Regle v. State

Murphy, C.J., delivered the opinion of the Court. On September 28, 1968, Sergeant Frank Mazzone, a Maryland State Police officer working under cover, was advised by other police officers that Michael Isele, a police informer, had informed them that he had been invited by the appellant Regie to participate in a robbery. Mazzone immediately contacted Isele, whom he previously knew, and together they went to see the appellant. Isele introduced Mazzone to the appellant as a prospective participant in the planned robbery.

After some dis ³⁴⁹ cussion, the appellant invited Mazzone to participate in the robbery. While appellant did not then specify the place to be robbed, he indicated to Mazzone that Richard Fields had been involved with him in planning the robbery, and that he would also participate in the crime. Appellant, Mazzone, and Isele then met with Fields and the robbery plan was outlined by appellant and Fields. The need for guns was discussed and appellant and Fields spoke of the necessity of killing two employees at O’Donnell’s restaurant, the situs of the proposed robbery.

The four men then drove in Isele’s car to appellant’s home where appellant phoned Kent Chamblee for the purpose of purchasing a shotgun. Thereafter, the men drove to Chamblee’s home, purchased the gun from him, and tested it in his presence. While Chamblee knew that the shotgun was to be used “for a job,” he did not accompany the others when they then drove to the restaurant to perpetrate the robbery. Upon arriving there, Mazzone told appellant that he first wanted to “case” the restaurant.

This being agreed, Mazzone and Isele went into the restaurant while appellant and Fields went to a nearby bar to await their return. Once inside the restaurant, Mazzone contacted police headquarters and requested assistance. Thereafter, he and Isele left the restaurant and rejoined appellant and Fields. While several police cars promptly responded to the scene, Mazzone found it necessary, in the interim, to reveal his identity as a police officer and to arrest appellant and Fields at gunpoint.

At the same time he also arrested Isele in order “to cover him.” After the arrest, appellant made an incriminating statement to the effect that he and Fields had planned the robbery and that he had invited Isele to participate in the crime. Appellant, Fields, and Chamblee were thereafter jointly indicted for conspiracy to rob with a dangerous and deadly weapon and for carrying a deadly weapon openly with intent to injure. Appellant was separately tried by a jury, found guilty on both counts, and sentenced to twenty years on the conspiracy charge, and two years, concurrent, on the weapons offense. ³⁵⁰ The docket entries indicate that the conspiracy indictment against Chamblee was nol prossed prior to appellant’s trial. It also appears that at his trial appellant established through the testimony of a police officer that Fields had been examined by State psychiatrists at the Clifton Perkins State Hospital and found “not guilty by reason of being insane at the time of the alleged crime.” The State did not rebut the officer’s testimony, although the record indicates that two of the State psychiatrists who had examined Fields were then present in court.

Against this background, appellant contends that since the indictment against Chamblee was nol prossed, only he and Fields were charged as conspirators; and that because Fields was found insane at the time of the commission of the crime and thus was not a person legally capable of engaging in a criminal conspiracy, his own conviction cannot stand since one person alone cannot be guilty of the crime of conspiracy. Conspiracy — a common law misdemeanor in Maryland — is defined as a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful- means. Jones v. State, 8 Md. App. 370 . The gist of the offense is the unlawful combination resulting from the agreement, rather than the mere agreement itself, and no overt act is required to constitute the crime.

Wilson v. State, 8 Md. App. 653 . In other words, as succinctly stated by the Supreme Court of New Jersey in State v. Carbone, 91 A. 2d 571, 574 , the “gist of the offense of conspiracy lies, not in doing the act, nor effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.” Concert in criminal purpose, it is said, is the salient factor in criminal conspiracy. Criminal conspiracy is a partnership in crime — “It is the coalition of manpower and human minds enhancing possibilities of achievement aimed at the objective that present a greater threat to society than does a lone offender.” Clark and Marshall Crimes ³⁵¹ (6th Edition) Section 9.00. In short, it is the existence of the conspiracy which creates the danger.

Dennis v. United States, 341 U. S. 494, 511 . As one person cannot conspire or form a combination with himself, it is essential in proving the existence of a criminal conspiracy to show “the consent of two or more minds,” Bloomer v. State, 48 Md. 521, 536 , viz., it must be shown that at least two persons had a meeting of the minds — a unity of design and purpose — to have an agreement. Wilson v. State, supra; Jones v. State, supra. A formal agreement need not, however, be established; it is sufficient if the minds of the parties meet understanding^, so as to bring about an intelligent and deliberate agreement to do the acts contemplated.

Clark and Marshall, Section 9.03. As the crime of conspiracy is one requiring a specific intent, and necessarily involves at the least two guilty parties, the required criminal intent must exist in the minds of two or more parties to the conspiracy. Perkins on Criminal Law, pp. 537, 544; 16 Am.Jur.2d Conspiracy, Section 9; Wharton’s Criminal Law and Procedure (Anderson Edition), Section 83; Clark and Marshall, Section 9.07 (footnote 11). In view of these principles, it is the well settled general rule that one 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.

Hocheimer on Criminal Law (Second Edition) Section 290; Clark and Marshall, Section 9.07; Wharton’s, Section 91; Perkins, p. 533. The validity of the general rule has been consistently recognized by the Court of Appeals. See State v. Buchanan, 5 H & J 317; Bloomer v. State, supra; Hurwitz v. State, 200 Md. 578 . We recognized the rule in Wilson v. State, supra (footnote 9).

The rationale underlying the rule appears clear: that it 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 agree ³⁵² ment; 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. See 91 A.L.R.2d, at p. 703. But “It is only where one is convicted and another or others are acquitted, resulting in a repugnancy upon the record, that the convicted conspirator may be discharged.” Berry v. State, 173 N. E. 705 (Ind.), cited with approval in Hurwitz v. State, supra. Generally speaking, it would appear that 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, even though for one reason or another his co-conspirator is either not tried or not convicted.

See the exhaustive collection of cases at 72 A.L.R. 1180 -1192 and 91 A.L.R.2d 700 -733. Consistent with this rule, the authorities all agree that the death of one conspirator does not of itself prevent the conviction of the other, where the conspiracy between them is shown by the evidence. In Hurwitz v. State, supra, a case in which all but one of the conspirators were granted immunity from prosecution on a ground not inconsistent with their participation in the conspiracy, the court held that such grant of immunity was not equivalent to acquittal and would not require reversal of the conviction of the one remaining conspirator. The same rule has been applied where one of two conspirators enjoyed diplomatic immunity and therefore could not be prosecuted for the conspiracy.

Farnsworth v. Zerbst, 98 F. 2d 541 (5th Cir.). In Adams v. State, 202 Md. 455 , it was held that conviction of one defendant in a conspiracy case was proper despite failure to convict any of the other conspirators where it was alleged and shown that there were persons unknown to the prosecution with whom the convicted defendant had conspired. And while the cases are generally divided on the question whether the entry of a nolle prosequi as to one of two alleged conspirators compels an acquittal of ³⁵³ the remaining conspirator, the better reasoned view would appear to support the proposition that it does not, at least where the nolle prosequi was not entered without the co-conspirator’s consent after the trial had begun (which then would have amounted to an acquittal and precluded reindictment). See Greathouse v. State, 5 Md. App. 675 .

In Hurwitz, it was held that the entry of a “stet” to a co-conspirator’s indictment was not tantamount to an acquittal and did not compel the discharge of the only remaining conspirator. 1 Some cases suggest that the rule that acquittal of all save one of the alleged conspirators results in the acquittal of all applies only to acquittals on the merits. See Farnsworth v. Zerhst, supra. Other cases — while recognizing that acquittals are not always tantamount to a declaration of innocence — nevertheless conclude that an acquittal is in effect a judicial determination, binding on the State, that the acquitted defendant was not a participant in a criminal conspiracy. See United States v. Fox, 130 F. 2d 56 (3rd Cir.); State v. Smith, 175 S. W. 392 (Ark.).

The State urges that where the acquittal of one of the alleged conspirators is based solely on the fact that he was insane at the time of the crime, the remaining conspirator should nonetheless be held responsible for the offense. The State relies on Jones v. State, 19 So. 2d 81 (Ala.), a case in which the defendant, convicted of murder, maintained that the actual killing was done by his brother and that because his brother was insane at the time of the crime, and hence innocent of the offense, he (the defendant) must likewise be exonerated. The court, after characterizing the defendant as “a co-conspirator and an aider and abettor in the homicide,” said (p. 83) : “* * * the insanity [of appellant’s brother] would not exculpate the appellant if he conspired with the principal or aided or abetted ³⁵⁴ him in the killing of the deceased * * *. If appellant so conspired or aided or abetted in the homicide, the mental irresponsibility of [his brother] could not be invoked to exonerate said appellant.

One may or could use an insane person as the agent of destruction — or conspire with such person to accomplish the homicide — just as guiltily as with a person of sound mind. The