Regle v. State

• Decision Date: 14 April 1970
• Docket Number: No. 275,275
• Citation: 9 Md.App. 346,264 A.2d 119
• Parties: Joseph James REGLE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 346

9 Md.App. 346

264 A.2d 119

Joseph James REGLE v. STATE of Maryland.

No. 275.

Court of Special Appeals of Maryland.

April 14, 1970.

Morris Topf, Hyattsville, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall State's Atty., and Joseph C. Sauerwein, and Asst. State's Atty., for Prince George's County, respectively, on brief for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

On September 28, 1968, Sergeant Frank Mazzone, a Maryland State Police officer working under cover, was advised by other police officers that Michael Isele, a police informer, had informed them that he had been invited by the appellant Regle to participate in a robbery. Mazzone immediately contacted Isele, whom he previously knew, and together they went to see the appellant. Isele introduced Mazzone to the appellant as a prospective participant in the planned robbery. After some discussion the appellant invited Mazzone to participate in the robbery. While appellant did not then specify the place to be robbed, he indicated to Mazzone that Richard Fields had been involved with him in planning the robbery, and that he would also participate in the crime. Appellant, Mazzone, and Isele then met with Fields and the robbery plan was outlined by appellant and Fields. The need for guns was discussed and appellant and Fields spoke of the necessity of killing two employees at O'Donnell's restaurant, the situs of the proposed robbery. The four men then drove in Isele's car to appellant's home where appellant phoned Kent Chamblee for the purpose of purchasing a shotgun. Thereafter, the men drove to Chamblee's home, purchased the gun from him, and tested it in his presence. While Chamblee knew that the shotgun was to be used 'for a job,' he did not accompany the others when they then drove to the restaurant to perpetrate the robbery. Upon arriving there, Mazzone told appellant that he first wanted to 'case' the restaurant. This being agreed, Mazzone and Isele went into the restaurant while appellant and Fields went to a nearby bar to await their return. Once inside the restaurant, Mazzone contacted police headquarters and requested assistance. Thereafter, he and Isele left the restaurant and rejoined appellant and Fields. While serveral police cars promptly responded to the scene, Mazzone found it necessary, in the interim, to reveal his identity as a police officer and to arrest appellant and Fields at gunpoint. At the same time he also arrested Isele in order 'to cover him.' After the arrest, appellant made an incriminating statement to the effect that he and Fields had planned the robbery and that he had invited Isele to participate in the crime.

Appellant, Fields, and Chamblee were thereafter jointly indicted for conspiracy to rob with a dangerous and deadly weapon and for carrying a deadly weapon openly with intent to injure. Appellant was separately tried by a jury, found guilty on both counts, and sentenced to twenty years on the conspiracy charge, and two years, concurrent, on the weapons offense.

The docket entries indicate that the conspiracy indictment against Chamblee was nol prossed prior to appellant's trial. It also appears that at his trial appellant established through the testimony of a police officer that Fields had been examined by State psychiatrists at the Clifton Perkins State Hospital and found 'not guilty by reason of being insane at the time of the alleged crime.' The State did not rebut the officer's testimony, although the record indicates that two of the State psychiatrists who had examined Fields were then present in court.

Against this background, appellant contends that since the indictment against Chamblee was nol prossed, only he and Fields were charged as conspirators; and that because Fields was found insane at the time of the commission of the crime and thus was not a person legally capable of engaging in a criminal conspiracy, his own conviction cannot stand since one person alone cannot be guilty of the crime of conspiracy.

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. Jones v. State, 8 Md.App. 370, 259 A.2d 807. 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. Wilson v. State, 8 Md.App. 653, 262 A.2d 91. In other words, as succinctly stated by the Supreme Court of New Jersey in State v. Carbone, 10 N.J. 329, 91 A.2d 571, 574, 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 long offender.' Clark and Marshall Crimes (6th Edition) Section 9.00. In short, it is the existence of the conspiracy which creates the danger. Dennis v. United States, 341 U.S. 494, 511, 71 S.Ct. 857, 95 L.Ed. 1137.

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,' Bloomer v. State, 48 Md. 521, 536, viz., if must be shown that at least two persons had a meeting of the minds-a unity of design and purpose-to have an agreement. Wilson v. State, supra; Jones v. State, supra. A formal agreement need not, however, be established; it is sufficient if the minds of the parties meet understandingly, so as to bring about an intelligent and deliberate agreement to do the acts contemplated. Clark and Marshall, Section 9.03. 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. Perkins on Criminal Law, pp. 537, 544; 16 Am.Jur.2d Conspiracy, Section 9; Wharton's Criminal Law and Procedure (Anderson Edition), Section 83; Clark and Marshall, Section 9.07 (footnote 11).

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 coconspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal. Hocheimer on Criminal Law (Second Edition) Section 290; Clark and Marshall, Section 9.07; Wharton's, Section 91; Perkins, p. 533. The validity of the general rule has been consistently recognized by the Court of Appeals. See State v. Buchanan, 5 H & J 317; Bloomer v. State, supra; Hurwitz v. State, 200 Md. 578, 92 A.2d 575. We recognized the rule in Wilson v. State, supra (footnote 9). 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 coconspirators are not guilty, a like finding as to him must be made. See 91 A.L.R.2d, at p. 703. But 'It is only where one is convicted and another or others are acquitted, resulting in a repugnancy upon the record, that the convicted conspirator may be discharged.' Berry v. State, 202 Ind. 294, 173 N.E. 705 cited with approval in Hurwitz v. State, supra.

Generally speaking, it would appear that so long as the disposition of the case against a coconspirator does not remove the basis for the charge of conspiracy, a single defendant may be prosecuted and convicted of the offense, even though for one reason or another his coconspirator is either not tried or not convicted. See the exhaustive collection of cases at 72 A.L.R. 1180-1192 and 91 A.L.R.2d 700-733. Consistent with this rule, the authorities all agree that the death of one conspirator does not of itself prevent the conviction of the other, where the conspiracy between them is shown by the evidence. In Hurwitz v. State, supra, a case in which all but one of the conspirators were granted immunity from prosecution on a ground not inconsistent with their participation in the conspiracy, the court held that such grant of immunity was not equivalent to acquittal and would not require reversal of the conviction of the one remaining conspirator. The same rule has been applied where one of two conspirators enjoyed diplomatic immunity and therefore could not be prosecuted for the conspiracy. Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir.). In Adams v. State, 202 Md. 455, 97 A.2d 281, it was held that conviction of one defendant in a conspiracy case was proper despite failure to convict any of the other conspirators where it was alleged and shown that there were persons unknown to the prosecution with whom the convicted defendant had conspired. And while the cases are generally divided on the question whether the entry of a nolle prosequi as to one of two alleged conspirators compels an acquittal of the remaining conspirator, the better reasoned view would appear to support the proposition that it does not, at least where the nolle prosequi was not entered without the coconspirator's consent after the trial had begun (which then would have amounted to an acquittal and precluded reindictment). See Greathouse v. State, 5 Md.App. 675, 249 A.2d 207. In Hurwitz, it was...