Commonwealth v. Nee

The defendant, a high school student, was convicted of conspiracy to commit murder.

At trial, other students, Farley and Sullivan, testified that the defendant told them that he had a plan to “shoot up” the school and asked whether they were interested in joining him. On another occasion, the defendant asked Tobin Kerns, another student, whether Kerns would be interested in joining his plan. Kerns and the defendant discussed the plan with Sullivan and asked whether he would be interested in participating. Kerns and the defendant, along with Farley, Sullivan, and perhaps one other student, were to shoot and kill targeted students, teachers, and other staff at the school using an assortment of automatic and semiautomatic weapons. They would set trip wire explosives, line the hallway with napalm, and place bicycle locks on the main and rear doors to the school to prevent escape. The defendant told Farley that “he wanted to be exactly like Eric Harris,” one of the perpetrators of the Columbine mass murder.

Kerns and the defendant developed a list of supplies needed, and a list of specific names that they planned to kill. They labeled a map with entry points and other information relevant to the planned attack. They also attempted to make some of the explosives.

The defendant lived in Kerns’ house for approximately one month in the late spring or early summer of 2004. He left when Kerns was hospitalized after attempting suicide. The defendant said that the people at the hospital were “brainwashing” Kerns and that he should not be there, and suggested “breaking [Kerns] out.”

In September, 2004, the defendant approached an officer and told her that “Kerns was scaring him.” The officer arranged a meeting for the defendant at his request. He informed the officers that Tobin Kerns had developed an elaborate plot to “blow up the school.” The defendant described the plot in detail. Over the course of the several hours he spoke with the police officers,  the defendant did not indicate that he had planned to participate with Kerns in the attack. Rather, the defendant led the officers to believe that Kerns “developed this whole thing himself and [the defendant] was just a follower,” who was not in concert with Kerns.

The defendant appealed his conviction, arguing that the trial judge erred in refusing to recognize and apply the renunciation defense.