Commonwealth v. SegoCommonwealth v. Sego
- Reporters:
- Before:
- Wintersheimer
Lead Opinion
This appeal is from a decision of the Court of Appeals which reversed a judgment of conviction against Sego for conspiracy to commit second-degree arson. He was sentenced to seven years in prison but was probated for a term of five years.
The specific issues are whether an undercover police agent can be a party to a conspiracy and whether an indicted conspirator becomes a non-conspirator by pleading guilty to a lesser сharge. The Court of Appeals answered both questions in the negative and reversed the conviction by relying on
In June of 1990, Sego and an undercover agent of the United States Bureau of Alcohol, Tobacco and Firearms reached an agreement under which Sego accepted $2,490 tо burn a house. Shortly after he received the money,
At trial, Sego testified that he intended to report the undercover agent to police and he did not intend to set a fire but rather to take the money and leave town. Upon conviction of conspiracy to commit second-degree arson, Sego appealed to the Court of Appeals which reversed. This Court accepted the motion of the Commonwealth for discretionary review.
The Court of Appeals held that Sego was entitled to a directed verdict of acquittal because an undercover agent cannot be a party to conspiracy and an indicted conspirator becomes a non-conspirator by pleading guilty to a lesser charge. The panel did not reach the other issues raised by Sego on his appeal as a matter of right. We granted a cross-motion bringing the other issues before the Court of Appeals to this Court.
Sego was not entitled to a directed verdict of acquittal because his codefendant entered a plea to the offense of facilitation, and the fact that his other co-conspirator was a police agent did not mean that he was “discharged under circumstances amounting to an acquittal” so as to entitle Sego to an acquittal under
Criminal conspiracy at common law traditionally has been considered as an agreement to accomplish an unlawful act involving two or more persons- sharing a “bilateral” or “multilateral” relationship. Some courts required proof that at least two of the conspirators were actually guilty of the conspiracy. The commentary to
The legal incapacity of a co-conspirator will not exonerate the associate. It is of no consequence in the prosecution of criminal conspiracy that a co-conspirator of the actor сould not be guilty of the crime which is the objective of the association because of a lack of intent.
The traditional rule of Green, as enacted in
to adopt the rule urged by the learned counsel would be to deрrive the Commonwealth of all benefits from this section where there were only two in the conspiracy. For if, in this event, one of the conspirators was introduced as a witness for the state, the other would never be convicted, however clearly his guilt might bе shown.
We do not believe the legislature intended the reference to “acquittal” under KRS 506.-070(3) to mean a negotiated plea where the co-conspirator testifies at trial to participation in the conspiracy. It is a more consistent intеrpretation to believe that section (3) was adopted merely to prevent inconsistent verdicts. See Green.
Although Green held that a defendant could not be convicted of conspiracy if co-conspirators were acquitted, the court also indicated thаt such did not include a co-conspirator who could not be convicted for other legal reasons as such would not be the equivalent to an acquittal.
Here, the co-conspirator was not acquitted of conspiracy. He was merely granted immunity from prosecution for conspiracy by being allowed to plead to facilitation in exchange for his testimony. Consequently, Sego was not entitled to a directed verdict of acquittal because his co-defendant entered a plea to the offense of facilitation.
We must now consider the three issues raised on cross-appeal by Sego. They are: 1) that a mistrial was requested when the undercover agent stated an opinion that he was convinced that Sego would fulfill his promisе to burn the house; 2) a dismissal of the indictment was requested on the theory that it had been returned by an improperly empaneled grand jury; and 3) a new trial was sought because of plain error arising from instructions allegedly giving less weight to the defense theory that Sego only intended to take the agent’s money.
We find these arguments to be without merit. The collective facts rule allows an individual to testify about a party’s mental condition and emotions as manifested to that witness. See Emerine v. Ford, Ky., 254 S.W.2d 938 (1953). In any event, there is overwhelming evidence оf guilt in this case, and the error, if any, is nonprejudicial. RCr 9.24.
The grand jury panel that indicted Sego was properly constituted and the trial judge did not err in denying the defendant’s motion to dismiss the indictment. The Grand Jury was empaneled on July 1 and was drawn from the roll of voters. On July 13,
On August 6, 1990, the administrative procedures of the Court of Justice were amended in Part II, Section 3, to conform with the amended statute. The amended rule became effective on September 15, 1990. At the time of Sego’s indictment, the statute and the rule were that the jury was to be selected from thе voter list and that a juror be given 30-days’ notice. See Administrative Procedures of the Court of Justice, Part II, Section 8;
Even if there was a conflict between the statutes, it is the obligation оf the court to try to harmonize the interpretation of the law so as to give effect to both statutes if possible. Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983). Therefore the statute should be interpreted so that any juror drawn on or after July 13, 1990 shall be from the drivers’ license list or voter registration list, but that jurоrs previously notified may serve during the interim. Any other construction would
Sego’s final complaint in his cross-petition is that the trial judge committed reversible error in allegedly failing to properly instruct the jury because the format of the jury instructions favored the prosecution’s theory of the case over the defendant’s theory. This issue has not been properly preserved for appellate review pursuant to RCr 9.54(2). In this particular case, we find that there is no palpable error or manifest injustice under RCr 10.26, which requires review of this allegation.
It is the holding of this Court that the defendant was not entitled to a directed verdict of acquittal merely because his eodefend-ant entered a guilty plea to the offense of facilitation. The defendant was not entitlеd to a directed verdict of acquittal because under
The decision of the Court of Appeals is reversed and the judgment of the circuit court is reinstated.
STEPHENS, C.J., and LEIBSON, REYNOLDS, SPAIN and STUMBO, JJ., concur. LAMBERT, J., dissents by separate opinion.
Dissenting Opinion
dissenting.
While it may not be entirely cleаr from the majority opinion, the person with whom appellant conspired to commit arson was an alcohol, tobacco and firearms agent who never had any intention of engaging in criminal conduct. In a word, appellant was duped by the ATF agent.
The crime of which appellant stands convicted is conspiracy which requires an agreement between two or more persons to engage in criminal conduct. When one of the parties to the agreement has no intention of engаging in such criminal conduct, there can be no conspiracy. As aptly stated by the Court of Appeals, “There is no such thing as a conspiracy of one.” This proposition was established a long time ago in Green v. Commonwealth, 264 Ky. 725, 95 S.W.2d 561 (1986), as follows:
From the very nature of the crime, a conspiracy cannot be committed by one person alone, but must be committed by two or more persons. For this reason, it is the general rule that one defendant charged with the crime of conspiracy cannot be convicted where the dispositiоn of the case against all of his alleged coconspirators is such that the basis of the charge of conspiracy is removed.
Id., 95 S.W.2d at 561.
The reason underlying the crime of conspiracy is the greater potential for harm when two or more persоns are acting in concert. As a means of preventing the greater harm, the law, in effect, punishes criminal intent providing it is accompanied by an overt act. 10 Abramson, Kentucky Practice § 3.39-.40 (1990). To soften such a harsh rule, however, the law provides in