Meyer v. State

Wilner, J., delivered the opinion of the Court. On April 26, 1978, a jury in the Circuit Court for Prince George’s County found appellant guilty of the first degree murder of Carol Lewis and the second degree murder of Heather Lewis. The victims were, respectively, the wife and infant daughter of one Lon Alec Lewis; and it was alleged that, the murders were committed pursuant to an agreement with Mr. Lewis — that they were, in colloquial terms, "contract murders.” Appellant ultimately was sentenced to consecutive terms of life and thirty years imprisonment for those crimes, and the convictions were affirmed on appeal. See Meyer v. State, 43 Md. App. 427 (1979), cert. den. 286 Md. 750 , cert. den. 446 U.S. 938 , 64 L. Ed. 2d 792 (1980).

Lewis was also tried and convicted for his complicity. See Lewis v. State, 285 Md. 705 (1979). Appellant was not sentenced on April 26. The court deferred sentencing pending (possibly among other things) receipt of a presentence investigation report; and appellant was lodged at the Prince George’s County Detention Center during the interim.

While at the Center awaiting sentencing, appellant attempted to set in motion a plan for four more killings. Specifically, according to the record before us, he sought to arrange for the killing of his wife, Mr. Lewis, and two police ⁶⁸¹ officers who had investigated the Lewis killings and succeeded in extracting a confession from him (Detectives Hatfield and Morrissette). Fortunately for the intended victims, but unfortunately for appellant, the person he solicited to carry out or arrange for these executions was an undercover State policeman, Frank Mazzone, who recorded the two conversations he had with appellant pertaining to this scheme. By reason of these activities, appellant was charged with four counts of solicitation of murder — one count for each intended victim.

He was convicted on all four counts, given four consecutive sentences of twenty years each (consecutive to the life plus thirty already being served), and now appeals. He claims: "1. The Trial Judge Erred In Denying Appellant’s Motion For Judgment Of Acquittal Where The Evidence Indicated That The Appellant Solicited Mazzone Not To Murder The Intended Victim As Charged But Rather To Solicit Others To Carry Out The Intended Murder And In Instructing The Jury That The Appellant Should Be Found Guilty If It Was Proven That He Solicited Mazzone To Have The Murders Committed. 2. The Trial Judge Erred In Imposing Four (4) Consecutive Twenty (20) Year Sentences Upon The Appellant Where The Criminal Act Of The Appellant Was One Continuous Series Of Conversations Wherein He Made The Solicitation. 3.

The Trial Judge Erred In Denying Appellant’s Motion To Suppress The Tapes Recording The Conversations Between Himself And Mazzone Where The Statements Of The Appellant Were Obtained By The Police In Violation Of Appellant’s Constitutional Right To Counsel.” We find no merit in any of these contentions. ⁶⁸² Appellant’s initial contact with regard to his plan was with Joseph Walker, a co-inmate at the Detention Center. He asked whether Walker knew "anyone who did contract killings or hits.” Walker responded in the affirmative, whereupon, according to Walker, appellant "asked me if I could arrange for a killing.” He did not tell Walker who the victim or victims were to be. Walker passed this information on to a Prince George’s County policeman, for whom he had served as an informant. With the concurrence of the State’s Attorney’s Office, it was arranged for Captain Mazzone, of the State Police, to play the role of Vince Rinaldo, an agent for two "hit men” and, wearing a secret transmitter, to meet with appellant at the Detention Center and find out more about what he had in mind. .

Two meetings took place, and in both instances the conversation was recorded and transcribed. At the first meeting, on May 8,1978, appellant very clearly importuned Mazzone to kill, or to arrange for others to kill, appellant’s wife. At the second conversation, on May 15,1978, there was further discussion about the liquidation of the wife and additional importunings of Mazzone to kill, or to arrange for others to kill, the two police officers and Lon Alec Lewis. The conversations tended to ramble a bit, but what essentially came through was this: (1) As to the wife, appellant explained that he was upset with her because she failed to testify in his behalf.

She was then living in Puerto Rico, and, in order to facilitate the execution, appellant told Mazzone in some detail what her living arrangements were. He described his wife’s appearance and also made arrangements for Mazzone to obtain a picture of her from appellant’s apartment. (2) There was a great deal of discussion about the fee for murdering the wife, the parties finally agreeing on $40,000. Appellant promised a deposit of $1,000 "up front,” to be taken from an existing bank account in Minnesota, with the balance to be paid from the proceeds of a $100,000 insurance policy on the wife’s life. 1 Indeed, as that policy was about to ⁶⁸³ lapse because of nonpayment of premiums, appellant insisted that the killing take nlace before May 15.

He told Mazzone that he didn’t care what method was used, but would leave that up to the actual executioner. Appellant did, in fact, later procure a $1,000 money order payable to Vince Rinaldo which he caused to be sent to Mazzone. (3) The scheme to kill the two officers and Lewis came up in the second conversation, which was initially prompted by the fact that Mazzone had not yet received the $1,000 deposit. After some discussion about that and some further conversation about the execution of the wife, appellant broached the subject of killing the two officers.

He told Mazzone that he didn’t want them around as witnesses in the event of a second trial. 2 There was no rush about doing away with the officers; as appellant put it, "I suppose anytime, they say a year before the appeal, so anytime within the next year, so its [sic] not really pushing it.” Notwithstanding the permissible delay in implementation, appellant and Mazzone did arrive at a definite agreement as to their ultimate disposition. Appellant gave Mazzone the names of the officers and told him where they worked. They agreed on a fee of $80,000 for the two officers, over and above the $40,000 for the wife. (4) Lewis was almost an afterthought.

Near the end of the second conversation, appellant indicated a desire to be rid of him as well. This part of the conversation is most relevant: "FRANK (MAZZONE): All right, what do you want to do with him? GENE (APPELLANT): Um, same thing with Hatfield or Morrisette [the two officers] if that’s... . FRANK: Is he on the street right now ⁶⁸⁴ GENE: No, he’s up here — second floor FRANK: Does he know your [sic, you’re] here?

GENE: Disappears or if he dies, people collect_ .people ask too many questions here. FRANK: You, you do want him dead, or you don’t. GENE: I do.” Ultimately, it was agreed that Mazzone should wait until Lewis was transferred from the Detention Center to the State prison where the killing would be easier to accomplish. 3 Appellant promised an additional fee of $9,000 for Lewis. Walker had told appellant that Mazzone was a "legal representative of . . . two professional hitmen.” Mazzone never represented himself as a lawyer, and in fact never made clear to appellant what his supposed relationship was with whomever was to commit the murders.

Indeed, there is nothing in the transcript of the conversations to foreclose the possibility that Mazzone himself would be the actual "hitman.” Throughout the conversations, when referring to the killings, Mazzone used the plural pronoun "we” — "Then we do the job,” "if we got to go to Pureto Rico . . .,” "what do you want to show that we did the job? We bring you something back?” ”we got a standard way we do things.” By way of contrast, when referring to things he individually would do, such as retrieve the picture of appellant’s wife from his apartment, Mazzone used the singular pronoun, "I.” In short, although he said nothing directly to dispel any notion that he was merely an agent for others, Mazzone, in ⁶⁸⁵ his own conversations with appellant, clearly portrayed himself as an integral part of a group willing to carry out contract murders, without indicating who would actually "do the job.” 4 With this background, we may dispose of appellant’s complaints. (1) Appellant’s first challenge, both as to the sufficiency of the evidence and the jury instructions, rests upon the premise that Mazzone was acting solely as an agent for others rather than as the "hitman” himself, and that his entreaties to Mazzone were made upon that understanding. His argument is a technical one, proceeding from this syllogism: (i) In Maryland, the common law crime of solicitation requires as its object the commission of a felony; (ii) the evidence here establishes at best (or worst) an importuning of Mazzone to enter into a conspiracy to have other persons commit the murders and not to commit the murders himself; (iii) the entering into a conspiracy in Maryland is a misdemeanor; (iv) ergo, as the sole object of his entreaties to Mazzone was the commission of a misdemeanor, he cannot be adjudged guilty of common law solicitation. ⁶⁸⁶ We need not examine in any detail the correctness of appellant’s asserted legal propositions because his factual predicate for them is incorrect. 5 For one thing, Mazzone’s testimony and the transcript of the conversations with appellant permit a fair and reasonable inference that Mazzone/Rinaldo was negotiating as a potential "hitman” himself or as one who would not only arrange the killings but be present at the scene of their commission.

Even accepting appellant’s view that Mazzone was merely an agent not intending to commit the murders (or be present at their commission), he nevertheless would clearly have been an accessory before the fact had the murders actually been committed by his "clients.” At the very least, Mazzone/Rinaldo’s role was to aid, counsel, command, or encourage the commission of the killings. In either case, whether his role was that of actual participant or accessory before the fact, he would have been culpable as a principal had the murders been committed by reason of his efforts. See State v. Ward, 284 Md. 189 (1978). It is clear, therefore, that the object of appellant’s solicitation was for Mazzone to commit murder, a felony; and thus, even under the Cherry dicta, the evidence sufficed to establish the crime of criminal solicitation.

(2) Appellant next asserts, in a somewhat confused fashion, that the imposition of four consecutive sentences was inappropriate since, at best (or worst) only one criminal ⁶⁸⁷ solicitation was involved. The object or thrust of his argument is clear — he seeks to vacate at least three of the sentences — but the argument itself is ambiguous in terms of both the precise nature of the complaint and the legal theory offered in support of it. The contention is initially framed in his brief, and was expounded at oral argument, as an attack only upon the multiple sentences and not upon the underlying multiple convictions. Yet the basis of his complaint is the assertion that only one criminal act occurred, which, if true, would impact as much, if not more, upon the validity of the several convictions as upon the sentences imposed on them.

In laying out his theory, he weaves back and forth between the argument that only one incitement took place and the contention that the doctrine of merger, as