State v. St. Christopher

• Decision Date: 29 August 1975
• Docket Number: No. 45270,45270
• Parties: STATE of Minnesota, Respondent, v. Daniel ST. CHRISTOPHER, Appellant.
• Court: Minnesota Supreme Court

Page 798

232 N.W.2d 798

305 Minn. 226

STATE of Minnesota, Respondent, v. Daniel ST. CHRISTOPHER, Appellant.

No. 45270.

Supreme Court of Minnesota.

Aug. 29, 1975.

Syllabus by the Court

1. Under Minn.St. 609.175, subd. 2, defendant was properly convicted of conspiracy to commit a crime even though the person with whom he conspired feigned agreement and at no time intended to go through with the plan.

2. Defendant's conviction of attempted murder must be reversed because (a) defendant was not charged with attempted murder and attempted murder is not an included offense of the charged offense, conspiracy to commit murder; and (b) even if it were an included offense, his conviction of the charged offense precluded a conviction of any lesser offense.

3. Defendant has failed to sustain his contentions that (a) the trial court erred in admitting certain hearsay evidence and (b) the trial court was biased. This court will not pass on his contention that there is newly discovered evidence justifying the granting of a new trial before the trial court has had the opportunity to do so.

Adamson & Kennedy and Michael H. Kennedy, Mankato, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Peter W. Sipkins, Sol. Gen., Richard Mark, Asst. Sol. Gen., Richard B. Allyn and Gary Hansen, Sp. Asst. Attys. Gen., William M. Gustafson, County Atty., St. Peter, for respondent.

Considered and decided by the court without oral argument.

ROGOSHESKE, Justice.

Defendant was found guilty by the court, sitting without a jury, of conspiracy to commit murder, Minn.St. 609.175, subd. 2, and attempted first-degree murder, Minn.St. 609.17, and sentenced under the conspiracy conviction to a maximum indeterminate term of 20 years' imprisonment. He contends upon this appeal from the judgment (1) that he was improperly convicted of conspiracy because the evidence shows that the only party with whom he conspired never intended to aid defendant but merely feigned agreement while cooperating with police; (2) that the trial court erred in finding him guilty of attempted murder because the information did not charge him with that crime and attempted murder is not, under Minn.St. 609.04, a lesser included offense of the charge of conspiracy to commit murder; and (3) that, even if there is no merit to the first two contentions, he is still entitled to a new trial because of (a) improper admission of hearsay evidence, (b) bias on the part of the trial court, and (c) newly discovered evidence. We affirm the conviction of conspiracy and reverse the conviction of attempted first-degree murder.

The facts in this case are relatively simple. On March 16, 1974, defendant (who formerly was named Marlin Peter Olson but legally changed his name to Daniel St. Christopher) stated to his cousin, Roger Zobel, that he wanted to kill his mother, Mrs. Marlin Olson, and that he wanted Zobel's help. He would pay him $125,000 over the years, money defendant would get from his father after his mother was dead. Zobel the key witness against defendant at his trial on the charge of conspiracy, testified that at no time did he ever intend to participate in the murder but that he discussed the matter with defendant on that and subsequent occasions and acted as if he intended to participate in the plan. On March 18, Zobel contacted the police and told them of defendant's plan and they later told him to continue to cooperate with defendant. The plan, which became definite in some detail as early as March 20, was for Zobel to go to the Olson farmhouse on Saturday, March 23, when defendant's father was at the weekly livestock auction. Since defendant's mother was Zobel's aunt, Zobel could gain entrance readily. The idea was for Zobel to break her neck, hide her body in his automobile trunk, and then attack bricks to it and throw it in a nearby river after dark. Later it developed that defendant's father might not go to the sale on Saturday, so a plan was developed whereby defendant would feign car trouble, call his father for help, then signal Zobel when the father was on his way. Police followed defendant on Saturday when he left his apartment and observed him make a number of telephone calls. In one of these he called his father and told him he was having car trouble and asked him to come and help him pay the bill. In a call to Zobel, which was taped, defendant told Zobel that his father was coming and that Zobel should proceed with the plan. Shortly thereafter, police arrested defendant.

During the trial defense counsel, in a motion to dismiss, made it clear to the trial court that he felt defendant could not be convicted of conspiracy. He argued that since Zobel never intended to participate in a murder, he did not really conspire with defendant. The trial court was obviously troubled by this argument because, after the evidence was in and after he revealed that he believed the state's witnesses, he asked counsel what they thought of his finding defendant guilty of conspiracy, as charged, and of attempted murder as an included offense. The prosecutor at first expressed doubts at the fairness of convicting defendant of a crime with which he had not been charged but later agreed with the trial court that it could find defendant guilty of attempted murder. The prosecutor insisted, however, that he preferred that the trial court find defendant guilty of conspiracy. As it turned out, the trial court found defendant guilty of both conspiracy and attempted murder, sentencing defendant for the conspiracy offense to an indeterminate term of 20 years' imprisonment. ¹

1. We have not found any Minnesota cases in point on the issue of the validity of the conspiracy conviction. However, in two criminal conspiracy cases this court has stated, or at least implied, that a person cannot be guilty of conspiracy where the only person with whom he has conspired or agreed has feigned agreement. The first of these cases is State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518, 520 (1943), where this court stated that '(t)o constitute a conspiracy to cheat and defraud, there must be not only a combination, but a common object to cheat and defraud, which each member of the combination intends shall be accomplished by the concerted action of all.' ²

The more recent Minnesota case is State v. Willman, 296 Minn. 322, 208 N.W.2d 300 (1973). In that case, there was a true meeting of the minds by both defendant and one Toles followed by an overt act in furtherance of the conspiracy to commit murder in the first degree. Subsequently, Toles changed his mind and contacted the police. In holding that there was sufficient evidence that defendant was guilty of conspiracy, this court arguably implied (but did not hold or even say) that this might not be the case if there had not been a true meeting of the minds or if an overt act had not occurred until after Toles contacted the police.

There is extensive authority from other jurisdictions which supports defendant's contention. The reasoning employed in these cases was summarized in Fridman, Mens Rea in Conspiracy, 19 Modern L.Rev. 276, as follows:

'* * * Conspiracy is the agreement of two or more to effect an unlawful purpose. Two people cannot agree unless they both intend to carry out the purpose which is stated to be the object of their combination. Therefore there is no agreement, and consequently no conspiracy, where one of the two never intends to carry out the unlawful purpose.'

Cases that so hold include United States v. Chase, 372 F.2d 453 (4 Cir. 1967), certiorari denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); Sears v. United States, 343 F.2d 139 (5 Cir. 1965); United States v. Wray, 8 F.2d 429 (N.D.Ga.1925); King v. State, 104 So.2d 730 (Fla.1958); State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), certiorari denied, 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545 (1970); Delaney v. State, 164 Tenn. 432, 51 S.W.2d 485 (1932); Woodworth v. State, 20 Tex.App. 375 (1886).

If there had been some evidence to suggest that, contrary to his testimony, Zobel in fact had intended to participate in the conspiracy and had not feigned agreement from the start, then the court as factfinder could have found defendant guilty of conspiracy without rejecting the rule followed in the cited cases. See, State v. Horton, supra. However, the only evidence that the state produced was that Zobel did not intend at any time to participate in the conspiracy and that his agreement was feigned, and the trial court believed his evidence. Therefore, if we accept the rule followed in these cases, we would have to reverse defendant's conviction.

We are persuaded not to accept this rule and base our decision on (a) our belief that the rule is unsound, and (b) our belief that the present conspiracy statute, § 609.175, subd. 2, authorizes a conviction in this situation.

(a) One criticism by a number of commentators of the rule followed in the cited cases is that the courts have reached their conclusion by using as a starting point the definition of conspiracy as an agreement between two or more persons, a definition which was framed in cases not involving the issue. As one commentator put it, 'if a conspiracy is arbitrarily defined as 'an agreement of intentions and not merely of language (the intentions being unlawful)' the answer to the problem is undoubtedly that where there is no such agreement of intentions then there is no conspiracy.' Fridman, Mens Rea in Conspiracy, 19 Modern L.Rev. 276, 278. In other words, the basis for the rule is a strict doctrinal approach toward the conception of conspiracy as an agreement in which two or more parties not only objectively indicate their agreement but actually have a meeting of the minds.

Addressing the rule to be applied as a policy issue, a number of commentators have come to the conclusion that there should be no requirement of a meeting of the minds. Thus, Fridman points to cases holding that factual...