The SJC recently upheld the conviction of Joseph Nee for conspiracy related to a mass murder similar to that committed in Columbine in COMMONWEALTH vs. JOSEPH NEE 458 Mass. 174 (2010). The primary issue in the appeal was whether he had “Renunciated” meaning aborted the plan. The case is a good illustration of conspiracy and the possible defense.
The court in deciding the case stated “At the trial of an indictment charging the defendant with conspiracy to commit murder in connection with a plot to kill students and school personnel at a public high school, the evidence was sufficient to prove beyond a reasonable doubt that the defendant entered an agreement with another with the intention to commit mass murder, that the defendant prepared to carry out the attack by learning about and experimenting with explosive devices and by attempting to acquire firearms, and that the defendant attempted to recruit others to participate in the attack and threatened anyone who spoke about the plan to the police; further, the judge did not err in declining to recognize and apply the renunciation defense, where that defense was not available, in that the defendant never acknowledged to police that he had conspired to commit a crime nor informed anyone that he was abandoning it, and where providing the protection of the renunciation defense in the circumstances of the case would have defeated the purpose of the defense
4. Claimed renunciation by the defendant of criminal purpose. The defendant claims that the judge erred in refusing to recognize and apply the renunciation defense. Putting to oneside the issue of the availability of that defense in Massachusetts, we conclude that there was no error because the evidence in this case would not entitle the defendant to the benefits of the renunciation defense under any reasonable interpretation of the defense as set out in Model Penal Code § 5.03(6).
First, the renunciation defense applies in circumstances where the defendant manifests a “complete and voluntary renunciation of his criminal purpose” (emphasis added). American Law Institute’s Model Penal Code and Commentaries § 5.03(6) (1985). To “renounce” is to “give up” or “abandon.” Black’s Law Dictionary 1410 (9th ed. 2009). See id. at 1412 (defining “renunciation” as “[c]omplete and voluntary abandonment of criminal purpose . . . before a crime is committed” [emphasis added]). Fundamentally, then, renunciation “posits prior participation.” State v. Hughes, 215 N.J. Super. 295, 298 (1986) (renunciation defense not available to defendant who denied involvement in conspiracy in testimony at trial). For the defendant to be entitled to the affirmative defense of renunciation, he must first have acknowledged that he conspired to commit a crime. This the defendant did not do.
At the meeting at the Marshfield police station the defendant did not inform the police of his own participation in the conspiracy to “shoot up” the school. Nor is there evidence that he informed Kerns, Farley, Sullivan, or anyone else that he was abandoning the conspiracy. Rather, when the defendant spoke to the police about the plan, he placed exclusive blame on Kerns.
He cannot be found to have “renounced” an enterprise in which he denied participation. See American Law Institute’s Model Penal Code and Commentaries, supra at § 5.03(7)(c), at 384 (renunciation accomplished “only if and when [the defendant] advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein” [emphasis added]).
Second, providing the protection of the renunciation defense in the circumstances of this case would have defeated the purpose of the defense. The drafters of the Model Penal Code explained that the renunciation defense seeks to avoid punishing individuals whose actions suggest that they do not merit such punishment, and to provide an incentive for individuals who have entered into a conspiracy to “desist from pressing forward with their criminal designs.” Id. at § 5.03 comment 6, at 457-458. Neither of these aims would be furthered by granting the benefits of the renunciation defense to one who failed to reveal and renounce his own crime.
Because we conclude that the evidence would not entitle the defendant to the benefits of the renunciation defense as set out in Model Penal Code § 5.03(6), we do not address the defendant’s argument that we should adopt the affirmative defense of renunciation to the crime of conspiracy.”
Attorney Ronald A. Sellon