Harris v. State

• Decision Date: 01 May 1990
• Docket Number: No. 1212,1212
• Citation: 572 A.2d 573,82 Md.App. 450
• Parties: Brent Marlowe HARRIS v. STATE of Maryland. Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 450

82 Md.App. 450

572 A.2d 573

Brent Marlowe HARRIS v.STATE of Maryland.

No. 1212 Sept. Term 1989.

Court of Special Appeals of Maryland.

May 1, 1990.

Nancy S. Forster, Asst. Public Defender(Alan H. Murrel, Public Defender on the brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for appellee.

Argued before MOYLAN, BLOOM and CATHELL, JJ.

MOYLAN, Judge.

This appeal provides the opportunity to take the thoroughly analyzed and well considered dicta of Chief Judge Murphy (now Chief Judge of the Court of Appeals) in Regle v. State, 9 Md.App. 346, 264 A.2d 119(1970), and to elevate it (part of it, at any rate) to the status of a square holding.That dicta and this holding concern the effect of a nolle pros of a conspiracy charge against one co-conspirator upon the trial of the only remaining co-conspirator.

In most general terms, the issue is: What action, if any, taken in some other place may so eradicate the criminal mens rea of a co-conspirator as to preclude a contrary finding as to that mens rea in the present case?The first level of inquiry will examine the preclusive effect, if any, of a nolle pros, simply as a nolle pros, of a conspiracy charge against a co-conspirator.

The next level of inquiry quickly becomes: But does it make any difference if the nolle pros was one "amounting to an acquittal"?Obviously, it makes a great deal of difference to the co-conspirator himself, but that is immaterial.The more pertinent question is, does it make any difference in terms of preclusive effect upon the present case?Much strong language from the case law, uttered (and perfectly correct) in the context of that defendant's future fortunes, must be significantly devalued when uncritically applied to the very different situation of the present appellant.The earlier cases generally gave full preclusive effect to nolle prosses (and other dispositions) that "amounted to acquittals."The later and better reasoned cases, however, persuasively point out that a more rational distinction may be found not there but at the next plateau of analysis.

The reliance of the earlier case law on the significance of an "acquittal" per se was the understandable product of linguistic overgeneralization, the failure to distinguish between acquittals on the merits and acquittals generally.More finely tuned examination has pointed out that the pertinent distinction should be between an acquittal on the merits, because it has probative force as to common issues of fact inherent in the charges, and a technical acquittal, because it generally has no such probative force.This is as far up the ladder of analysis as it is necessary to go to decide the present appeal.

At a yet higher rung of abstraction, however, Gardner v. State, 286 Md. 520, 408 A.2d 1317(1979), strongly suggests, but holds only in part, that all of this painstaking inquiry may be conveniently jettisoned and that even an acquittal of the co-conspirator on the merits will have no preclusive effect on the present prosecution, if that acquittal occurred in some other trial rather than in a joint trial with the present defendant.We raise the Gardner implications as "a general alert," but reiterate that it is not necessary to resolve them in order to decide the present appeal.

As we begin, what is our larger perspective?The Maryland law is in a state of flux.Our affirmance of the conspiracy conviction in this case does, to be sure, relieve the State of much of the wooden reasoning and crack-of-doom pronouncements (very vexing when taken out of context) that have frequently plagued the State's efforts to show a co-conspirator's mens rea.This proper (but merely tactical) relief to the State, however, is modest and minimal compared to the strategically sweeping promise of total annihilation arguably portended by Gardner v. State, supra.It is the difference between a scalpel and a broadsword.An exploration of the full implications of Gardner, however, is a question and answer for another day.

The appellant, Brent Marlowe Harris, was convicted by a Kent County jury, presided over by Judge Elroy G. Boyer, of both the distribution of cocaine and conspiracy to distribute cocaine.Upon this appeal, he raises the following five contentions:

1.That because of the nolle pros of the co-conspirator, the evidence was not legally sufficient to sustain the appellant's conviction for conspiracy;

2.That he should not have been punished separately for the distribution and the conspiracy;

3.That Judge Boyer erroneously denied him the opportunity to show the prior inconsistent statement of a State's witness;

4.That Judge Boyer erroneously permitted the State to call a rebuttal witness; and 5.That Judge Boyer erroneously refused to strike a juror for cause.

The appellant does not dispute the fact that the evidence establishes that both he and Donnell Wilson were in the business of selling cocaine and that the two of them, in concert, sold a $50 baggie of cocaine to undercover State Trooper John Bollinger, on October 26, 1987.The thrust of the appellant's sufficiency argument, going only to the conspiracy conviction, is that Donnell Wilson, as part of a plea bargain, entered guilty pleas to two charges of distributing narcotics, in return for which the State nolle prossed the conspiracy charge.The appellant argues that this amounts to a judicial determination that Donnell Wilson did not possess a conspiratorial mens rea and could not, therefore, have been the indispensable second party for the "meeting of criminal minds."

The elements of conspiracy and the mens rea of conspiracy were so thoroughly and articulately analyzed in Regle v. State, supra, that little more is necessary than to restate that exposition of law here.Judge Murphy both defined conspiracy and described the critical characteristic that makes it a crime in its own right, in Regle v. State, supra, at 9 Md.App. 350, 264 A.2d 119:

"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....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....In other words, as succinctly stated by the Supreme Court of New Jersey in State v. Carbone91 A.2d 571, 574, [ (1952) ] 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.' "(Citations omitted).

Concert of action is required.For there to be a meeting of the minds--to wit, a criminal combination--two minds must each possess the requisite criminal or conspiratorial mens rea.Judge Murphy discussed the necessity of mens rea multiplied by two:

"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,' ... 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....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."(Citations omitted).

Id.9 Md.App. at 351, 264 A.2d 119.

At issue is not the proving of the appellant's mens rea but the proving of the co-conspirator's mens rea.In this regard, our concern is with the fact of the co-conspirator's mens rea and not with the legal fate of the case against him.Whether the co-conspirator has or has not been prosecuted does not concern us.Whether the co-conspirator can or cannot be prosecuted does not concern us.We are concerned only with whether it has somehow been established that the co-conspirator did not or could not form the mens rea necessary for guilt of conspiracy.As Judge Murphy explained, it would be "repugnant" for a defendant to be found guilty of a criminal meeting of the minds when the other necessary mind had already been found, in some other forum, not to have had a meeting with the present appellant's mind.The repugnancy would be not in disparate verdicts but in disparate and inconsistent factual determinations.When looking, therefore, to the circumstances of what happened to or has been determined about the co-conspirator, the focus is upon the fact of his mens rea.It is not upon the legal disposition of the case against him, except insofar as that disposition necessarily implies something with respect to his mens rea.Judge Murphy explained, at 9 Md.App. 351-352, 264 A.2d 119:

"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....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 agreement; 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...