Garcia v. State

• Decision Date: 11 September 1979
• Docket Number: No. 478S58,478S58
• Citation: 271 Ind. 510,394 N.E.2d 106
• Parties: Shirley GARCIA, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 106

394 N.E.2d 106

271 Ind. 510

Shirley GARCIA, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 478S58.

Supreme Court of Indiana.

Sept. 11, 1979.

Thomas D. Ryan, East Chicago, for appellant; Jay N. Given, East Chicago, of counsel.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant was convicted in a trial by jury of conspiracy to commit murder, a class A felony, Ind. Code § 35-41-5-2 (Burns 1979), and sentenced to twenty years imprisonment. Her sentence was suspended and she was placed on five years probation. On appeal she raises the following issues:

(1) 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.

(2) Whether the trial court erred in failing to instruct the jury on the potential penalties upon conviction of the defendant.

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 stem." 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.

ISSUE I

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." See, e. g., United States v. Chase, (4th Cir. 1967) 372 F.2d 453, 459, cert. den., 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626; Sears v. United States, (5th Cir. 1965) 343 F.2d 139, 142; King v. State, (1958) Fla., 104 So.2d 730; People v. Atley, (1974) 392 Mich. 298, 220 N.W.2d 465, 471; Regle v. State, (1970) 9 Md.App. 346, 264 A.2d 119; Moore v. State, (1974) Miss., 290 So.2d 603, 605; Johnson v. Sheriff, Clark County, (1975) 91 Nev. 161, 532 P.2d 1037, 1038; State v. Mazur, (1978) (App.), 158 N.J.Super. 89, 385 A.2d 878; State v. Horton, (1969) 275 N.C. 651, 170 S.E.2d 466, 470; Delaney v. State, (1932) 164 Tenn. 432, 51 S.W.2d 485, 486-487; Odneal v. State, (1931) 117 Tex.Cr. 97, 34 S.W.2d 595; Woodworth v. State, (1886) 20 Tex.App. 375. Reacting to criticism of this viewpoint, the drafters of the Model Penal Code, though not without internal disagreement, ¹ adopted a "unilateral" concept, as follows:

"Section 5.03. Criminal Conspiracy.

"(1) Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

"(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

"(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime."

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

"(1) Except as provided in Subsection (2) of this Section, 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. The result would be the same under the Draft if the only co-conspirator established a defense of renunciation under Section 5.03(6). While both the Advisory Committee and the Council support the Draft upon this point, it should be noted that the Council vote was 14-11, the dissenting members deeming mutual agreement on the part of two or more essential to the concept of conspiracy." (Our emphasis)

MPC § 5.03, Comments at pp. 104-105.

The Drafters further stated that the only basis for the old rule was a "strict doctrinal approach toward the conception of a conspiracy as a necessarily bilateral relationship." In effect, the Drafters adopted a new definition of conspiracy, one which measures the culpability of each defendant individually.

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. See, Note, Conspiracy: Statutory Reform Since the Model Penal Code, 75 Col.L.R. 1122, 1125 (1975).

In 1976, our Indiana Legislature repealed the existing conspiracy statute ² and adopted Ind. Code § 35-41-5-2 (Burns 1979), to be effective October 1, 1977, and which reads as follows:

"35-41-5-2 Conspiracy

"(Sec. 2.) (a) A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony. A conspiracy to commit a felony is a felony...