State v. Spioch, s. 96-1603

• Decision Date: 09 January 1998
• Docket Number: Nos. 96-1603,96-1911,s. 96-1603
• Parties: 23 Fla. L. Weekly D172 STATE of Florida, Appellant/Cross-Appellee, v. Mary Ann SPIOCH, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 32

706 So.2d 32

23 Fla. L. Weekly D172

STATE of Florida, Appellant/Cross-Appellee, v. Mary Ann SPIOCH, Appellee/Cross-Appellant.

Nos. 96-1603, 96-1911.

District Court of Appeal of Florida Fifth District.

Jan. 9, 1998.

Rehearing Denied Feb. 23, 1998.

Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

Daniel S. Ciener, Andy M. Fouche', Curtis N. Flajole and David J. Romett of Law Firm of Daniel S. Ciener, Merritt Island, for Appellee/Cross-Appellant.

GRIFFIN, Chief Judge.

Mary Ann Spioch was convicted of criminal conspiracy to commit first-degree premeditated murder. The trial court declined to impose a guidelines sentence, instead ordering that Spioch serve fifteen years probation. The state has appealed the downward departure sentence; Spioch has cross-appealed her conviction contending, inter alia, that there was insufficient evidence that she conspired to commit murder.

The background facts show Spioch's son, Thomas, earlier had been convicted of sex offenses against children and was incarcerated in the Brevard County Jail pending hearings on post-trial motions and sentencing. While there he met another inmate, Robert Harley. Harley testified during the conspiracy trial that Thomas approached him and solicited him to kill five people who had participated in Thomas' prosecution. It was agreed that Harley would receive $5,000 for the killings. The names and addresses of the victims were written down on a list and each man was to retain a copy. The conversations between Harley and Thomas Spioch took place over the course of approximately one month. The men agreed that Harley would receive $2,000 up front so that he could bond out of jail and commit the murders, after which he was to contact Thomas Spioch's mother, the appellant here, inform her through the use of a code that the job had been completed, and she was to pay him the balance.

Subsequently, when the initial monies did not arrive, Harley began to complain and Thomas made a phone call to his mother. Harley at that time spoke on the phone with Mary Spioch. The money arrived at the jail three or four days after this phone call. Mary Ann Spioch sent Harley the $2,000 in separate $500 money orders, the sender identified on the money orders was Harley's father. Thomas also arranged for another inmate, Jerrod Bookhardt, to receive a $500 money order, which was supposed to be given to Harley and used by him to bond Bookhardt out as well. That money order was sent in the name of Bookhardt's mother. Harley used the money to bond himself (but not Bookhardt) out of jail, then spent the balance of the money on drugs and parties. Other inmates who were aware of the murder scheme contacted police after Harley's release, and Harley was subsequently arrested in a motel room in Melbourne.

Harley agreed to cooperate against the Spiochs in exchange for a plea to grand theft with a sentence of community control and probation. The Sheriff's department then had Harley place a phone call to Mary Spioch asking for the balance of the money. During this taped telephone conversation, Harley identified himself as a friend of her son from the jail and said that "everything would be taken care of tomorrow." He asked if Mary could "get it to me" and said he wanted to meet with her to pick up the money. He also stated that Thomas had already paid him $2,500, and that Thomas should call him later at a certain phone number. In response, Mary Spioch told Harley she didn't know what he was talking about and said she wasn't going to "get involved in this," but she agreed to pass along Harley's message. Investigators then confronted Mary Spioch at her office and told her they had arrested her son for conspiracy to commit murder. At first she denied ever having had any contact with Robert Harley and said she had no idea what they were talking about. She ultimately admitted to having spoken with Harley and that she had sent money orders to him in the name of his father. She also admitted that she had sent money to Bookhardt. She claimed that she and her son were simply acting out of charity (they "liked to help people out when they could"), and that she knew nothing about a murder plan.

The initial question is whether the state presented sufficient evidence at trial to sustain the conviction of Mary Spioch for conspiracy to commit premeditated murder. The crime of conspiracy consists of an express or implied agreement between two or more persons to commit any criminal offense. § 777.03(3), Fla. Stat. (1995). Herrera v. State, 532 So.2d 54, 58 (Fla. 3d DCA 1988); Velunza v. State, 504 So.2d 780, 782 (Fla. 3d DCA 1987). The existence of an agreement to support a charge of conspiracy may be shown circumstantially. Manner v. State, 387 So.2d 1014 (Fla. 4th DCA 1980). A conspiracy conviction based on circumstantial evidence must be inconsistent with any reasonable hypothesis of innocence. Kocol v. State, 546 So.2d 1159, 1160 (Fla. 5th DCA 1989); LaPolla v. State, 504 So.2d 1353 (Fla. 4th DCA 1987).

These are circumstances the jury had to consider:

1. Thomas Spioch, Mrs. Spioch's son, after he was convicted of the crimes and was awaiting sentence in the Brevard County jail, met Robert Harley, another jail inmate.

2. Thomas offered Harley $5,000 to "take out" some of the investigators and others who caused Thomas problems. Harley agreed to do the "contract."

3. Mrs. Spioch was greatly upset by Thomas' conviction and believed him to have been unfairly convicted.

4. Thomas told Harley that his mother would provide $2,000 up front and the balance when the job was completed.

5. Appellant sent the money to Harley using Harley's father's name and the money to Bookhardt using his mother's name.

6. When the money did not arrive when expected, Harley contacted Thomas and they both talked to Mrs. Spioch by telephone; two days later Mrs. Spioch sent $2,000 to Harley.

7. Concerning final payment, Thomas told Harley that once the murders took place, Harley was to contact Mrs. Spioch and, by the use of a code, inform her that the job was done and he would receive final payment. He was to call her on a cellular phone and tell her to call back from a phone booth. She would then be told where to meet Harley and, upon mentioning the code, Mrs. Spioch would make the final payment.

8. When the police discovered the plot, they had Harley contact Mrs. Spioch and advise her that everything would be "taken care of tomorrow" and could she "get it to me."

9. When the call was placed, Mrs. Spioch denied knowing what Harley was talking about (perhaps because no code was used), and said she did not want to be involved but she agreed to pass along the message.

10. When the police contacted Mrs. Spioch the day after this telephone call, she denied having contact with Harley. She subsequently admitted talking to Harley and sending the money to him using the name of his father to do so.

11. The reason she gave police for sending the money to Harley was that she and Thomas "liked to help people out whenever they could."

These circumstances, which include providing the funds for the offense, conscious acts of concealment and false statements to police, and Mrs. Spioch's explanation that the funding was a philanthropic act were sufficient to meet the burden imposed by State v. Law, 559 So.2d 187 (Fla.1989). Once the state met its initial burden, the weight of that evidence was for the jury.

Mrs. Spioch also contends that the trial court erred in not granting a severance of her case and in continuing her speedy trial period. This issue was not properly preserved below. Further, this is not a constitutional speedy trial case. If Mrs. Spioch is to rely on the rule, she must comply with it. Mrs. Spioch did not pursue her speedy trial remedy under rule 3.191(i), Florida Rules of Criminal Procedures. See Beltran-Lopez v. State, 583 So.2d 1030 (Fla.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). Even though the court, perhaps without adequate reason, continued her speedy trial period, it may well have reconsidered its decision if it had been confronted with a demand for release under the rule. It may have been trial strategy to sit back and await the jury verdict in the hope of an acquittal and then, only if necessary, urge the remedy provided by the rule. In this way, Mrs. Spioch did not run the risk of having to go to trial, perhaps unprepared, within fifteen days of her demand for release. ¹

As for the state's appeal of Mrs. Spioch's downward departure sentence, we find no error. The trial court gave three reasons for its decision to impose fifteen years of probation rather than four years' incarceration: First, the court found that a downward departure was justified because Mary Ann Spioch required specialized treatment for physical disabilities and was amenable to treatment. § 921.0016(4)(d), Florida Statutes (1995). ² Mrs. Spioch, who was sixty-three years old, suffered from three major life-threatening conditions: cancer, diabetes and coronary heart disease with hypertension and left ventricle hypertrophy. The cancer required radiation therapy, the diabetes required two insulin injections per day, supplements and special diet. Mrs. Spioch also suffered from depression, requiring medication with Prozac and Ativen. Other medial conditions which required specialized attention periodically were: arthritis, gout, allergic rhinitis, carpal tunnel syndrome, diabetic neuropathy and spinal stenosis.

The state objects on appeal that there is no evidence that Mrs. Spioch could not receive treatment for her physical disabilities while in prison and so a downward departure is inappropriate. Given the nature and extent of her illnesses, however, successful treatment in a prison setting is doubtful. The lower court expressly found that Mrs. Spioch's constellation of...