State v. Moffett
| Decision Date | 10 February 2000 |
| Docket Number | No. 99-1769-CR., No. 99-1768-CR |
| Citation | 608 N.W.2d 733,233 Wis.2d 628,2000 WI App 67 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Melvin L. MOFFETT, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Jerrell I. DENSON, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, with David J. Becker, assistant attorney general.
On behalf of the defendant-respondent Melvin Moffett, the cause was submitted on the brief of Patrick J. Stangl of Coaty & Stangl, S.C. of Madison.
On behalf of the defendant-respondent Jerrell I. Denson, the cause was submitted on the brief of Joseph L. Sommers of Madison.
Before Eich, Vergeront and Roggensack, JJ.
¶ 1.
The State filed an information charging Jarrell Denson and Melvin Moffett with attempted first-degree intentional homicide (as parties to the crime) and with conspiracy to commit first-degree intentional homicide of the same intended victim. Both defendants moved to dismiss the conspiracy charge, arguing that WIS. STAT. § 939.72(2) (1997-98),2 which provides that no person may be convicted "for conspiracy and . . . as a party to the crime which is the objective of the conspiracy," barred prosecution for both offenses. The circuit court agreed and ordered the State to amend its information to drop one of the charges. The State appeals, arguing that the dual charges do not violate the statute. We agree and reverse the circuit court's order.
¶ 2. Denson and Moffett, together with Nancy Kellogg-Bowman, planned to kill Nancy's husband, Eric Bowman. The plan was that the three of them would furnish a gun to a person named "Zake," who was to gain entry to Bowman's house and murder him in his sleep. Instead of killing Bowman, however, Zake only wounded him and, as we have said, Moffett and Denson were charged with conspiring to murder Bowman and also as parties to his attempted murder.
¶ 3. WISCONSIN STAT. § 939.72, which we have summarized above, is entitled "No conviction of both inchoate and completed crime," and provides as follows:
A person shall not be convicted under both:
(Emphasis added.)
[1]
¶ 4. Relying largely on State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), the circuit court concluded that WIS. STAT. § 939.72(2) applied to the charges at issue because attempted murder is a "substantive" (e.g. choate) crime, which cannot be charged together with the inchoate offense of conspiracy. We review that conclusion de novo. See State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311 (Ct. App. 1987) ().
[2]
¶ 5. Our independent review of the facts and relevant law leads us to disagree with the circuit court. The information charged defendants with (1) being parties to the crime of attempted first-degree intentional homicide and (2) conspiracy to commit first-degree intentional homicide. By definition, both are inchoate crimes. WISCONSIN STAT. ch. 939, the "general crimes" chapter of the Criminal Code, contains several sections, one of which is "INCHOATE CRIMES." In this section appear the offenses of "Solicitation" (WIS. STAT. § 939.30), "Conspiracy" (WIS. STAT. § 939.31) and "Attempt" (WIS. STAT. § 939.32). There is nothing unclear or tentative about the legislature's classification of both conspiracy and attempt as inchoate offenses; and because WIS. STAT. § 939.72 bars only simultaneous convictions for an inchoate and a completed crime, we do not see how the circuit court's decision can stand.3 ¶ 6. As indicated, the circuit court felt that the supreme court's 1964 decision in State v. Nutley had the effect of designating attempt as a "substantive" or choate offense, despite the contrary statutory classification, because, at one point in its decision—in a section considering whether the defendants' liability was predicated on their role as "conspirators"—the Nutley court described the offense of attempted first-degree homicide as "a substantive crime." Id.,24 Wis. 2d at 561,129 N.W.2d at 170. The defendants in Nutley had been found guilty—as parties to the offenses—of murdering one police officer and attempting to murder a second. The supreme court concluded that the evidence was sufficient to convict both defendants of both offenses under what it described as the "complicity" or "conspiracy" theory of the party-to-the-crime statute, WIS. STAT. § 939.05(2). As the court explained, the statute renders a person "vicariously liable for the substantive crime of another [person]" under several circumstances. Id. at 555. The statute provides that persons "concerned in the commission of a crime" are considered as "principals" in the offense and may be charged and convicted of the crime along with the actual perpetrator. And it states that a person is "concerned in the commission of a crime" if he or she:
¶ 7. The Nutley defendants argued that if their liability as parties to the crimes was predicated on their having agreed (or "conspired") to commit them, then the life sentences they received were excessive as a matter of law because WIS. STAT. § 939.31, which defines the crime of conspiracy, indicates that a sentence for one convicted of a conspiracy to commit a crime for which the penalty is life imprisonment, may not exceed thirty years. The supreme court rejected the argument. It noted that if the defendants had agreed to kill the two officers and "did only one thing to carry out this plan but short of shooting to kill or to attempt to kill," then they could have been convicted of conspiracy under § 939.31, and the sentencing limitations of that statute "would have been relevant." Nutley, 24 Wis. 2d at 561. According to the court, the Nutley case presented an entirely different situation. The defendants in Nutley "were convicted of a substantive crime [e.g., attempted murder], in part, at least, on the theory that they were conspirators, and hence were guilty, as principals, of the crimes charged." Id. In other words, the Nutley defendants were not charged or convicted of the crime of conspiracy under § 939.31; rather, they were convicted of being parties to the crime of murder (and attempted murder) under WIS. STAT. § 939.05(2), and, as persons "concerned in those crimes" because of their agreement (or "conspiracy"), the law considers them guilty of the crimes as if they had "directly committed" them.
[3, 4]
¶ 8. There is, in short, nothing in Nutley to indicate precisely what the court meant by the term "substantive," or that it intended by the incidental use of that word to classify the crime of attempt as a choate offense, contrary to the plain provisions of WIS. STAT. § 939.31. Indeed, as indicated, that statute was not before the Nutley court (other than very indirectly, as we have just indicated); the issue in that case concerned the "conspiracy" or "complicity" elements of the party-to-the-crime statute, WIS. STAT. § 939.05. We think, therefore, that the circuit court's reliance on Nutley as controlling here was misplaced. Moffett and Denson were charged with conspiring (with Bowman's wife) to murder Bowman. The information plainly states that the objective of their conspiracy was to kill him. As a result, neither WIS. STAT. § 939.71(2), which bars conviction of both conspiracy and the "crime which is the objective of the conspiracy," nor WIS. STAT. § 939.72(3), which prohibits "attempt and the section defining the completed crime," bars the charges and/or convictions in this case. As to the former, defendants were not charged with, or convicted of, a crime which was the object of their conspiracy—first-degree homicide. Nor were they charged with a completed crime and an attempt to commit that crime—charges barred by § 939.72(3).
¶ 9. Our decision in this regard is consistent with numerous decisions in other jurisdictions — decisions allowing a defendant to be charged with, and convicted of, a conspiracy to commit a specific crime, and an attempt to commit the same offense. See, e.g., State v. Carey, 206 S.E.2d 222, 225 (N.C. 1974) (); United States v. Barrett, 933 F.2d 355, 361 (6th Cir. 1991) (); United States v. Easom, 569 F.2d 457, 458-59 (8th Cir. 1978) (); State v. Villalobos, 905 P.2d 732, 736 (N.M. Ct. App. 1995) (); Wooten-Bey v. State, 547 A.2d 1086, 1098 (Md. Ct. Spec. App. 1988) ().5
[5]
¶ 10. In its decision denying the State's motion for reconsideration, the circuit court suggested that the charges and convictions might...
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