Gardner v. State

• Decision Date: 13 December 1979
• Docket Number: No. 16,16
• Citation: 286 Md. 520,408 A.2d 1317
• Parties: Roger Edward GARDNER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 520

286 Md. 520

408 A.2d 1317

Roger Edward GARDNER v. STATE of Maryland.

No. 16.

Court of Appeals of Maryland.

Dec. 13, 1979.

Paul Mark Sandler, Baltimore (David Freishtat and Freishtat, Schwartz & Sandler, Baltimore, on the brief), for appellant.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

In this case, the primary issue we are asked to decide is whether one conspirator's conviction may stand where the sole co-conspirator is acquitted at a subsequent trial.

The facts are not in substantial dispute and may be set forth briefly. Gardner was a contract killer who conspired with Ralph Lubow to murder Morton Hollander and Alvin Blum. Gardner decided to subcontract the killing of Blum to one Timothy McDonald for $10,000. Gardner had several meetings with McDonald and gave him $60.00 for expense money, a gun, and ammunition to effect the killing. Gardner also told McDonald that he (Gardner) would first kill Hollander and that if this did not create the desired result, McDonald would be directed to kill Blum. However, if McDonald was not called upon to kill Blum, McDonald would be paid $3,000 in any event. McDonald later learned from Gardner that Ralph Lubow was directing the operation and met with Lubow who promised to pay him $2,500. At a subsequent meeting, he did in fact pay McDonald $500.00. Gardner and Lubow were arrested and charged ¹ with criminal misconduct in a five count indictment which included two counts of conspiracy to commit murder, two counts of solicitation to commit murder and a handgun violation. Gardner requested a separate trial and was tried without a jury, several months before Lubow in the Circuit Court for Howard County. As part of his defense, Gardner offered expert testimony in an effort to prove that Lubow was insane at the time of the alleged conspiracy and hence there could be no conspiracy. The State in rebuttal presented expert and lay testimony. The trial judge, after denying Gardner's motions for judgment of acquittal, specifically rejected Gardner's defense that Lubow was legally insane and that there was no meeting of the minds. The trial judge then found Gardner guilty (1) of conspiring with Lubow to commit the murder of one Morton Hollander, (2) conspiring with Lubow to commit the murder of Alvin Blum, and (3) soliciting Timothy McDonald to commit the murder of one Alvin Blum. On March 21, 1978 Gardner was sentenced to a term of five (5) years imprisonment on each of the three counts, to be served concurrently. He appealed to the Court of Special Appeals.

Several months later, Lubow was tried before a jury in the Circuit Court for Howard County. The trial judge granted Lubow's motion for acquittal as to the count charging conspiracy with Gardner to commit the murder of Morton Hollander; the jury found Lubow not guilty by reason of insanity on the remaining counts of conspiracy to commit the murder of Alvin Blum and solicitation to commit the murder of Alvin Blum.

Gardner's convictions were affirmed by the Court of Special Appeals. Gardner v. State, 41 Md.App. 187, 396 A.2d 303 (1979). We granted his petition for certiorari to review the two questions presented:

1. Whether the subsequent acquittal of Gardner's alleged co-conspirator, Ralph Lubow, renders null and void Gardner's conviction for conspiracy.

2. Whether Gardner's conviction for solicitation to murder was supported by sufficient evidence.

Gardner contends before us, as he did before the intermediate appellate court, that his convictions for conspiracy were rendered null and void when a jury subsequently found his alleged co-conspirator not guilty by reason of insanity. Thus, he contends there could be no meeting of the minds between him and Lubow and his conviction is inconsistent with the verdict in Lubow's trial.

The State counters with two contentions. First, the State argues that when two are charged with conspiracy and tried separately the conviction of one is not inconsistent with the acquittal of the other. Second, it maintains that the insanity verdict at Lubow's trial does not necessarily mean that an illegal meeting of the minds did not occur.

I.

The crime of conspiracy requires "a combination of two or more persons, (who) by some concerted action (seek) to accomplish some criminal or unlawful purpose; or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." Lanasa v. State, 109 Md. 602, 607, 71 A. 1058, 1060 (1909); State v. Buchanan, 5 H. & J. 259 (1821). Concerted action in conspiracy means that there can be no crime without the consent of two or more minds forming a criminal intent. The crime is complete without any overt act and may be proved by circumstances giving rise to an inference of common design. The gravamen of the crime is the illegal scheme or design harbored by at least two persons.

Thus, it is settled that the crime of conspiracy necessarily requires the participation of at least two people. Where the participation of only one is shown the crime is incomplete and a conviction as to him is void. This proposition is recognized in the law as the rule of consistency: that "As one person alone cannot be guilty of conspiracy, when all but one conspirator are acquitted, conviction of the remaining conspirator cannot stand." Hurwitz v. State, 200 Md. 578, 92 A.2d 575, 581 (1952). The rule developed many years ago when the practice was to try all persons charged with the crime of conspiracy together. Under such circumstances, common sense dictated that verdicts based on the same evidence and circumstances should be consistent. Accordingly the rule has developed primarily regarding joint trials. E.g., Romontio v. United States, 400 F.2d 618 (10th Cir. 1968); Lubin v. United States, 313 F.2d 419 (9th Cir. 1963); State v. Smith, 117 Ark. 384, 175 S.W. 392 (1915); Berry v. State, 202 Ind. 294, 173 N.E. 705 (1930); W. LaFave and A. Scott, Jr., Criminal Law § 62, at 488 (1972); 16 Am.Jur.2d, Conspiracy, § 33 (1964).

However, while the evidence at the trial of a conspirator must show that he and at least another are guilty of forming an illegal scheme, it is not necessary that more than one person be convicted. Thus, the quantum of proof is sufficient at the trial of A when the evidence convinces the trier of fact beyond a reasonable doubt that A and B agreed with one another to accomplish some criminal purpose or to accomplish some purpose, not in itself criminal, by criminal or unlawful means. The rule of consistency has been held not to apply when A has been convicted of conspiracy and B has been granted immunity, Hurwitz, 200 Md. 578, or when B is dead, State v. Davenport,227 N.C. 475, 42 S.E.2d 686 (1947), unknown, Adams v. State, 202 Md. 455, 97 A.2d 281 (1953), Rev'd on other grounds, sub nom. Adams v. Maryland, 347 U.S 179, 74 S.Ct. 442, 98 L.Ed. 608 (1954), untried, DeCamp v. United States, 56 App.D.C. 119, 10 F.2d 984 (1926), unapprehended, Rosenthal v. United States, 45 F.2d 1000 (8th Cir. 1930), or unindicted, United States v. Monroe, 164 F.2d 471 (2d Cir. 1947) Cert. denied, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed. 1113 (1948). In these and other situations in which there has been no judicial determination of the guilt or innocence of the alleged co-conspirators, i.e., no adjudication on the merits, there is nothing incongruous or inconsistent about convicting a sole defendant if there is sufficient evidence of the conspiracy. People v. Bryant, 409 Ill. 467, 100 N.E.2d 598 (1951); People v. Berry, 84 Mich.App. 604, 269 N.W.2d 694 (Ct.App. 1978).

Gardner argues that the situation is different when one conspirator is convicted and his co-conspirator is acquitted; he contends a repugnancy in the verdicts arises which the law will not allow to subsist. He urges us to apply the rule of consistency to separate trials.

This Court has never been squarely presented with the issue of whether the rule of consistency should be applied to separate trials of co-conspirators. Gardner contends that logic and fundamental fairness requires that the rule be so applied and relies on the early case of Bloomer v. State, 48 Md. 521 (1878) to support his view. In Bloomer, Bloomer and others were indicted for conspiracy to defraud a railroad company through the fraudulent use of passes and tickets. Bloomer, in an effort to rebut the evidence of conspiracy against him, offered in evidence the record of acquittal of his alleged co-conspirators by a New Jersey court. The court stated that "as conspiracy is the consent of two or more minds, where two only are charged, the acquittal of one must be the acquittal of both." However, the court held that "(t)his must of course mean an acquittal by a court of competent jurisdiction, in the same State in which the subsequent prosecution was pending, and for the same offense." Because the prior acquittal was by a New Jersey court, this Court found that the rule of consistency was not applicable "since the trial and acquittal in New Jersey, could not deprive this State of jurisdiction over offenses committed within its borders." Id. at 536. Thus, it would appear that this Court by dicta stated in Bloomer that the rule of consistency would apply to separate trials where there had been a prior acquittal of one conspirator in this State and the "subsequent prosecution was pending" in this State.

Gardner cites other cases to buttress his contentions. In State v. Tom, 12 Dev. 569, 13 N.C. 569 (1830) appellant was charged with conspiracy to murder. His alleged co-conspirator was acquitted prior to appellant's conviction. The court held that where two are charged with conspiracy and one is acquitted, the conviction of the other cannot stand. The court analogized its holding to the rule which discharged an accessory where the principal had been acquitted. ²

In...