Mitchell v. State

Decision Date05 March 2001
Docket NumberNo. 66,66
Citation363 Md. 106,767 A.2d 844
PartiesAntoine Markee MITCHELL, v. STATE of Maryland.
CourtMaryland Court of Appeals

Peter F. Rose, Assistant Public Defender (Stephen E. Harris, Public Defender, and Mark Colvin, Assistant Public Defender, on brief), Baltimore, for petitioner.

Mary Ann Ince, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ. WILNER, Judge.

Petitioner was convicted in the Circuit Court for Prince George's County of a number of offenses, including conspiracy to commit second degree murder. The question before us is whether that is a crime in Maryland. The Court of Special Appeals held that it was. Mitchell v. State, 132 Md.App. 312, 752 A.2d 653 (2000). In the context of this case, we disagree.


Petitioner's convictions arose from a shooting that occurred on September 5, 1997. During that morning, the victim, Eddy Arias, received three pages on his pager and, in response to each, left his apartment to use the telephone, as there was no telephone in the apartment. As he reentered his apartment building after responding to the third page, he was attacked by two men at the bottom of the internal stairway, each armed with a handgun and each with a stocking mask over his face. Mr. Arias managed to break free and began to run up the stairs to his apartment, when he was shot in the back by one of the men. For purposes of this appeal, we take as a given that petitioner was one of the two men but that it was the other one, Gregory Ellis, who fired the shot. The State's theory was that the assailants' intent was to kill Mr. Arias and not simply to rob him.

Petitioner was charged in a multi-count indictment with a variety of offenses, including a count that was treated as charging conspiracy to commit first degree murder and one that more clearly charged conspiracy to commit second degree murder.1 At the end of the State's case, a judgment of acquittal was entered on the counts charging attempted first degree murder, conspiracy to commit first degree murder, and possession of a firearm by a convicted felon. Petitioner was convicted, however, of attempted second degree murder, first degree assault, conspiracy to commit second degree murder, conspiracy to commit first degree assault, and use of a handgun in the commission of a felony. Several of the convictions, among them the two for conspiracy, were merged, but petitioner was sentenced to a total of 46 years in prison, including 13 years for conspiracy to commit second degree murder.

Notwithstanding his failure to mount any jurisdictional challenge in the trial court to the count charging conspiracy to commit second degree murder or to object to the court's instruction to the jury on that count, petitioner claimed in the Court of Special Appeals that there was no such crime in Maryland. He argued there, as he argues here, that establishment of a conspiracy to commit murder necessarily establishes the element of premeditation that would make any murder emanating from the conspiracy first degree murder. It is not legally possible, he claims, for a person to conspire to commit a non-premeditated murder.

Regarding the argument as effectively challenging the jurisdiction of the trial court to render a judgment on the count, the Court of Special Appeals determined that it was one that could be raised initially on appeal and therefore addressed it. See Williams v. State, 302 Md. 787, 791-92, 490 A.2d 1277, 1279 (1985); Lane v. State, 348 Md. 272, 278, 703 A.2d 180, 183 (1997). The court found no merit in the argument, however, notwithstanding its view that the argument was "appealing on the surface" and "superficially seductive." Mitchell, supra, 132 Md.App. at 338, 353, 752 A.2d at 667, 676. Rather, the court concluded that it was legally and factually possible for a person to conspire to commit an unpremeditated murder. Its theory was that an agreement to kill a person could be arrived at "virtually instantaneously with the commission (or attempt) of that crime" and thus, despite its spontaneity, suffice to constitute a conspiracy but, because of its spontaneity, not suffice to constitute premeditation. Id. at 354, 752 A.2d at 676. Accordingly, in that circumstance (and perhaps in others that the court indicated might exist but did not attempt to define), it was legally possible to conspire to commit a non-premeditated second degree murder. Id. On that premise, and relying on decisions to that effect in United States v. Croft, 124 F.3d 1109 (9th Cir.1997) and United States v. Chagra, 807 F.2d 398 (5th Cir.1986), cert. denied, 484 U.S. 832, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987), it affirmed the challenged conviction.


There appear to be four approaches or lines of authority regarding the point in contention. One line, represented by the two Federal cases cited by the Court of Special Appeals, holds that it is, indeed, possible to conspire to commit second degree, non-premeditated, murder. A second line, emanating from California and Michigan, holds to the contrary, that the agreement constituting the conspiracy necessarily establishes premeditation and thus, as a matter of law, would elevate any resulting murder to first degree. A third line consists of cases in which defendants have, in fact, been convicted of conspiracy to commit second degree murder but in which the issue of whether that constitutes a crime was either not raised or, if raised, was not addressed. Finally, there are a few States in which the crime has been found to exist by statute. We shall explore each of these approaches, but shall end, as we must, with an analysis of underlying Maryland law.

The Fifth and Ninth Circuit Approach

In United States v. Chagra, supra, 807 F.2d 398, the defendant, along with others, was charged with conspiracy to murder a Federal judge, in violation of 18 U.S.C. §§ 1111 (murder), 1114 (killing a Federal officer or employee), and 1117 (conspiracy to murder). Initially, the charge was conspiracy to commit first degree murder, of which she was convicted. When that conviction was overturned on appeal because of faulty jury instructions dealing with premeditation, a superseding indictment was filed charging Chagra with conspiracy to commit second degree murder. Upon her conviction of that charge, she contended on appeal that no such crime existed because second degree murder is necessarily an unplanned murder, devoid of premeditation, and one cannot plan an unplanned event. Like petitioner here, she argued that the agreement necessary to a conspiracy and premeditation were "sufficiently the same that one cannot exist without the other." Id. at 401. That argument, the court held, was based on the incorrect assumption that, to constitute a conspiracy to commit first degree murder, the agreement itself must be premeditated, which was not the case.

What is required, the court said, is that the defendant agree with another to commit an illegal objective and that, at the time of the agreement, the defendant also have the state of mind required to commit the substantive crime. Although those two states of mind "are almost always one, or tend to collapse into one," the inquiries must be made separately. Id. The Government was entitled to prove that, at the moment of conspiratorial agreement, Chagra's intent to kill the judge "was impulsive and with malice aforethought." Id. An impulsive killing, it continued, nonetheless constitutes the intentional taking of life and, when coupled with malice aforethought, is second degree murder. In that setting, "the element of agreement and the requisite intent to commit the substantive offense were in harmony" and were not "mutually exclusive requirements of proof." Id. The court rejected the argument that one cannot plan an unplanned event by rejecting what it regarded as the underpinning of the argument—that one cannot possess the intent to kill impulsively at some future time. The focus of conspiracy, it said, was on the agreement and the defendant's intent at the time of the agreement, and, in that regard, the court observed that the state of mind "can certainly be to impulsively kill such as, `yes! let's kill the judge.'" Id. at 402.

The view of the Chagra court was accepted, without discussion, in United States v. Croft, supra, 124 F.3d 1109. The defendants, charged with conspiracy to murder the U.S. Attorney, in violation of 18 U.S.C. §§ 1111, 1114, and 1117, complained on appeal that the instructions to the jury omitted the element of premeditation. The court noted that § 1111(a) included both first and second degree murder, that the indictment did not allege premeditation, that it therefore charged only conspiracy to commit second degree murder, and, citing Chagra, that "it is logically possible to conspire to commit second degree murder." Id. at 1122-23. The Ninth Circuit court did not discuss any rationale for that view but, we presume, tacitly accepted the reasoning of the Chagra court.

So far as we can tell, Chagra and Croft are the only two currently viable cases actually holding, after some consideration of the issue, that conspiracy to commit second degree murder constitutes a common law crime. There are two other cases, however, that bear mention in this regard. In State v. Arnold, 98 N.C.App. 518, 392 S.E.2d 140 (1990), the defendant was convicted of second degree murder, as an accessory before the fact, and conspiracy to commit first degree murder. On appeal she argued that the conspiracy charge should have been dismissed "since it is legally impossible to conspire to commit second degree murder." Id. at 150. Despite that articulation of the complaint, however, the issue actually framed was not the one now before us, but seemed to be based more on an...

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