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discussing solicitation as an inchoate crime, universally recognized under the common law of the United States
Summary of this case from Grafmuller v. ComOpinion
44238 Record No. 810052.
December 4, 1981
Present: All the Justices.
Evidence supports conviction under Code Sec. 18.2-29 of criminal solicitation to homicide although victim not identified and no attempt to kill.
(1) Criminal Law — Statutory Construction — Criminal Solicitation; Penalty (Code Sec. 18.2-29) — Separate Crime may be Committed Before Attempt.
(2) Criminal Procedure — Statutory Construction — Criminal Solicitation; Penalty (Code Sec. 18.2-29) — Evidence — When Offense Completed — Not Required that Victim of Assassination be Identified — Evidence Supports Conviction.
(3) Criminal Procedure — Entrapment — No Defense When Criminal Design Originates in Mind of Accused.
Defendant was convicted of criminal solicitation under Code Sec. 18.2-29. Defendant had been involved in a romantic liaison with the intended victim's husband. She contacted Burton, a restaurant manager, told him that he had been recommended as a "hit man" and that she needed someone "done away with." Burton arranged a meeting with Defendant on November 30, 1979 and then contacted the police telling them that a woman wanted to hire a killer. Burton, following the police's instructions, met with Defendant that night. The police taped the conversation in which Defendant described her plan, suggesting that the killer hide in the trees near the victim's house and kill her when she was alone. The victim was not identified. Burton offered to contact a friend who would do the job. On December 1, 1979 Defendant called Burton, the police recording this conversation. Burton told Defendant his friend had agreed to do the job for $1,000 with $500 in advance. Defendant decided to meet the friend and designated a pay phone at which she would call the friend to arrange for a meeting. She stated the killing must be done before December 15, 1979, otherwise the victim's husband would be at home. Although the call was not completed, a second planned call was completed on December 3, 1979 between Bass, a police officer posing as the "friend" and the Defendant, a meeting between Bass and the Defendant also occurring that day in a parking lot. The conversation at this meeting was recorded. The defendant described the intended victim as a housewife and outlined murder scenarios. However, Bass and the Defendant could not agree on the down payment and Defendant terminated the negotiation. On December 4, 1979 the police searched Defendant's house, finding a can of mace, a piece of paper bearing the false name Defendant had been using with Burton and Bass, and $1,000 in cash. Defendant appeals her conviction for criminal solicitation, arguing that the evidence was insufficient because the victim was not specifically identified and further that the defense of entrapment should bar her prosecution for the alleged offense.
1. The separate crime of solicitation under Code Sec. 18.2-29 may be committed before an attempt is made to commit the solicited crime.
2. Here the offense of solicitation under Code Sec. 18.2-29 was committed at the conclusion of the conference between defendant and Burton on November 30, 1979, although defendant did not identify the intended victim, the evidence being sufficient to sustain the conviction.
3. When the criminal design originates in the mind of the accused and the Commonwealth does no more than afford an opportunity for the commission of the crime, the defense of entrapment does not lie. Cogdill v. Commonwealth, 219 Va. 272, 247 S.E.2d 392 (1978), followed.
Appeal from a judgment of the Circuit Court of the City of Salem. Hon. Lawrence L. Koontz, Jr., judge presiding.
Affirmed.
S. Strother Smith, III, for appellant.
Robert E. Bradenham, II, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
In a bench trial the court convicted Kathryn Coake Huffman of criminal solicitation in violation of Code Sec. 18.2-29. In this appeal she argues that the evidence is insufficient to convict because the intended victim was not specifically named or otherwise sufficiently identified. She further argues that the defense of entrapment should bar the prosecution. We reject both contentions and affirm the judgment.
Huffman, a 42-year-old married clerical worker, had been involved for more than three years prior to the trial in a romantic liaison with Robert Perkins, a married man. They had discussed divorcing their respective spouses and making their relationship permanent. Several witnesses described Huffman as a depressed woman caught in a lovers' triangle.
The evidence at trial reveals that on November 30, 1979, Thomas Burton, a Salem restaurant night manager, received a telephone call at work. The caller, later identified as Huffman, introduced herself as Jenny Jennings and told him she needed to have "somebody done away with" and that Burton had been recommended as a "hit man." During this and a second telephone conversation, Burton arranged a meeting with Huffman later that night at a different restaurant. Burton then contacted the police and told them a woman wanted to hire a killer. Thereafter, he acted on their instructions.
Burton testified that he met and talked with Huffman in a restaurant booth. The police taped the conversation. Huffman described the victim as a married, 50-year-old woman with school-aged children. She suggested that the killer hide among the trees near the victim's house until the victim was alone, then kill her, making the crime look like a robbery or rape. Burton declined the offer, but offered to contact a friend who allegedly did that kind of work.
On December 1, 1979, at 12:12 p.m., Huffman called Burton. The police recorded this conversation also. Burton told her that he had contacted his friend and the friend agreed to do "the job" for $1,000 cash, but demanded $500 in advance. Huffman, unsure about the advance, decided to meet this "friend." She offered to locate a pay phone where the friend could wait for her call to arrange a meeting. She further informed Burton that the killer must complete the job before December 15, when the work shift of the victim's husband changed and he would be at home in the day time. Huffman suggested an alternate plan of spraying the victim with mace paralyzing gas in a parking lot.
Huffman called back to give Burton the number and location of the pay phone she had selected. The police tape revealed that they arranged for her to call Burton's friend there at a particular time. This call was not completed, but a second planned call occurred on December 3, 1979, between Investigator Michael R. Bass, posing as Burton's friend, and Huffman. They scheduled a meeting the same day in a motel parking lot.
The police tapes showed, and Bass testified, that Huffman described the victim as a housewife and outlined murder scenarios. She refused to pay the demanded $500 advance, and they parted. Huffman called Bass at the pay phone that evening. Bass asked for a one-third advance; she refused, saying "I think we might as well forget it."
On December 4, 1979, the police searched Huffman's house and found an aerosol can of mace, a piece of paper bearing the words "Jenny Jennings," another paper bearing the number of the pay telephone and exactly $1,000 in cash.
I. Sufficiency of the Evidence.
Code Sec. 18.2-29 is a product of the 1975 revision of the general laws of Virginia relating to crimes and offenses generally.
Code Sec. 18.2-29. Criminal solicitation; penalty. — Any person who commands, entreats, or otherwise attempts to persuade another person to commit a felony, shall be guilty of a Class 6 felony.
Acts 1975, pp. 21 and 105, effective October 1, 1975.
This court recognized solicitation as a common law offense more than a century ago. In Womack v. Circle, 70 Va. (29 Gratt.) 192, 198 (1877), a civil case, we said: "To solicit another to commit a felony, although the felony be not afterwards committed, is a misdemeanor at common law, indictable and punishable." (Citations omitted). This court addressed the subject again in Wiseman v. Commonwealth, 143 Va. 631, 637-38, 130 S.E. 249, 251 (1925), stating:
[S]ome discussion has arisen as to whether solicitation is an attempt, but it seems well established that to invite or solicit one to commit crime, where no attempt is actually made to commit it, at least in some cases, is indictable at common law as solicitation. Solicitation, or inciting to crime, does not proceed to the point of some overt act in the commission of crime. When it proceeds to this point it becomes an attempt to commit crime and is indictable as such.
In Wiseman, we sustained a conviction under the common law offense for soliciting and requesting another to influence a grand juror. Recently, in Pederson v. Richmond, 219 Va. 1061, 1067, 254 S.E.2d 95, 99 (1979), we affirmed a solicitation conviction under a city ordinance, stating:
Solicitation may comprise a course of conduct, intended to induce another to act, that continues over an extended period. All the evidence bearing upon . . . intent is relevant to a determination of . . . guilt or innocence.
. . . .
. . . It is true . . . that no overt attempt . . . occurred; the relationship . . . never got beyond the discussion stage. But the separate crime of solicitation may be completed before an attempt is made to commit the solicited crime.
The case of Cherry v. State, 18 Md. App. 252, 306 A.2d 634 (1973) is cited in Pederson. In Cherry, the Maryland court contributes this background discussion on solicitation:
The inchoate crimes generally are of recent vintage in the history of the common law. The latest and the least of these is solicitation. Its first formulation, as something distinct from a mere aspect in the law of attempts, was in Rex v. Higgins in 1801, 2 East 5, 102 Eng. Rep. 269 . . . . Solicitation is now universally recognized in the United States as a part of Anglo-American common law. In Clark and Marshall, Law of Crimes (7th ed. 1967), its characteristics are well set out, at 219-223:
"Solicitation is a distinct common-law misdemeanor in which the act forbidden consists of the accused person's parol or written efforts to activate another to commit a criminal offense. It is immaterial whether the solicitation is of any effect and whether the crime solicited is in fact committed . . . .
"The gist of this offense is incitement. In brief, the gravamen of this common-law misdemeanor lay in counselling, enticing, or inducing another to commit a crime . . . .
"Inciting or soliciting another to commit a crime is the act of the least magnitude which is punishable by the common law. In such offenses the actor does nothing himself but he urges others to violate the law. The necessity for punishing such persons is obvious, and such conduct is generally punished as a substantive crime, notwithstanding the solicitation does not move the party solicited to commit the offense."
18 Md. Ap. at 257-58, 306 A.2d at 637-38. See also W. LaFave and A. Scott, Jr., Criminal Law Sec. 58 (1972); Note, Reforming the Law of Inchoate Crimes, 59 Va. L. Rev. 1235, 1260 et seq. (1973); and Wechsler, Jones and Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 60 Colum. L. Rev. 957 (1961).
Considering the relationship of the parties, the trial judge could have believed beyond reasonable doubt from the evidence, direct and circumstantial, that Huffman, a depressed and distraught female, had become enamored of Perkins, was determined to marry him and make their relationship permanent, and concluded that the only way to accomplish her objective was to arrange for the murder of Mrs. Perkins. The fact that she did not call her name or specify her exact identity is no defense. The statute is designed as a deterrent to a person who, by any means, "attempts to persuade" another to commit a felony. Here, the offense was committed on the first night and at the completion of the conferences between Burton and Huffman. Nothing further was required.
II. Entrapment.
Huffman argues that, although Tom Burton was not an agent of the Commonwealth, by contacting Bass on Huffman's behalf, he provided her with the means by which she could commit the alleged offense; and that, hence, the solicitation was the product of police entrapment.
This argument wholly ignores our holding in Cogdill v. Commonwealth, 219 Va. 272, 247 S.E.2d 392 (1978). There, we sustained a conviction for procuring for the purposes of prostitution in violation of Code Sec. 18.2-348, saying:
We have repeatedly held that, when the criminal design originates in the mind of the accused and, thereafter, the Commonwealth does no more than afford an opportunity for the commission of the crime, the defense of entrapment does not lie. Whether the criminal design originated with the accused or was first conceived by the police may, in some cases, be a question of fact for the jury. No such question exists in this case.
219 Va. at 279, 247 S.E. 3d at 396.
Factually, the conduct of Huffman bears a close parallel to that of Cogdill. The intended crime originated in the evil mind of each defendant. Police were brought in merely as a means of permitting the original defendant an opportunity to carry out her criminal plan. We repeat this relevant comment from Cogdill, quoting Neighbors v. Commonwealth, 214 Va. 18, 19, 197 S.E.2d 207, 208-09 (1973): "[I]t is clear that all the police . . . did was to afford an opportunity for the commission of the offense, an opportunity the defendant willingly accepted." 219 Va. at 279, 247 S.E.2d at 396. We hold that the defense of entrapment is unavailable here.
Finding no error in the court below, we affirm the judgment of the trial court.
Affirmed.