Mitchell v. State

WILNER, Judge. Petitioner was convicted in the Circuit Court for Prince George’s County of a number of offenses, including conspiracy to commit second degree murder. The question before us is whether that is a crime in Maryland. The Court of Special Appeals held that it was.

Mitchell v. State, 132 Md.App. 312 , 752 A.2d 653 (2000). In the context of this case, we disagree. BACKGROUND Petitioner’s convictions arose from a shooting that occurred on September 5,1997. During that morning, the victim, Eddy Arias, received three pages on his pager and, in response to each, left his apartment to use the telephone, as there was no telephone in the apartment.

As he reentered his apartment ¹³⁴ building after responding to the third page, he was attacked by two men at the bottom of the internal stairway, each armed with a handgun and each with a stocking mask over his face. Mr. Arias managed to break free and began to run up the stairs to his apartment, when he was shot in the back by one of the men. For purposes of this appeal, we take as a given that petitioner was one of the two men but that it was the other one, Gregory Ellis, who fired the shot. The State’s theory was that the assailants’ intent was to kill Mr. Arias and not simply to rob him.

Petitioner was charged in a multi-count indictment with a variety of offenses, including a count that was treated as charging conspiracy to commit first degree murder and one that more clearly charged conspiracy to commit second degree murder. 1 At the end of the State’s case, a judgment of acquittal was entered on the counts charging attempted first degree murder, conspiracy to commit first degree murder, and possession of a firearm by a convicted felon. Petitioner was convicted, however, of attempted second degree murder, first degree assault, conspiracy to commit second degree murder, conspiracy to commit first degree assault, and use of a handgun in the commission of a felony. Several of the convictions, among them the two for conspiracy, were merged, but petitioner was sentenced to a total of 46 years in prison, including 13 years for conspiracy to commit second degree murder. Notwithstanding his failure to mount any jurisdictional challenge in the trial court to the count charging conspiracy to ¹³⁵ commit second degree murder or to object to the court’s instruction to the jury on that count, petitioner claimed in the Court of Special Appeals that there was no such crime in Maryland.

He argued there, as he argues here, that establishment of a conspiracy to commit murder necessarily establishes the element of premeditation that would make any murder emanating from the conspiracy first degree murder. It is not legally possible, he claims, for a person to conspire to commit a non-premeditated murder. Regarding the argument as effectively challenging the jurisdiction of the trial court to render a judgment on the count, the Court of Special Appeals determined that it was one that could be raised initially on appeal and therefore addressed it. See Williams v. State, 302 Md. 787, 791-92 , 490 A.2d 1277, 1279 (1985); Lane v. State, 348 Md. 272, 278 , 703 A.2d 180, 183 (1997).

The court found no merit in the argument, however, notwithstanding its view that the argument was “appealing on the surface” and “superficially seductive.” Mitchell, supra, 132 Md.App. at 338, 353 , 752 A.2d at 667, 676 . Rather, the court concluded that it was legally and factually possible for a person to conspire to commit an unpremeditated murder. Its theory was that an agreement to kill a person could be arrived at “virtually instantaneously with the commission (or attempt) of that crime” and thus, despite its spontaneity, suffice to constitute a conspiracy but, because of its spontaneity, not suffice to constitute premeditation. Id. at 354 , 752 A.2d at 676 .

Accordingly, in that circumstance (and perhaps in others that the court indicated might exist but did not attempt to define), it was legally possible to conspire to commit a non-premeditated second degree murder. Id. On that premise, and relying on decisions to that effect in United States v. Croft, 124 F.3d 1109 (9th Cir.1997) and United States v. Chagra, 807 F.2d 398 (5th Cir.1986), cert. denied, 484 U.S. 832 , 108 S.Ct. 106 , 98 L.Ed.2d 66 (1987), it affirmed the challenged conviction. DISCUSSION There appear to be four approaches or lines of authority regarding the point in contention.

One line, represented by ¹³⁶ the two Federal cases cited by the Court of Special Appeals, holds that it is, indeed, possible to conspire to commit second degree, non-premeditated, murder. A second line, emanating from California and Michigan, holds to the contrary, that the agreement constituting the conspiracy necessarily establishes premeditation and thus, as a matter of law, would elevate any resulting murder to first degree. A third line consists of cases in which defendants have, in fact, been convicted of conspiracy to commit second degree murder but in which the issue of whether that constitutes a crime was either not raised or, if raised, was not addressed. Finally, there are a few States in which the crime has been found to exist by statute.

We shall explore each of these approaches, but shall end, as we must, with an analysis of underlying Maryland law. The Fifth and Ninth Circuit Approach In United States v. Chagra, supra, 807 F.2d 398 , the defendant, along with others, was charged with conspiracy to murder a Federal judge, in violation of 18 U.S.C. §§ 1111 (murder), 1114 (killing a Federal officer or employee), and 1117 (conspiracy to murder). Initially, the charge was conspiracy to commit first degree murder, of which she was convicted. When that conviction was overturned on appeal because of faulty jury instructions dealing with premeditation, a superseding indictment was filed charging Chagra with conspiracy to commit second degree murder.

Upon her conviction of that charge, she contended on appeal that no such crime existed because second degree murder is necessarily an unplanned murder, devoid of premeditation, and one cannot plan an unplanned event. Like petitioner here, she argued that the agreement necessary to a conspiracy and premeditation were “sufficiently the same that one cannot exist without the other.” Id. at 401. That argument, the court held, was based on the incorrect assumption that, to constitute a conspiracy to commit first degree murder, the agreement itself must be premeditated, which was not the case. What is required, the court said, is that the defendant agree with another to commit an illegal objective and that, at the ¹³⁷ time of the agreement, the defendant also have the state of mind required to commit the substantive crime.

Although those two states of mind “are almost always one, or tend to collapse into one,” the inquiries must be made separately. Id. The Government was entitled to prove that, at the moment of conspiratorial agreement, Chagra’s intent to kill the judge “was impulsive and with malice aforethought.” Id. An impulsive killing, it continued, nonetheless constitutes the intentional taking of life and, when coupled with malice aforethought, is second degree murder.

In that setting, “the element of agreement and the requisite intent to commit the substantive offense were in harmony” and were not “mutually exclusive requirements of proof.” Id. The court rejected the argument that one cannot plan an unplanned event by rejecting what it regarded as the underpinning of the argument — that one cannot possess the intent to kill impulsively at some future time. The focus of conspiracy, it said, was on the agreement and the defendant’s intent at the time of the agreement, and, in that regard, the court observed that the state of mind “can certainly be to impulsively kill such as, ‘yes' let’s kill the judge.’ ” Id. at 402. The view of the Chagra court was accepted, without discussion, in United States v. Croft, supra, 124 F.3d 1109 .

The defendants, charged with conspiracy to murder the U.S. Attorney, in violation of 18 U.S.C. §§ 1111 , 1114, and 1117, complained on appeal that the instructions to the jury omitted the element of premeditation. The court noted that § 1111(a) included both first and second degree murder, that the indictment did not allege premeditation, that it therefore charged only conspiracy to commit second degree murder, and, citing Chagra , that “it is logically possible to conspire to commit second degree murder.” Id. at 1122-23. The Ninth Circuit court did not discuss any rationale for that view but, we presume, tacitly accepted the reasoning of the Chagra court. So far as we can tell, Chagra and Croft are the only two currently viable cases actually holding, after some consideration of the issue, that conspiracy to commit second degree murder constitutes a common law crime.

There are two other ¹³⁸ cases, however, that bear mention in this regard. In State v. Arnold, 98 N.C.App. 518 , 392 S.E.2d 140 (1990), the defendant was convicted of second degree murder, as an accessory before the fact, and conspiracy to commit first degree murder. On appeal she argued that the conspiracy charge should have been dismissed “since it is legally impossible to conspire to commit second degree murder.” Id. at 150. Despite that articulation of the complaint, however, the issue actually framed was not the one now before us, but seemed to be based more on an asserted inconsistency between the conspiracy charge, alleging an agreement to commit first degree murder, and the actual murder conviction, which was for second degree.

The court concluded that, as the conspiracy occurs when the agreement is made, it is not affected by the degree of the substantive crime actually committed, and that the verdicts were therefore not inconsistent. Implicitly, and quite correctly, the court necessarily concluded that it was legally possible for one to conspire to commit first degree murder even though the crime actually committed amounts only to second degree murder. See also State v. Leonardo, 119 R.I. 7 , 375 A.2d 1388 (1977), to the same effect. California and, Michigan As we indicated, California and Michigan have espoused a very different view than the Chagra and Croft courts.

The California approach evolved through four cases. In People v. Kynette, 15 Cal.2d 731 , 104 P.2d 794 (1940), the court concluded that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being” and that “[a] murder committed in pursuance of such an agreement would unquestionably be a “willful, deliberate and premeditated’ murder of the first degree....” Id. at 801 . In part, that conclusion was based on a statute in effect at the time (Cal.Pen.Code, § 182) that made conspiracy punishable in the same manner and to the same extent that the code provided for commission of the target felony. ¹³⁹ In 1955, § 182 was amended to provide that, (1) if the felony was one for which different punishments were prescribed for different degrees, the jury or court must determine the degree of the felony the defendant conspired to commit, and (2) if the degree was not determined, the punishment for conspiracy was to be that prescribed for the lesser degree, except that, in the case of conspiracy to commit murder, the punishment was to be that prescribed for murder in the first degree. In People v. Horn, 12 Cal.3d 290 , 115 Cal.Rptr. 516 , 524 P.2d 1300 (1974), the court, in dicta, considered the effect of the statutory change, and, in so doing, determined that a conspiracy could take the form of conspiracy to commit first or second degree murder or manslaughter. 2 That conclusion was based on three factors: the then-existing availability of a diminished capacity defense, the then-existing requirement that, to establish premeditation, the State must show that the defendant could “maturely and meaningfully reflect upon the gravity of his contemplated act,” and the change to § 182.

Id. at 1305-06. The conclusion in Horn was largely disavowed in People v. Swain, 12 Cal.4th 593 , 49 Cal.Rptr.2d 390 , 909 P.2d 994 (1996). Under California law, second degree murder could arise in three settings: (1) unpremeditated murder with express mal ice — ie., an unlawful killing with malice aforethought but without deliberation and premeditation; (2) murder based on implied malice, where there may have been no intent to kill but the killing results from an intentional act, the consequences of which are dangerous to human life, performed with knowledge of the danger and with conscious disregard for human life; and (3) second degree felony murder, ie., a killing, whether intended or not, occurring during and as a ¹⁴⁰ result of the commission or attempted commission of certain crimes. The principal issue in Swain was whether it was possible to conspire to commit second degree murder based on implied malice — the second of the three circumstances — and the court held that such a possibility did not exist.

Conspiracy, the court began, is a specific intent crime, requiring two kinds of intent — an intent to agree or conspire and a further intent to commit the target crime. No problem arises with respect to express malice murder, as the intent to MU requirement for the conspiracy and the intent to Mil requirement for that form of murder were the same: “Simply put, where the conspirators agree or conspire with specific intent to Mil ... they are guilty of conspiracy to commit express malice murder.” Id. at 998. Implied malice murder, however, does not require an intent to Mil; the malice is implied from the intent to do some other act dangerous to life, coupled with the fact that a Mlling has resulted from the commission of that act. It is precisely due to this nature of implied malice murder, the court held, that “it would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied.” Id. at 999.

Thus, the court held, “a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice.” Id. at 1001. That conclusion led to a reversal of Swain’s conviction, as the trial court had instructed on theories of both express and implied malice and the jury had returned a general verdict. The court noted, however, the difficult question of whether there exists a viable offense of conspiracy to commit express malice second degree murder. It was in that regard that the Swain court disavowed the conclusions reached in Horn , on the grounds that (1) the California legislature had, by statute, eliminated both the diminished capacity defense and the condition of premeditation that the defendant maturely and meaningfully reflect on the gravity of his or her act, and (2) the Horn court had misconstrued the legislative change to § 182.

Although it declined to reach the issue, as being premature in ¹⁴¹ the circumstance, the court noted that, with those statutory changes, the situation appeared to have returned to what it had been when Kynette was decided and that “conspiring to murder with the requisite intent to kill is arguably functionally indistinguishable from the mental state of premeditating the target offense of murder.” Id. at 1002-03. If that were so, then logically all conspiracy to commit murder is necessarily conspiracy to commit first degree murder. That open question was resolved in People v. Cortez, supra, 18 Cal.4th 1223 , 77 Cal.Rptr.2d 733 , 960 P.2d 537 , where the court held that “all conspiracy to commit murder ‘is necessarily “conspiracy to commit [premeditated] first degree murder.” ’ ” Id. 77 Cal.Rptr.2d 733 , 960 P.2d at 538 . Tracking much of what it had said in Swain , the court noted that the process of premeditation and deliberation “does not require any extended period of time.” Id. 77 Cal.Rptr.2d 733 , 960 P.2d at 542 .

The test is “not the duration of time as much as it is the extent of the reflection,” and thus, “[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” Id. (quoting People v. Thomas, 25 Cal.2d 880, 156 P.2d 7 , 18 (1945)). The court confirmed that “where two or more persons conspire to commit murder — i.e., intend to agree to conspire, further intend to commit the target offense of murder ... each has acted with a state of mind ‘functionally indistinguishable from the mental state of premeditating the target offense of murder’ ” and that “the mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder — hence all murder conspiracies are conspiracies to commit first degree murder, so to speak.” Id. 77 Cal.Rptr.2d 733 , 960 P.2d at 542 (quoting, in part, from Swain, supra, 49 Cal.Rptr.2d 390 , 909 P.2d at 1002-03 ). Specifically overruling any contrary holdings in Horn , the court expressly held that “all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder.” Id. 77 Cal.Rptr.2d 733 , 960 P.2d at 546 . ¹⁴² The intermediate appellate court of Michigan has reached the same conclusion, for essentially the same reason.

See People v. Hammond, 187 Mich.App. 105 , 466 N.W.2d 335 (1991). It too began with the facts that (1) conspiracy is a specific intent crime, the gist being “the specific, mutual agreement to perform the crime in question,” and (2) “second-degree murder is distinguishable from first-degree murder in that it does not require premeditation and in fact may not require a specific intent to Mil.” Id. at 337. Citing People v. Hamp, 110 Mich.App. 92 , 312 N.W.2d 175 (1981), the court concluded that, as prior planning and agreement were necessary elements of conspiracy, it is analytically consistent to plan to commit first degree murder “but logically inconsistent to ‘plan’ to commit second-degree murder.” Hammond, supra, 466 N.W.2d at