State v. SpiochState v. Spioch
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 imрose 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 оn 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.
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 рhone 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.
These are circumstances the jury had to consider:
- 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.
- Thomas offered Harley $5,000 to “take out” some of the investigators and others who caused Thomas problеms. Harley agreed to do the “contract.”
- Mrs. Spioch was greatly upset by Thomas’ conviction and believed him to have been unfairly convicted.
- Thomas told Harley that his mother would provide $2,000 up front and the balance when the job was completed.
- Appellant sent the money to Harley using Harley‘s father‘s name and the money to Bookhardt using his mother‘s name.
- When the money did not arrive when expected, Harley contacted Thomas and they both talked to Mrs. Spioch by telephone; two days latеr Mrs. Spioch sent $2,000 to Harley.
- 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. - 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.”
- 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.
- 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.
- 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
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.
The state objects on appeal that there is no evidence that Mrs. Spioch could not receive treatment for hеr 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 medical problems
The court also concluded that Mary Ann Spioch acted under the domination of her son, Thomas.
the trial judge was so convinced that Thomas dominated and controlled the appellee that he ordered her to have no contact with Thomas.
Although the desire to protect a beloved child, no matter how overwhelming, is not the sort of “domination” the statute contemplates, the trial court was in the best position to determine the hierarchy of this mother/son relationship. There are enough psychological factors and other circumstances present to support a finding that Mrs. Spioch acted because she felt she had no choice but to do what her son demanded.
The final reason given for downward departure dealt with the unsophisticated and isolated nature of the offense. The statute requires a showing of remorse, however, which the appellant has not made. At least one reason for departure is valid, however, and will support the downward departure. State v. Chandler, 668 So. 2d 1087 (Fla. 1st DCA 1996);
AFFIRMED.
COBB and HARRIS, JJ., concur in part; dissent in part, with oрinions.
COBB, Judge, concurring in part, dissenting in part.
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 15 years probation. The state has appealed the downward departure sentence; Spioch has cross-appealed her conviction contending, inter alia, that there was insufficient evidenсe 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, and she was to pay him the balance.
Subsequently, when the money did not arrive, Harley complained 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. The $2,000 was sent to Harley by Mary Ann Spioch in separate $500 money orders. Since Thomas did not want his mother‘s name on them, the money orders were sent in the name of Harley‘s
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 having had any contact with Robert Harley and said she had no idea what they were tаlking about. After 10-15 minutes of such denials, however, she 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, and that she knew nothing about a murder plan.
The initial question which should be addressed is whether the state presented sufficient evidence at trial to sustain the conviction of Mary Spioch for conspiracy to commit premeditated murder. The law is wеll settled that the crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime. Herrera v. State, 532 So. 2d 54, 58 (Fla. 3d DCA 1988); Velunza v. State, 504 So. 2d 780, 782 (Fla. 3d DCA 1987). Conspiracy may not be inferred from mere aiding and abetting. Velunza, 504 So. 2d at 782. While circumstantial evidence alone will support the existence of a conspiracy, Wilder v. State, 587 So. 2d 543, 545-547 (Fla. 1st DCA 1991); Edwards v. State, 516 So. 2d 285 (Fla. 2d DCA 1987), a special standard of review of the sufficiency of the evidence applies when a conviction is based wholly on circumstantial evidence. State v. Law, 559 So. 2d 187, 188 (Fla. 1989); Jaramillo v. State, 417 So. 2d 257 (Fla. 1982). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with the defendant‘s reasonable hypothesis of innocence. Law at 188-189. See also Williams v. State, 592 So. 2d 737 (Fla. 1st DCA), rev. denied, 601 So. 2d 553 (Fla. 1992) (evidence that defendant agreed to participate in a “big deal” was not sufficient to support a conviction for conspiracy).
The question then becomes whether the state, in its case in chief, introduced competent substantial evidence which is inconsistent with Mary Spioch‘s contention that she did not know about any murder plan.
The state readily concedes that it presented no direct testimony that either Harley or Thomas Spioch ever mentioned the crime of murder to Mary Spioch or that she made any reference to that crime at any time to anyone. There was no evidence that she had ever been told the names of the proposed victims. She sent her son‘s money, at his direction, to Harley and Bookhardt and she did it in a covert manner. Moreover, she initially lied about her contact with Harley, and made an implausible claim that her motives were purely charitable. The state has produced evidence that she knew, or should have known, that she was involved in some wrongdoing at the behest of her son. But what wrongdoing? Why conspiracy to murder rather than conspiracy to bribe a public
The state‘s star witness, Harley, never testified that Mary Spioch was told аbout the murder plan or knew anything about the list of proposed victims. In the taped conversation set up by the investigators, she denied any knowledge of the deal between Harley and her son, and expressly declared to Harley that she wanted no involvement with their plans. When the investigators set up the taped telephone conversation between Harley and Mary Spioch, they obviously hoped there would be incriminating statements forthcoming from Mary Spioch. There were not—and it simply is not crеdible that she would pretend to her own coconspirator that she knew nothing of their mutual plan and say she did not want to be involved in it if, in fact, she was part of the conspiracy. There is no evidence whatsoever that she suspected her conversation with Harley was being monitored by investigators. Moreover, Mary Spioch sent money to the jail for Bookhardt as well as for Harley, and there is no evidence and no claim that Bookhardt was involved in any conspiracy to murder—if, indeed, there was such a conspiracy.1
I would find that the circumstantial evidence presented at trial by the state was insufficient to uphold her conviction of guilt of the crime of conspiracy to commit premeditated murder, and that her motion for judgment of acquittal at the close of the state‘s case should have been granted.
Although I dissent from the majority‘s affirmance of Mary Ann Spioch‘s conviction, I concur with Judge Griffin in respect to the downward departure sentence.
HARRIS, Judge, concurring in part; dissenting in part.
I concur in affirming the conviction. I would, however, reverse the downward departure sentence and remand for a new sentencing.
Conspiring to murder five people is fairly serious stuff. One would think that Mrs. Spioch would be in a world of trouble. Instead the court sentenced her to probation. The trial court gave as its reasons Mrs. Spioch‘s bad health and the fact that she was under the domination of her son.1
The fact that a defendant “requires specialized treatmеnt for ... physical disability, and that the defendant is amenable to treatment” is a proper basis for mitigation. Unquestionably, Mrs. Spioch had serious physical problems—a heart condition and cancer being the most serious—but is the mere fact of illness sufficient to justify mitigation? Does an ill person automatically have a “get out of jail free” card when he or she commits a crime? Of course not. Does a judge have unlimited discretion to mitigate the sentence of an ill person? If so, this unlimited discretion would be totally inconsistent with the theory of guideline sentences which is to require uniform sentences for similar offenses based on similar circumstances. To be consistent with the principles of uniform sentencing, this mitigating factor should be interpreted so as to have a standard. I believe a standard is implicit in the fact that the requirement of “specialized care” is coupled with the requirement that the “defendant be amenable to treatment.” This means that illness alone is insufficient for release unless the defendant is expеcted to benefit from the release which will permit the specialized care. I submit that this term “specialized care” is not limited to “care by a specialist” but also implies specialized care that is not available within the prison system. And the question should not be whether Mrs. Spioch could get better care outside the prison; the question should be whether she can receive adequate care inside. Otherwise the numerous prisoners who suffer mental or physical ills and who can show that better treatment is available “over the wall” should be released. There is simply no evidence that Mrs. Spioch‘s health problems cannot be properly handled within the prison environment.
I concur in the conviction but would reverse the downward departure sentence and remand for resentencing.