to circumstances in which the aider is culpable with respect to that consideration. Of course, it is not necessary that the defendant know the law of the crime for which the other is sought. For this reason the grading provision for this offense requires only that the aider know that the conduct charged or liable to be charged against the other person is of the sort proscribed by one of the more serious degrees of felony.
Model Penal Code § 242.3, commentary at 239 (1980) (footnote omitted).

At least one other jurisdiction has specifically considered and rejected a culpable mental state argument similar to Noblit’s. […] In short, Noblit’s culpable mental state argument finds no support in the legislative history of Alaska’s hindering prosecution statutes, in the Model Penal Code, or in the decisions of other jurisdictions.

[…]

Under the circumstances, the following passage from the Alaska Supreme Court’s decision in Alex v. State, 484 P.2d 677, 681–82 (Alaska 1971), is particularly apt:

[A]s applied to crimes generally, what is imperative, is that an accused’s act be other than simply inadvertent or neglectful. What is essential is not an awareness that a given conduct is a “wrongdoing” in the sense that it is proscribed by law, but rather, that an awareness that one is committing the specific acts which are defined by law as a “wrongdoing.” It is, however, no defense that one was not aware that his acts were wrong in the sense that they were proscribed by law. So long as one acts intentionally, with cognizance of his behavior, he acts with the requisite awareness of wrongdoing.

[…]

The judgment is AFFIRMED.

Compounding

A related but rarely prosecuted crime is compounding. Compounding prohibits agreements to refuse to assist law enforcement. At common law, someone who committed the crime of compounding was guilty as an accessory. Under modern criminal codes, compounding is a separate and distinct offense.

To be clear, compounding and hindering are close cousins. Whereas hindering prosecution occurs if a person “renders assistance” to a perpetrator, compounding occurs if a person offers or receives a benefit to conceal an offense, withhold evidence of an offense, or refrain from assisting law enforcement. AS 11.56.790. The gravamen of compounding is the agreement to avoid law enforcement involvement. The agreement must include consideration – that is, it must include a benefit offered or accepted in exchange for withholding or concealing information about an offense. See commentary, Senate Journal Supp. No. 47, at 87 (June 12, 1978). The crime punishes both the receiver and giver of the consideration equally. Both are guilty of a class A misdemeanor. AS 11.56.790(b).

Although a person is under no obligation to assist law enforcement, and may always stand mute about their knowledge of a criminal offense, a person may not enter into an agreement to remain quiet in an effort to secure a benefit. Likewise, a person may not pervert public justice by seeking to buy or bargain their way out of criminal liability.

Not all agreements to settle a criminal case constitute compounding, however. A plea bargain – an agreement between the government and a defendant to resolve a criminal case without a trial – is not compounding. See e.g., Kansas v. Davis, 26 P.3d 681 (Kan. 2001). Also, the law specifically allows for a crime victim and a criminal defendant to civilly compromise a criminal matter in certain situations.

Civil Compromise

A defendant and a victim may agree to civilly compromise a criminal prosecution in matters where the victim would normally have a civil remedy. AS 12.45.120. This typically occurs in cases of simple (misdemeanor) assaults or vandalism (criminal mischief). In the eyes of the Legislature, such matters are appropriately resolved outside of the criminal justice system given the minor nature of the offense and the existence of a viable civil remedy. Both the crime victim and criminal defendant can adequately protect their respective interests while at the same time adjudicating the minor societal interests involved.

For example, assume Jim and Bob are neighbors and have an argument over who is responsible for damage to their mutually shared fence. In a fit of rage, Jim punches Bob in the nose. Bystanders call the police and Jim is arrested for misdemeanor assault (AS 11.41.230). Even though Jim has been charged criminally, Bob and Jim can agree to civilly resolve the case (e.g., Jim can agree to pay for the damaged fence and Bob can agree to not “press charges”). In such a case, Jim would seek dismissal of the criminal charge based on a civil compromise. AS 12.45.130. The court would review the case and individually decide whether to accept the compromise. (Note that the prosecution is not a party to the compromise.) If the Court approves the compromise, the criminal case is dismissed and further prosecution would be barred. AS 12.45.130.

Note that not all criminal cases are appropriate for a civil compromise. Felonies, thefts, domestic violence offenses, and offenses involving police and judicial officers are not subject to civil compromise. AS 12.45.120. In such cases, the societal interests involved outweigh the crime victim’s interest in resolving the criminal case civilly – the crime victim does not have the right to not “press charges.”

Exercises

Answer the following question. Check your answer using the answer key at the end of the chapter.

1. Cory watches as her sister Amanda breaks into a parking meter across the street and starts scooping change into her purse. Amanda thereafter runs into a nearby alley and hides behind a dumpster. A police officer arrives on the scene and asks Cory if she witnessed the crime. Cory responds, “No, I didn’t notice anything.” The police officer does a search, does not find Amanda, and leaves. Has Cory committed a crime? If your answer is yes, which crime has Cory committed, and does Cory have a possible defense?