State v. Borner
2013 ND 141
| N.D. | 2013Background
- Defendants Cody Borner and Richard Whitman were charged with two counts of conspiracy to commit murder based on an agreement to create "circumstances manifesting extreme indifference to the value of human life" and an overt act (firearms used; one death, one injury).
- The State amended the information to allege the defendants "knowingly" agreed to engage in or cause such circumstances; Borner did not object to the amendment or the final jury instructions.
- The trial court instructed the jury that conspiracy to commit murder requires an agreement to engage in conduct that "constitutes the offense of murder . . . under circumstances manifesting extreme indifference," and the jury convicted Borner on both counts.
- On appeal Borner argued the information failed to charge an offense because conspiracy to commit murder requires an intent to cause death, which the State neither alleged nor proved for ‘‘extreme indifference’’ (unintentional) murder.
- The North Dakota Supreme Court held the statutes at issue ambiguous and concluded conspiracy requires intent to agree and intent to cause the particular criminal result (death); thus conspiracy to commit murder cannot be predicated on an unintentional/reckless murder theory (extreme indifference).
- The court reversed the conviction as the charging document did not allege the required intent to cause death; concurrence agreed on resolving ambiguity for accused, dissent would have affirmed under federal-conspiracy precedents and plain-error rules.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Borner) | Held |
|---|---|---|---|
| Whether conspiracy to commit murder may be charged when the underlying murder is the "extreme indifference" (unintentional/reckless) variety | Conspiracy may be predicated on an agreement to engage in conduct that constitutes murder under extreme indifference without proving intent to cause death | Conspiracy requires an agreement plus the specific intent to cause the criminal result (death); extreme indifference murder lacks that specific intent | Conspiracy is a specific-intent crime requiring intent to cause death; conspiracy to commit "extreme indifference" (unintentional) murder is not a cognizable offense under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) |
| Whether the amended information was legally sufficient | Amendment alleging defendants "knowingly" agreed to create extreme-indifference circumstances was sufficient to charge conspiracy to commit murder | The information failed to allege the essential element of intent to cause death required for conspiracy to commit murder | Information was defective for failing to allege intent to cause death; reversal required |
| Whether obvious/plain error review bars relief given defendant's failure to object at trial | The State argued no objection waived error; and (per dissent) federal precedent supports conviction without proof of intent to cause death | Borner argued plain (obvious) error exists because no cognizable offense was charged; prejudicial error occurred | Court exercised discretion to notice obvious error: the defect was plain, prejudicial, and affected substantial rights; reverse judgment |
| Remedy and retrial possibility | N/A | N/A | Reversal of conviction; defendant may be reprosecuted on a proper charging document (no double jeopardy bar to refiling for a valid charge) |
Key Cases Cited
- United States v. Feola, 420 U.S. 671 (1975) (conspiracy requires at least the degree of intent necessary for the substantive offense)
- State v. Erickstad, 2000 ND 202 (N.D. 2000) (extreme indifference murder is a general-intent/unintentional form of murder under N.D. law)
- State v. Keller, 2005 ND 86 (N.D. 2005) (to establish conspiracy to commit murder the State must prove an agreement to commit murder)
- Evanchyk v. Stewart, 340 F.3d 933 (9th Cir. 2003) (conspiracy to commit murder requires intent to kill; felony-murder cannot serve as predicate for conspiracy)
- United States v. Croft, 124 F.3d 1109 (9th Cir. 1997) (discussion treating intent-to-kill as essential where the underlying murder offense requires it)