People v. Smith
| Decision Date | 20 January 1978 |
| Citation | 401 N.Y.S.2d 353,61 A.D.2d 91 |
| Parties | PEOPLE of the State of New York, Respondent, v. Linda SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathaniel A. Barrell, Buffalo, for appellant (Henrietta Wolfgang, Rosalie M. Stoll, Buffalo, of counsel).
Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (Judith Blake Manzella, Buffalo, of counsel).
Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.
MOULE, Justice Presiding.
Defendant appeals from a judgment of conviction entered upon a jury verdict which found her guilty of the crime of conspiracy in the first degree.
On September 12, 1975 James Butler, Margaret Alvey, Gladys Pounds and defendant were indicted for the crimes of conspiracy in the first degree and murder in the second degree in connection with the death of John Yuhas. On April 29, 1976 the court ordered separate trials of the defendants. Defendant's trial commenced on May 17, 1976 and on June 18, 1976 the jury returned a verdict of not guilty on the murder count; the jury was unable to reach a verdict on the conspiracy count. Thereafter, on August 4, 1976 defendant was retried on the conspiracy charge and found guilty.
At this second trial the prosecution relied primarily on the testimony of Mona Yuhas, widow of the victim, who did not testify at defendant's first trial inasmuch as she had fled the jurisdiction. Yuhas testified that she lived with her husband and her mother, Gladys Pounds. In July, 1975, Yuhas overheard a telephone conversation between Pounds and her sister, Margaret Alvey, who resided in Indiana, during which Pounds expressed her hatred of the victim and the fact that she wanted him killed. Pounds told Alvey that she was willing to pay $1,000.00 to have the victim done away with and Alvey replied that she would take care of it. Yuhas further testified that her sister, Alvey, telephoned her shortly thereafter to inform her that defendant, who is her niece, and James Butler were coming to Buffalo. Butler arrived in late July, 1975 and stayed at the Yuhas home for a couple of weeks, after which he moved into a house already occupied by defendant. On August 21, 1975 Alvey arrived in Buffalo and took up residence at the Yuhas home. During the evening of August 23, 1975 Alvey visited defendant and Butler at defendant's house and the three returned to the Yuhas home at approximately 9:00 P.M. Defendant and Butler left the house immediately thereafter, after which the victim, who slept in a separate bedroom because of his tubercular condition, retired for the evening. Yuhas and Alvey remained in the house talking when defendant and Butler returned at about 1:30 A.M. Yuhas then went upstairs to bed but she was awakened by her husband yelling, "What are you doing in my bedroom?" and as she went to see what was happening, defendant grabbed her, threw her back into her bedroom and told her to stop hollering. When she attempted to go to her husband's aid a second time she saw Butler on top of his bed, hitting him with a knife or club.
In addition to the testimony of Mona Yuhas, defendant's oral and written statements made to the police, as well as a tape recording of a statement made by her, were admitted into evidence. This evidence showed that defendant had received a telephone call from her mother, Alvey, who informed her that her grandmother, Pounds, wanted the victim killed and would pay between one and two thousand dollars to have it done; that Butler and defendant's mother came to an agreement whereby Butler would carry out the murder; that on the night of the murder, defendant and Butler went to the Yuhas home and that after Yuhas went to bed, Butler went upstairs to the victim's bedroom carrying a pool cue, gun and knife; that Butler distributed gloves to defendant and Alvey which they put on before the murder; that defendant heard yells and moans upstairs and restrained Yuhas from leaving her room; that she observed Butler in the victim's bedroom, saw blood on the floor and became ill; that Butler directed her to begin cleaning up and that thereafter they drove the victim's body, in his own car, to the Thruway, where they left the car and the body. In her recorded statement defendant stated that although she knew of the plan to kill the victim and Butler's agreement to carry out the plan, she did not know that Butler himself intended to commit the murder.
Finally, the Yuhas' neighbors testified that they heard activity and noises coming from the Yuhas home at approximately 3:00 A.M. on the morning of the murder. On August 24, 1975 the body of the victim was discovered in the trunk of his abandoned car. An autopsy revealed three bullet wounds to the head and eight stab wounds to the chest. Following defendant's testimony in her own behalf, by which she contradicted many of the facts that she had stated in her oral and written statements, the jury returned a verdict of guilty on the conspiracy charge.
Defendant first contends that her acquittal on the murder charge in the first trial requires an acquittal on the conspiracy to murder charge in her second trial and, therefore, that retrial on the conspiracy charge was improper.
The statute addressing this issue is Criminal Procedure Law, § 310.70 which reads in pertinent part:
"1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, or with respect to one or more but not all of the defendants, the court must proceed as follows:
(a) If the possibility of ultimate agreement with respect to the other submitted offenses or defendants is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60, the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict:
2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:
(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense . . . ."
The statute permits retrial for any offense upon which the jury was unable to agree unless a verdict of conviction thereon would have been "inconsistent" with a verdict actually rendered with respect to some other offense. Therefore, in order to determine whether defendant's retrial on the conspiracy charge was proper, it is necessary to analyze whether a verdict of guilty on the conspiracy charge in the first trial would have been "inconsistent" with the verdict of acquittal on the murder charge in that trial.
A reading of the charge in the first trial shows that the court instructed the jury that it was to return a verdict of guilty or not guilty on each count of the indictment. Moreover, the court charged the elements constituting the crime of conspiracy and those elements constituting the crime of murder. In addition, the jury was instructed that it could find defendant guilty of the murder count under a theory of accessorial liability pursuant to Penal Law, § 20.00. If any conclusion may be reached from a reading of the charge, it is that the jury was instructed that it was to consider separate and distinct offenses, which conspiracy and the substantive crime of murder are (see People v. Epton, 19 N.Y.2d 496, 507-508, 281 N.Y.S.2d 9, 17-18, 227 N.E. 829, 835-836; People v. Potwora, 44 A.D.2d 207, 354 N.Y.S.2d 492) and that it was entitled to return different verdicts on each count if it so found. 1
Certainly, under the facts of this case as taken from the record of the second trial, which evidence was probably more compelling for conviction than that in the first trial inasmuch as the People's primary witness, Mona Yuhas, was available to testify, there is a reasonable possibility that a jury could have found defendant guilty of conspiracy and not guilty of murder. Under Penal Law, § 105.15, "a person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." A person cannot be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy (Penal Law, § 105.20). Here, the jury in the first trial might have found sufficient evidence showing that defendant did agree with her co-conspirators to engage in or cause the murder of John Yuhas and that an overt act, separate and apart from those acts constituting the substantive crime of murder, was committed by one of the conspirators. 2 Therefore, it would have been reasonable for the jury to return a verdict of guilty on the conspiracy charge and not guilty on the murder charge and such verdicts being logically consistent under the instructions given, retrial on the conspiracy charge under CPL, § 310.70, would be proper.
In support of this determination is an application of the test to determine whether apparently contradictory verdicts in the same trial on two different counts of an indictment are merely inconsistent, and can stand, or are repugnant and cannot (People v. Speach, 49 A.D.2d 210, 213, 374 N.Y.S.2d 210, 213; People v. Bullis, 30 A.D.2d 470, 294 N.Y.S.2d 331). That test states that ...
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