This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Charlotte Dee Johnson, n/k/a
Charlotte Dee Myers,
Filed September 27, 2005
Otter Tail County District Court
File No. K9-03-774
Mike Hatch, Attorney General, Thomas R. Ragatz, Jennifer Dekarske, Assistant Attorneys General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and
David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, Otter Tail County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)
Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of conspiracy to commit first-degree murder and attempt to commit first-degree murder, appellant argues that the evidence is insufficient to support her convictions, that the prosecution committed prejudicial error, and that the district court violated her Sixth Amendment rights by denying her request for a downward departure and imposing the presumptive guidelines sentence. We affirm in part and reverse in part.
In February 2003, an informant told agents at the Minnesota Bureau of Criminal Apprehension that appellant Charlotte Dee Johnson, n/k/a Charlotte Dee Myers, (Myers) had offered the informant a Harley Davidson motorcycle if he would kill her former boyfriend, G.S. The informant agreed to call Myers to see if she was still interested in having G.S. killed. He subsequently told Myers that he had a friend interested in a Harley Davidson and “the same other things that [they] were interested in.” Myers told the informant that he should have his friend call her.
On March 3, 2003, Agent Todd Taylor, posing as the informant’s friend “Brian,” called Myers and mentioned that he was interested in a Harley. Myers indicated that she understood what Agent Taylor was talking about, and they agreed to meet to discuss the details. At a meeting two days later, Myers reaffirmed her interest in having Agent Taylor kill G.S., and she gave Agent Taylor directions and a map to G.S.’s house. She also gave Agent Taylor a photograph of G.S. so that Agent Taylor could identify him. They also discussed whether Myers would pay Agent Taylor with a motorcycle or with cash. Myers told Agent Taylor of her plan to have the murder look like a “bad dope deal.”
Myers testified at her jury trial. After the defense rested, the state recalled Myers in its rebuttal case. Myers’s attorney objected and requested a bench conference. The jury was dismissed, and the prosecutor explained that she wanted to conduct further cross-examination so that she could impeach Myers with testimony elicited from other defense witnesses who testified after Myers took the stand. But the prosecutor withdrew her request, and Myers did not take the stand on rebuttal.
The jury found Myers guilty of both charges. The district court denied Myers’s request for a downward durational departure and imposed the presumptive 220-month sentence for the conspiracy conviction. The district court did not impose an additional sentence for the attempt conviction because it determined that the attempt conviction stemmed “from essentially the same behavior conduct and is not subject to double punishment.” Myers challenges her convictions and her sentence on appeal.
D E C I S I O N
argues that her convictions for conspiracy to commit first-degree murder and attempt
to commit first-degree murder are unsupported by the record. When an appellant challenges the
sufficiency of the evidence, our review is limited to a thorough analysis of
the record to determine “whether the facts in the record and the legitimate
inferences drawn from them would permit the jury to reasonably conclude that
the defendant was guilty beyond a reasonable doubt.” Davis v. State, 595 N.W.2d 520, 525 (
A. Conspiracy to commit first-degree murder
occurs when one “conspires with another to commit a crime” and requires proof
that “in furtherance of the conspiracy one or more of the parties does some overt act.” Minn. Stat. § 609.175, subd. 2 (2002). The state need not prove that the alleged
conspirators entered into a formal agreement to commit a crime. State
v. Hatfield, 639 N.W.2d 372, 376 (
Myers argues that the overt act in furtherance of the conspiracy must occur after the agreement to commit the crime and that she and Agent Taylor did not agree that Agent Taylor would kill G.S. until April 22, 2003, when she gave Agent Taylor title and a key to a motorcycle. Because there is no evidence of an overt act occurring after April 22, 2003, Myers argues that the state failed to prove that she committed an overt act in furtherance of the conspiracy.
The record shows that throughout the course of Myers and Agent Taylor’s discussions, Myers wanted Agent Taylor to kill G.S. and that Agent Taylor led her to believe that he would. The two discussed killing G.S. during their first telephone conversation on March 3, 2003. Throughout March and April 2003, Myers repeated her intentions to have Agent Taylor kill G.S. The record shows that, other than working out the amount and method of payment, Myers and Agent Taylor were in agreement that Agent Taylor would kill G.S. We conclude that their conversations objectively indicate that Myers and Agent Taylor agreed that Agent Taylor would kill G.S. for Myers and that Myers would pay Agent Taylor with either a motorcycle or $4,000 cash.
The evidence also shows that Myers committed an overt act in furtherance of the conspiracy. Myers provided Agent Taylor with directions, a map, and a picture so that he could kill G.S. She also gave Agent Taylor the title and a key to a motorcycle as payment for the murder. We conclude that Myers’s conduct constitutes an overt act in furtherance of the conspiracy to kill G.S.
Because the facts in the record and the legitimate inferences drawn from them would allow the jury to conclude beyond a reasonable doubt that Myers and Agent Taylor agreed that Agent Taylor would kill G.S. and that Myers committed an overt act in furtherance of the conspiracy, we conclude that the evidence is sufficient to support Myers’s conviction of conspiracy to commit first-degree murder.
B. Attempt to commit first-degree murder
A person is guilty of the crime of attempt if
that person has intent to commit a crime and takes a substantial step toward
the crime’s commission. Minn. Stat.
§ 609.17, subd. 1 (2002); State v.
Olkon, 299 N.W.2d 89, 104 (
Myers argues that because she only agreed that Agent Taylor should kill G.S., she committed no substantial step toward the commission of the murder. She argues that “[i]f there was no overt act after the agreement was reached between Ms. Myers and Agent Taylor, a fortiori there was no ‘substantial step toward, and more than preparation for the crime.’” But as explained above, there were overt acts in furtherance of the conspiracy: Myers’s tendering of the directions, the map, the photo of G.S., and the motorcycle title and key.
Myers also argues that there was no substantial step toward the crime’s commission because Agent Taylor did not and never intended to carry out G.S.’s murder. But the statute defining attempt precludes impossibility as a defense to attempt. Minn. Stat. § 609.17, subd. 2 (2002); State v. Saybolt, 461 N.W.2d 729, 734 (Minn. App. 1990) (noting that “under Minn. Stat. § 609.17, subd. 2, impossibility of success is no defense to an attempt”), review denied (Minn. Dec. 17, 1990). That Agent Taylor never intended to kill G.S. is not a defense to the attempt charge.
But solicitation of a crime is not enough to
sustain a conviction for attempt.
Here, although Myers committed overt acts in furtherance of the conspiracy, those acts were preparation for and remote in time and place from the intended murder of G.S. When Myers provided Agent Taylor with the directions, the map, and the photograph of G.S., Agent Taylor indicated that “it won’t happen for a couple weeks.” At their final meeting when Myers gave Agent Taylor the title and a key to a motorcycle, Agent Taylor told Myers that it would be several days before he could kill G.S. and that he would call her the next week when it was done. This meeting took place in Sebeka, and Agent Taylor was to kill G.S. at G.S.’s home in Walnut Grove, more than 200 miles away. Because Myers’s acts were preparation for and remote in time and place from the intended murder of G.S., we conclude that she did not commit a substantial step toward the commission of the crime and that the evidence, therefore, does not support Myers’s conviction of attempt to commit first-degree murder. We reverse that conviction.
next argues that the prosecutor committed prejudicial error by re-calling her
in its rebuttal case in violation of her Fifth
Amendment privilege against self-incrimination. When considering a claim of prosecutorial
misconduct, this court should “reverse only if the misconduct, when considered
in light of the whole trial, impaired the defendant’s right to a fair
trial.” State v. Powers, 654 N.W.2d 667, 678 (
“[T]he fifth amendment protects only
against compelled self-incrimination of a communicative or testimonial nature.” State
v. Bebel, 383 N.W.2d 724, 726 (
also argues that her sentence must be reversed because the Minnesota Sentencing
Guidelines “may not be read as restricting a district court to the guideline
range in the absence of a jury finding of facts necessary to make an upward or
downward departure.” The district court denied
Myers’s request for a downward durational departure and imposed the presumptive
guidelines sentence. Myers argues that the
guidelines are “unconstitutional on their face.” Myers raises a constitutional issue, which
this court reviews de novo. State v.
Myers bases her argument on United States v. Booker, in which the
United States Supreme Court held that under Blakely v. Washington, the federal sentencing guidelines are
argues that her sentence is unconstitutional because the “scheme under which
the District Court operated made a sentence of the sort imposed by the trial
court judge mandatory,” and therefore the sentence violates her Sixth Amendment
rights under Booker. But
the Minnesota Supreme Court, when considering Blakely’s effect on the
the Supreme Court noted that the sentence of one of the defendants in Booker was “authorized by the jury’s
verdict” and that the sentence, therefore, did not violate the Sixth Amendment
under Blakely. Booker,
Affirmed in part and reversed in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.