Gardner v. State

Lowe, J., delivered the opinion of the Court. — the hobgoblin 1 — Over a hundred years ago, Stephen’s General View of Criminal Law pointed out that the law of conspiracy is the most complete illustration of the fiction consisting of treating as a crime, not the very acts which are intended to be permeated, but certain ways of doing them. Fitz. St. 62. Because the gist of the offense of conspiracy is the combination which is formed for an unlawful purpose, the impossibility of one person forming a combination with himself is too obvious for discussion.

Applying that premise, it would seem “logically” to follow that where one of two supposed confederates merely feigns acquiescence without criminal intent, the other party cannot be guilty of conspiracy since there is no second party with whom he could culpably conspire. See Regle v. State, 9 Md. App. 346, 355 (1970). That would seem a “logical” extension of a rule; but as we are too often wont in the law, the original “two to tango” maxim rings so “logically” that it is applied as stare decisis rather than recognized for the stare dictis that it is. We have extended that supposition to everything that seemed “logically” to follow from it.

So hide-bound did it become that in hoary texts can be found an example that because a man and wife are considered one person, they cannot be considered as conspirators between themselves; 2 nor has that particular fiction been altogether abrogated by the passage of time. 3 See Dawson v. United States, 10 F. 2d 106, 107 (9th Cir. 1926). ¹⁸⁹ Laboring under the assumption that the law is necessarily “logical,” this need for at least two guilty minds to combine in order to conspire, was forged into a rule, the “rule of consistency” — an euphemism that, in a judicial system that relies for its stability upon consistency, further solidified the rule it described. As our Court has heretofore described the rule of conspiratorial consistency, it holds that: “[0]ne defendant in a prosecution for conspiracy cannot be convicted where all of his alleged co-conspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal.” Regle v. State, 9 Md. App. at 351 . Without stating that law is not always “logical,” we premised our reasoning in applying that rule upon the rationale that: “[I]t is illogical to acquit all but one of a purported partnership in crime; that acquittal of all persons with whom a defendant is alleged to have conspired is repugnant to the existence of the requisite corrupt agreement; and that regardless of the criminal animus of the one defendant, there must be someone with whom he confected his corrupt agreement, and where all his alleged co-conspirators are not guilty, a like finding as to him must be made.” Id. at 351-352 . We noted that some common sense has crept into the inconsistency bar to conviction.

The rule does not apply to mere procedural impossibility of conviction of co-conspirators, but rather requires their acquittal. The conviction of a single conspirator in a conspiracy case where all co-conspirators were: 1) granted immunity, Hurwitz v. State, 200 Md. 578 (1952); 2) enjoyed diplomatic immunity, Farnsworth v. Zerbst, 98 F. 2d 541 (5th Cir. 1938); 3) unknown to the prosecution, Adams v. State, 202 Md. 455 (1953); 4) granted a consensual nolle prosequi, Greathouse v. State, 5 Md. App. 675 (1969), cert. denied, 253 Md. 734 (1969); or, 5) dead or unapprehended, State v. Tom, 13 N. C. 569, 575 (1830), ¹⁹⁰ citing Rex v. Kinnersly, 1 Str. 193 and Rex v. Niccolls, 2 Str. 1227, see Perkins, supra, is not precluded as it might be if all co-conspirators were adjudicated innocent. Such procedural impossibilities do not act as a bar to the conviction of the remaining conspirator. Despite our recognition of those limitations we stretched the consistency rule a step farther in Regie.

Based upon another legal fiction — that an insane person is incapable of forming a criminal intent, Bradford v. State, 234 Md. 505, 512-514 (1964) — we held: “[WJhere only two persons are implicated in a conspiracy, and one is shown to have been insane at the time the agreement was concluded, and hence totally incapable of committing any crime, there is no punishable criminal conspiracy, the requisite joint criminal intent being absent.” Regle v. State, 9 Md. App. at 355 . There having been no prior adjudication of the co-conspirator (Fields) in Regie, we remanded for retrial with the following directive: “We thus deem it essential in the interest of justice that appellant’s conspiracy conviction be reversed and that the State be afforded the opportunity to retry the case in light of the principles of law which we consider relevant and controlling. If, upon retrial, the State intends to charge only Fields and appellant as conspirators, and the evidence properly shows that Fields was legally insane at the time the agreement to perpetrate the robbery was concluded, then even though Fields has not been acquitted of the offense of conspiracy by a judicial determination that he was insane, nevertheless the requisite joint criminal intent being absent, appellant cannot properly be convicted of engaging with Fields in a criminal conspiracy.” Id. at 357 . ¹⁹¹ — the facts — Appellant in the case at bar relies primarily upon the Regie holding in asking that we reverse his conspiracy conviction as rendered by the Circuit Court for Howard County. The appellant, Roger Edward Gardner, was a murderer for hire who conspired with Ralph Lubow to murder Morton Hollander and Alvin Blum.

He conditionally “subcontracted” the Blum “hit” to one Timothy McDonald in the event Hollander’s death did not effect the result sought by Lubow. McDonald immediately became a police informant who only feigned acquiescence; thus McDonald lacked the criminal intent necessary to a conspiratorial agreement (see Regle, supra at 355 ). Consequently, a joint indictment charged only Gardner and Lubow with conspiring together to murder Hollander and Blum, and no other persons known or unknown were named. Gardner sought and received a severance.

He was tried prior to Lubow and, on December 12,1977, was convicted by Judge James Macgill of conspiracy and solicitation to murder. In accord with our Kelley v. State, 12 Md. App. 251, 258 (1971), cert. denied, 263 Md. 716 (1971), Judge Macgill held that: “[T]he evidence establishes beyond a reasonable doubt that there was an understanding or a meeting of minds between Mr. Gardner and Mr. Lubow to use a word which has been used, more often than not, in the testimony in this case, ‘to hit’ these two gentlemen.” Gardner had relied heavily upon the Regie case at trial and placed in issue Lubow’s mental competence as his primary defense. 4 Gardner’s attorney called Lubow to take the stand for the limited purpose of waiving his psychiatrist-patient privilege. Md. Cts. & Jud. Proc.

Code Ann. § 9-109 (d) (6) (Supp. 1978) (effective July 1, 1977). Judge Macgill met the issue of Lubow’s competence head on in his opinion. After reviewing the holding of Regie, he addressed the evidence as presented in the case, finding factually that Lubow was ¹⁹² capable of the prerequisite criminal intent to participate in a conspiracy with Gardner. Gardner was sentenced on March 21, 1978 to two five year terms for conspiracy and one for solicitation to murder, all to be served concurrently.

Seven months after conviction (but four months after sentencing), Ralph Lubow was found “not guilty” (by reason of insanity) of having conspired with Gardner for the murder of Hollander and Blum. Appellant now calls upon us to reverse his conviction under the Regie holding because of its “repugnant” inconsistency with the Lubow result in order “to place Lubow’s subsequent acquittal within the record, [so that] justice would be best served by addressing through judicial notice the merits of the issue raised by that [Lubow] acquittal.” 5 Unless we are prepared to rescind our Regie decision, what appears at first blush to be the next logical progression of the consistency rule as extended by Regie would provide an easy answer favorable to appellant. But Regie, like most of our cases, is only authority for what it actually decided. It does not necessarily follow that it can be quoted for a proposition that may seem to follow “logically” from it, as pointed out by Lord Halsbury in Quinn v. Leathern, [1901] A. C. 495, 506. “Such a mode of reasoning assumes that law is a logical code whereas every lawyer must acknowledge that the law is not always logical at all.” As beguiling as such an easy answer would be, we are troubled that the very issue upon which Gardner now relies for his release (i.e., Lubow’s mental incompetency) formed the heart of Gardner’s defense in his own trial, and was fully tried and definitively decided by the Gardner court.

Appellant did not object below to the trial proceedings on the insanity issue or to the sufficiency of the evidence upon which Judge Macgill based his finding of sanity. See Md. Rules 1085 and 1086. To the contrary, he promulgated the consideration of ¹⁹³ that issue. What appears a “logical” extension of the rule of consistency would provide an illogical result. — the insanity defense — Undergirding Gardner’s contention is the presupposition that Lubow’s sanity can ,’bnly be conclusively litigated by Lubow.

It presumes that any litigation hinged upon the issue of Lubow’s competency is temporary, despite its final determination by another court, and is subject to stand only if a consistent verdict evolves from Lubow’s trial — if, indeed, he is tried at all. There are, however, fatal weaknesses in appellant’s position. The rule of consistency does not require an adjudication of guilt of a co-conspirator. As indicated above, the rule does not foreclose conviction where a co-conspirator may have been granted immunity ( Hurwitz, supra), be unknown ( Adams, supra), unapprehended or even dead (Perkins, supra), “so long as the disposition of the case against a co-conspirator does not remove the basis for the charge of conspiracy, a single defendant may be prosecuted and convicted of the offense ....” Regle v. State, 9 Md. App. at 352 .

If the State had decided not to prosecute Lubow, then Gardner, having injected Lubow’s competency as a defense, would be bound by the verdict in his case. Regie decided that precise issue. Upon the remand there, Regie was to be exonerated if “the evidence properly shows” in his case that his co-conspirator was insane. Implicit in those instructions was our recognition that the co-conspirator would never be tried, because the record showed that the co-conspirator “had been examined by State psychiatrists ... and found ’not guilty by reason of being insane at the time of the alleged crime.’ ” Id. at 350 .

It is apparent that we expected the issue of the co-conspirator’s sanity to be an issue to be decided only in Regie’s case. In Regie, we did not address what evidence was necessary for a factfinder to conclude that “the requisite joint criminal ¹⁹⁴ intent” was- absent, other than to point to our reliance on Bradford, supra, 234 Md. at 514 , for the premise that “an insane person is mentally incapable of forming a criminal intent.” Regie v. State, 9 Md. App. at 355 . But that premise, while true under the McNaughten test for insanity used at the time Bradford was written, is only a half truth under the current Maryland substitution of the American Law Institute test, adopted by Chapter 709, Laws of Maryland, 1967 (current version at Md. Ann. Code art. 59, § 25 (Repl. Vol. 1972)).

See Conn v. State, 41 Md. App. 238 (1979); McCracken v. State, 2 Md. App. 716 (1968), cert. denied, 250 Md. 732 (1968). Under the McNaughten-Spencer test (see Spencer v. State, 69 Md. 28 (1888)), the only question for the factfinder was the ability of the offender “to distinguish between right and wrong and understand the nature and consequences of his act as applied to himself____” Rowe v. State, 234 Md. 295, 305 (1964), cert. denied, 379 U. S. 924 (1964). Obviously, under that test, the Bradford Court was correct in pointing out that an insanity issue involved “the mens rea or intent which is an essential element of the offense which the State must prove,” Id. at 514 , or, as broadly translated by Chief Judge Murphy for our Court in Regie, “an insane person is mentally incapable of forming a criminal intent.” Since the 1967 modified adoption of the American Law Institute test by the Legislature, that is no longer necessarily true. “The [19671 legislation broadened the previous ‘right-wrong’ test by making the insanity defense available to an offender who, although he could distinguish between right and wrong and could understand the nature and consequences of his acts at the time of the commission of the crime, could not, as a result of a mental disease or defect, conform his actions to the requirements of the law.” Conn v. State, 41 Md. App. 238 at 244 . Even at the time of Regie, had we been called upon to set forth what proof of the co-conspirator’s insanity would redound in Regie’s release, the statute would have compelled ¹⁹⁵ our explanation that only one of the two alternate tests for insanity would have sufficed.

Md. Ann. Code art. 59, § 25 (a) (1972) states that: “A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as