Summary
observing the necessity of examining the record to determine whether independent evidence supported guilty verdict on conspiracy charge
Summary of this case from People v. BadhawkOpinion
No. 81SA507
Decided December 13, 1982.
Appeal from the District Court of Larimer County, Honorable Robert Miller, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, Susan P. Mele, Assistant Attorney General, Nathan B. Coats, Assistant Attorney General, for plaintiff-appellee.
Miller and Gray, P.C., Daniel C. Hale, for defendant-appellant.
This is an appeal by the defendant, Peter Hoffman, from his conviction of conspiracy to commit the crime of manufacture of a dangerous drug. Because constitutional issues were raised, we accepted a transfer of jurisdiction pursuant to section 13-4-110(1)(a), C.R.S. 1973. We reverse and remand with directions to dismiss. Crim. P. 29.
I.
The defendant was charged with attempt to manufacture a dangerous drug, dispensing a dangerous drug, and conspiracy to commit the crime of manufacture of a dangerous drug. Sections 12-22-404, 12-22-412 and 18-2-201, C.R.S. 1973. The charge of dispensing a dangerous drug was severed for purposes of trial and was dismissed after the defendant was found guilty of the conspiracy charge.
Sections 12-22-401 to 12-22-415, C.R.S. 1973 (1978 Repl. Vol. 5), the Colorado Dangerous Drug Act, was repealed in 1981. L. 81, P. 741, § 39, effective July 1, 1981. The Colorado Controlled Substances Act, section 12-22-301 et seq., C.R.S. 1973 (1978 Repl. Vol. 5, 1982 Supp.), was adopted in 1981.
The events giving rise to the charges against defendant commenced in June 1977 when agents of the San Diego office of the Drug Enforcement Administration (DEA) received information that the defendant had ordered a 55-gallon drum of the chemical orthotoluidine, which was to be delivered to his home in San Diego. After the delivery on July 21, 1977, the DEA placed the defendant under surveillance.
Later in July, the defendant received two more 55-gallon drums of orthotoluidine and five barrels of acetic anhydride and anthranilic acid. The DEA agents became aware of the defendant's plan to move and applied to the United States magistrate in San Diego for permission to replace a later delivered drum of chemicals with a specially made drum. This drum contained a built-in tone transmitter which would facilitate surveillance when the drum was moved.
The defendant enlisted the aid of Michael Conley to move the chemicals to Colorado. When he arrived in Denver, Conley, using a fictitious name, placed the chemicals in a rented storage locker.
For the next two months, the defendant, Conley, and Richard Rahn lived in a house on Peterson Street in Fort Collins. Rahn, using a fictitious name, purchased chemical supplies, including glassware and tubing, and stored them at the Peterson Street Address.
On November 29, 1977, the chemicals stored in the rented locker were moved to Fort Collins by the defendant, Conley, and Rahn, and placed in the garage directly behind the Peterson Street house. The next day a search warrant was executed, and the drums, along with funnels, screens, pumps, sulfuric acid, xylene, sodium hydroxide, and isopropyl alcohol were seized. The defendant, Conley, and Rahn were arrested.
At trial, the defendant admitted ownership of the chemicals and other items seized. He also acknowledged that orthotoluidine, acetic anhydride, and anthranilic acid were the three primary chemicals necessary to manufacture methaqualone, and that he planned to sell kits or packages of those chemicals and advertise the kits for sale in High Times, a "counter-culture" magazine. The defendant also admitted that it was possible that people who would want to produce methaqualone would be reading his advertisements. The defendant denied any intent to manufacture methaqualone although he did opine that a fourteen-year-old could possibly find the chemical formula for methaqualone from comic books which explained the syntheses of various compounds.
Prior to trial, defendants Conley and Rahn entered pleas of guilty to conspiracy to commit the crime of manufacturing a dangerous drug and received deferred sentences.
Methaqualone, also known by the trade name of Quaalude, is defined as a "depressant drug" pursuant to section 12-22-403(5)(a), C.R.S. 1973 (1978 Repl. Vol. 5). Depressant drug is included within the definition of "dangerous drug" in section 12-22-403(4), C.R.S. 1973 (1978 Repl. Vol. 5).
The prosecution sought to prove that the defendant's efforts to produce kits or packages of the chemicals and sell them was an attempt to manufacture a dangerous drug. Further, it also sought to prove that the arrangement with Conley and Rahn established a conspiracy to manufacture a dangerous drug, methaqualone.
The defendant's theory of the case at trial was the lack of an unlawful agreement and lack of specific intent to enter into an unlawful agreement to manufacture methaqualone or attempt to manufacture a dangerous drug. After a trial to a jury, the defendant was acquitted of attempt to manufacture a dangerous drug, but was convicted of conspiracy to commit the crime of manufacture of a dangerous drug.
The defendant has raised a number of issues on appeal, but our resolution in his favor of his claim that he was entitled to a judgment of acquittal on the conspiracy charge because his acquittal on the charge of attempt is inconsistent with the finding of guilty on the conspiracy charge obviates the necessity of considering those issues.
II.
The basis of defendant's claim that he was entitled to a judgment of acquittal on the conspiracy charge after the jury acquitted him on the attempt charge is that the evidence which supported the attempt charge was the same "fund of evidence" as that which supported the conspiracy charge.
Section 18-2-201(1) and (2), C.R.S. 1973 (1978 Repl. Vol. 8) states: "Conspiracy. (1) A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime. "(2) No person may be convicted of conspiracy to commit a crime, unless an overt act in pursuance of that conspiracy is proved to have been done by him or by a person with whom he conspired."
Section 18-2-101(1), C.R.S. 1973 (1978 Repl. Vol. 8), provides: "Criminal attempt. (1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be, nor is it a defense that the crime attempted was actually perpetrated by the accused."
In Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966), we held that acquittal of a substantive offense forecloses conviction of conspiracy to commit that offense if the same evidence relied upon to establish the conspiracy is that which proved insufficient to establish the substantive offense. Later, in People v. Berry, 191 Colo. 125, 550 P.2d 332 (1976), where the defendant was charged with an attempt to commit aggravated robbery and conspiracy to commit aggravated robbery, we extended the rule of Robles to include inchoate offenses. We also stated that where there was no independent evidence, apart from the attempted commission of the robbery, to establish a conspiracy, and where the jury acquitted the defendant of attempted robbery, the verdict of guilty on the conspiracy charge could not stand because the verdicts were inconsistent.
The Robles rule has been applied in a number of cases, and a review of our decisions demonstrates the necessity of our examination of the record to determine whether there was independent evidence relating to the conspiracy in addition to that bearing directly upon the attempt to manufacture. See People v. Albers, 196 Colo. 66, 582 P.2d 667 (1978); People v. Samora, 188 Colo. 74, 532 P.2d 946 (1975); People v. Coca, 185 Colo. 10, 521 P.2d 781, (1974); Armijo v. People, 170 Colo. 411, 462 P.2d 500 (1969).
The Robles rule has been codified. Section 18-2-206(2), C.R.S. 1973 (1978 Repl. Vol. 8), provides that: "A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy."
The People agree that the same fund of evidence cannot support a conspiracy conviction and simultaneously an acquittal of the attempt. However, they contend that the evidence relating to the conspiracy was substantially different from that offered to prove the attempt, and therefore the Robles rule is not applicable. Specifically, they rely on the testimony of Conley and Rahn to establish the agreement or understanding of the parties which, in turn, would support the conspiracy conviction.
Our review of the record does not support the People's contention. Conley testified that he and the defendant had been roommates for two years and the defendant enlisted his aid in transporting the orthotoluidine, acetic anhydride, and anthranilic acid from California to Colorado. He admitted that the defendant gave him the opportunity to invest in the enterprise. He knew that methaqualone was a dangerous drug, and he thought that it could be made with the above-named chemicals. Conley also testified that the market for the kits or packages would be the persons in the counter-culture and his use of a fictitious name in renting the storage locker was because of his concern about the DEA.
Rahn's testimony was limited and only established that he did not pay his share of the rent on the Fort Collins house in exchange for running errands and buying chemical equipment and supplies. He also admitted to using a fictitious name in signing a receipt for the chemical supplies and helping the defendant transfer some of the chemicals from the large drums into smaller containers.
The People contend that the agreement between the defendant and Conley and the use of fictitious names by Conley and Rahn were sufficient to show a conspiracy and were separate from the other evidence of the defendant's attempt to manufacture a dangerous drug. The evidence of attempt which the People distinguish from the evidence of conspiracy includes the defendant's acts of ordering and receiving the chemicals in California, arranging to transport the chemicals to Colorado, moving the chemicals from the storage locker in Denver to Fort Collins, and placing the chemicals into smaller containers.
In our view, the record establishes one transaction, and the elements of the crimes charged are such that acquittal of one is inconsistent with conviction of the other. People v. Berry, supra. No independent evidence, apart from the attempt to manufacture a dangerous drug, exists to establish a conspiracy. The verdicts are inconsistent, and under the rule of Robles, the conspiracy verdict must be set aside.
We reverse and remand with directions that the defendant's motion for judgment of acquittal, pursuant to Crim. P. 29, be granted.
JUSTICE LOHR dissents.