Garcia v. State

PRENTICE, J. Defendant was convicted in a trial by jury of conspiracy to commit murder, . . . and sentenced to twenty years imprisonment. Her sentence was suspended and she was placed on five years probation. On appeal she raises the following issue . . . whether the defendant can be convicted of conspiracy when the only person with whom the defendant conspired was a police informant who only feigned his acquiescence in the scheme. . . .

At the close of all of the evidence the defendant moved for a directed verdict of acquittal alleging that the State had failed to prove that there was an "agreement" between the defendant and the alleged co-conspirator. The motion was denied by the trial court, which denial the defendant now assigns as error.

The evidence introduced at trial consisted of the following: On September 30, 1977, State's witness, Allen Young, was first contacted by the defendant with regard to certain marital problems that she was having. She stated that her husband constantly beat her and her children and that she "couldn't take it any longer" -- that she wanted her husband killed. Young suggested that she go to the police or see an attorney, but she refused, stating that to do so would only make matters worse. Young then mentioned the sum of $ 5000.00 in an attempt to discourage her. She responded that the amount was out of the question and ended the conversation. Young testified that he had not taken the defendant seriously at that point, because he thought that she was simply upset and needed to "blow off steam." He received a second call from the defendant on October 4, 1977. During this conversation, the defendant said that she had $ 200 in cash and wanted to know whether he had found anyone to kill her husband. Young responded that he did not think he could help her since he did not know anyone who was in that line of "business." She asked him to look around anyway. Young testified that, although he did not directly promise to find someone for her, he probably left her with the impression that he would do so. Shortly after talking with the defendant, Young went to the Whiting Police Department and discussed the matter with two detectives. He offered to call the defendant and let them listen and record the conversation, which they did. During that conversation, Young again asked the defendant if she wanted him to help her find someone to kill her husband, and she responded affirmatively. Young replied that he would try to find someone. Several more conversations took place between the defendant and Young. On each occasion the defendant reaffirmed her desire to have her husband killed, and she rejected the idea of going to the police instead. At their final meeting, Young, accompanied by a plain-clothed detective, introduced the defendant to the detective, stating that here was a man who might be willing to do the job. The defendant then produced $ 200, a picture of her husband, and a record of his daily habits and gave them to the detective. She agreed to pay the balance of the contract price when the "job" was completed. Defendant was subsequently arrested.

At trial, Young testified that he only feigned his acquiescence in the plan and at no time did he intend to actually carry it out.

The issue is whether the conspiracy section of our new penal code adopts the Model Penal Code's "unilateral" concept or whether it retains the traditional "bilateral" concept.

The bilateral concept is the traditional view of conspiracy as derived from common law. It is formulated in terms of two or more persons agreeing to commit a crime, each with intent to do so. In cases where the person or persons with whom the defendant conspired only feigned his acquiescence in the plan, the courts have generally held that neither person could be convicted of conspiracy because there was no "conspiratorial agreement." . . . Reacting to criticism of this view-point, the drafters of the Model Penal Code, though not without internal disagreement, adopted a "unilateral" concept, as follows: . . .

"Section 5.04. Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy.

(1) . . . it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:

(a) he or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic which is an element of such crime, if he believes that one of them does; or

(b) the person whom he solicits or with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime."

In explanation of their new approach, the Drafters of the Model Penal Code commented:

"Unilateral Approach of the Draft. The definition of the Draft departs from the traditional view of conspiracy as an entirely bilateral or multilateral relationship, the view inherent in the standard formulation cast in terms of 'two or more persons' agreeing or combining to commit a crime. Attention is directed instead to each individual's culpability by framing the definition in terms of the conduct which suffices to establish the liability of any given actor, rather than the conduct of a group of which he is charged to be a part -- an approach which in this comment we have designated 'unilateral.'

"One consequence of this approach is to make it immaterial to the guilt of a conspirator whose culpability has been established that the person or all of the persons with whom he conspired have not been or cannot be convicted. Present law frequently holds otherwise, reasoning from the definition of conspiracy as an agreement between two or more persons that there must be at least two guilty conspirators or none. The problem arises in a number of contexts. . . .

"Second: Where the person with whom the defendant conspired secretly intends not to go through with the plan. In these cases it is generally held that neither party can be convicted because there was no 'agreement' between two persons. Under the unilateral approach of the Draft, the culpable party's guilt would not be affected by the fact that the other party's agreement was feigned. He has conspired, within the meaning of the definition, in the belief that the other party was with him; apart from the issue of entrapment often presented in such cases, his culpability is not decreased by the other's secret intention. True enough, the project's chances of success have not been increased by the agreement; indeed, its doom may have been sealed by this turn of events. But the major basis of conspiratorial liability -- the unequivocal evidence of a firm purpose to commit a crime -- remains the same. . . . MPC section 5.03, Comments. . . .

This concept has been adopted, in whole or in part, in at least 26 states and is under consideration in most of the remaining states. . . .

In 1976, our Indiana Legislature repealed the existing conspiracy statute and adopted Ind. Code section 35-41-5-2 . . . which reads as follows:

"Sec. 2. . . . (c) It is no defense that the person with whom the accused person is alleged to have conspired:

"(1) has not been prosecuted;
"(2) has not been convicted;
"(3) has been acquitted;
"(4) has been convicted of a different crime;
"(5) cannot be prosecuted for any reason; or
"(6) lacked the capacity to commit the crime."

The adopted statute is similar in all respects relevant herein to the final draft proposed by the Criminal Law Study Commission. The comments accompanying that draft state that the present law is not sought to be changed, and the defendant's position is that the Legislature did not adopt the unilateral concept in the act under which she was tried and convicted.

We are unable to determine with certainty what the commission intended by this comment, in other words, whether the enactment would merely restate the definition, without changing the result, or whether the law relative to the offense, except for the elimination of enumerated defenses, would remain unchanged. If the former was intended by the commentor, it can only be viewed as a mental lapse and proofreading oversight; as it is clear upon the face of the act that defenses available under the multilateral concept were to be eliminated. The inclusion of the "catch-all" sub-proviso (5) can leave no doubt. Clearly "any reason," as recited therein, includes the absence of criminal culpability on the part of a co-conspirator -- including a sole co-conspirator. The words "agrees" and "agreement" have not been used as words of art denoting a "meeting of the minds" and "contract." Rather, the former is descriptive of the defendant's state of mind at the time he communicated with another in furtherance of the felony; and the latter refers to the defendant's understanding.

Defendant has cited us to numerous cases supporting the bilateral concept requiring "concurrence of sentiment and cooperative conduct in the unlawful and criminal enterprise;" however, those cases were not decided under statutes remotely similar to our own. She has distinguished those cases upholding the unilateral concept upon the basis of better articulated legislative commentary or differences in the wording of the statute under attack which we do not perceive to be material. . . . It is not persuasive in the light of the express wording of the entire enactment.

We find no reversible error. The judgment of the trial court is affirmed.