1. Conspiracy_one side of telephone conversation_insufficient evidence
There was insufficient evidence of a conspiracy to shoot into occupied property and to
commit first-degree murder where one side of a telephone conversation involved a possible
agreement to resolve a money problem but did not mention shooting, killing, or violence. There
was nothing to support an inference that the other person on the telephone even knew about
defendant's plan to use violence.
2. Evidence_other offenses and acts_no plain error
Given the strength of the other evidence, there was no plain error in a prosecution for
soliciting shooting into occupied property in the admission of testimony about defendant's
threats to kill a third party and to engage in a swap of drugs for stolen goods.
3. Evidence_other offenses and acts_no plain error
There was no plain error in a prosecution for soliciting shooting into occupied property in
admitting without a limiting instruction testimony about defendant's intent to have someone shot.
Any error was not so prejudicial that it resulted in a miscarriage of justice.
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Leslie C. Rawls, for defendant-appellant.
HUDSON, Judge.
At the 17 March 2003 session of criminal superior court, a
jury convicted defendant Anthony John Benardello of one count of
Conspiracy to Commit First-Degree Murder, two counts of Conspiracy
to Commit Shooting into Occupied Property, and two counts of
Solicitation to Commit Shooting into Occupied Property. The jury
acquitted defendant of a second charge of Conspiracy to CommitMurder. The court imposed a consolidated sentence of twelve to
fifteen months for the two solicitation charges, a consolidated
sentence of nineteen to twenty-three months for the two conspiracy
to shoot into occupied property charges, and a concurrent sentence
of 151 to 191 months for conspiracy to commit first degree murder.
Defendant appeals. We reverse his conspiracy convictions and
affirm his solicitation convictions.
The evidence tended to show that defendant had loaned fifty
dollars to Wesley Russell (“Russell”) in early 2002. At the time,
Russell lived with his mother, Peggy Russell. Russell was
subsequently unable to repay the loan, and defendant declared he
would begin charging fifty dollars per day in interest, eventually
demanding a total repayment of $1600. Defendant then demanded that
Russell sell Oxycontin pills to repay the debt. Russell took the
pills to the home of his aunt, Louann Linker (“Linker”), who
forbade Russell to sell the drugs. Linker then called defendant
and told him to come and pick up the pills. Defendant later made
threatening statements to both Linker and Russell's mother.
Defendant next told Shawn Llewellyn, an associate, that he
wanted to have someone “shoot up” the Russell and Linker houses and
to “whack” Russell. Llewellyn notified the Cabarrus County
Sheriff's Department and helped Detective Derek Waller set up a
meeting with defendant during which Detective Waller would pose as
a hit man. Detective Waller wore a hidden wire that recorded audio
and video of the entire meeting, which occurred in a restaurant.
Defendant told the detective and Llewellyn about his money problems
and anger at Linker and the Russells, and about his variouscriminal endeavors and experiences. Then defendant received a
brief cell phone call. Defendant's side of the conversation was
recorded and follows, in its entirety:
Yes sir. Uhh, I am working on your money
problem right now. I have somebody who is
going to take care of it and there is no need
to plan anything. Okay, sir. When I get the
money I'll pass it up. No problem sir. No
sir. I'll check with you tomorrow, alright
sir? Alright. [hangs up]
The boss. We all answer to somebody.
[1] The State contends that this evidence revealed three
separate agreements with the unknown third party who called
defendant's cell phone to murder Russell and to shoot into the
Linker and Russell homes. Defendant argues that this single, brief
one-sided phone conversation is insufficient to support even a
single conspiracy conviction, and that the evidence instead reveals
only solicitation. We agree.
This Court has previously addressed the difference between
solicitation and conspiracy:
Solicitation is complete when the request to
commit a crime is made, regardless of whether
the crime solicited is ever committed or
attempted. Conspiracy, on the other hand, is
the agreement of two or more persons to do an
unlawful act or to do a lawful act by an
unlawful means. The reaching of an agreement
is an essential element of conspiracy. It is
certainly possible to solicit another to
commit a crime without the agreement essential
to a conspiracy ever being reached.
State v. Richardson, 100 N.C. App. 240, 247, 395 S.E.2d 143, 148,
appeal dismissed and rev. denied 327 N.C. 641, 399 S.E.2d 332
(1990) (internal citations omitted). Here, the only evidence
pointing to a possible conspiracy is the above-quoted portion of acell phone call, which supports inferences about a possible
agreement to resolve a money problem. There is no mention of
shooting, killing or violence of any kind, and thus nothing to
support an inference that the unknown person on the phone even knew
about defendant's plan to use violence, much less that he or she
agreed to it.
While conspiracy can be proved by inferences and
circumstantial evidence, it “cannot be established by a mere
suspicion, nor does a mere relationship between the parties or
association show a conspiracy.” State v. Massey, 76 N.C. App. 660,
662, 334 S.E.2d 71, 72 (1985). Instead “[i]f the conspiracy is to
be proved by inferences drawn from the evidence, such evidence must
point unerringly to the existence of a conspiracy.” Id. The
evidence here does not point unerringly toward conspiracies to
commit murder or to shoot into occupied properties and is
insufficient to support convictions on those charges.
[2] Defendant next argues that it was plain error for the
court to admit testimony about defendant's alleged threats to kill
a third party and to engage in a swap of drugs for stolen goods
with Detective Waller. We disagree.
“Plain error includes error that is a fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done; or grave error that amounts to a
denial of a fundamental right of the accused; or error that has
resulted in a miscarriage of justice or in the denial to appellant
of a fair trial.” State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d
28, 32 (1996). A defendant must show “that absent this error, thejury would have probably reached a different result.” State v.
Morganherring, 350 N.C. 701, 722, 517 S.E.2d 622, 634 (1999), cert.
denied, 529 U.S. 1024, 146 L. Ed. 2d 322, 120 S. Ct. 1432 (2000).
Given the strength of the other evidence that defendant solicited
the shooting into an occupied property, we are not persuaded that
admission of this evidence was a fundamental error without which
the jury would have reached a different result.
[3] Defendant also argues that it was plain error to admit
without a limiting instruction Shawn Llewellyn's comments to
Detective Waller about defendant's supposed intention to have
someone shot. The testimony from Detective Waller was offered to
provide background to the restaurant meeting between defendant,
Llewellyn, and the detective. Under the plain error standard
discussed in detail above, we conclude that this admission, if
error, was not so prejudicial that it resulted in a miscarriage of
justice or in the denial of a fair trial to appellant.
*** Converted from WordPerfect ***