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Multiplicity — conviction for inchoate crime of conspiracy and completed crime under § 939.72(2). Constitutional right to speedy trial. Prosecutorial misconduct — failing to disclose sentencing consideration for a state’s witness

State v. Michael Lock, 2013 WI App 80; case activity

Multiplicity — conviction for conspiracy and for completed crime under  § 939.72(2)

Lock was convicted of conspiracy to solicit prostitutes and conspiracy to pander between 1998 and 2003. Based on conduct in four specific months in 2002, he was also convicted of four counts of soliciting prostitutes as a party to the crime and four counts of pandering as party to the crime. (¶¶1, 36). He challenged the conspiracy convictions under § 939.72(2), which prohibits conviction for both “conspiracy and … as party to a [completed] crime which is the objective of the conspiracy[.]”

Concluding that § 939.72(2) is consistent with the multiplicity standard from State v. Derango, 2000 WI 89, ¶¶28-29, 236 Wis. 2d 721, 613 N.W.2d 833, the court of appeals analyzes whether the offenses are identical in fact and law. (¶¶33-34). Relying on the charging documents and the evidence presented at trial regarding acts of pandering and/or solicitation that occurred outside the four specified months in 2002, the court holds the conspiracy was far broader and covered much more conduct than the eight completed offenses; therefore, the conspiracy and completed crimes are not identical in law or fact and Lock can be convicted of both. (¶¶36-38, citing Derango, 236 Wis. 2d 721,¶30 ).

As noted hereState v. Moffett, 2000 WI 130, ¶12, 239 Wis. 2d 629, 619 N.W.2d 918, held § 939.72(2) didn’t preclude a person from being charged for both the conspiracy and completed crime, but it didn’t address whether the defendant could be convicted of both. The court of appeals now reads § 939.72(2) to apply “only where the objective of the conspiracy is limited to the specific [completed] crime.” (¶31). Apparently, then, an ongoing conspiracy with the objective of committing more than one criminal act opens up the prospect of multiple convictions for both conspiracy and completed crimes.

Though it purports to rely on the plain language of § 939.72(2), the court departs in subtle ways from that language. In particular, while the statute refers to “a crime which is the objective of the conspiracy,” the court refers to the objective of the conspiracy and the “objective” of the completed crime. But while conspiracy must have a crime for an object, § 939.31, the completed crime needs no such object: It is self-sufficient, defined by its elements. Saying it has its own objective suggests it is different from, and not part of, the objective of the conspiracy. More striking, the court characterizes the objective of the conspiracy as “maintain[ing] and operat[ing] a prostitution ring….” (¶36). True, at a high level of generality. But there’s no crime of “maintaining and operating a prostitution ring”; rather, the crime or crimes that are the object of the conspiracy must be the specific statutorily defined offenses of pandering or soliciting. By operating at such a high level of generality the court’s analysis becomes untethered from the language of both §§ 939.31 and 939.72(2).

In support of its holding the court (¶38 n.7) cites State v. Hardison, 492 A.2d 1009 (N.J. 1985), which interprets a differently worded statute (N.J.S. 2C:1-8a(2)) precluding conviction of more than one offense if “one offense consists only of a conspiracy or other form of preparation to commit the other.” Based on the drafting commentary of that statute, Hardison concluded this limitation “is confined to the situation in which the completed offense was the sole criminal objective of the conspiracy” and does not apply when the conspiracy also had the objective to commit other offenses. Id. at 1013. The court of appeals doesn’t analyze the New Jersey language, simply calling it “similar”; nor does it discuss the intent behind § 939.72(2), enacted in the 1955 criminal code revision to abrogate the common law rule that a defendant could be convicted of both conspiracy and the completed crime that was the objective. Does the different language or the drafters’ intent matter here? The court doesn’t say, leaving a reader feeling its analysis is (as the court describes Lock’s argument (¶29)) underdeveloped.

Speedy trial

While this case was pending Lock was also being prosecuted in federal court. During a 14-month period while he was tried and then awaiting sentencing in federal court, the federal authorities would not permit him to be transferred to state custody for proceedings in this case. (¶¶14-19). While the delay was presumptively prejudicial, State v. Green, 75 Wis. 2d 631, 636, 250 N.W.2d 305 (1977), it did not deny Lock his constitutional right to a speedy trial:

¶24      The record here shows that the reason for the delay in this case was the federal authorities’ decision not to honor the writ of habeas corpus ad prosequendum issued by the state court.  While Lock does not dispute that fact, he attributes the federal authorities’ actions to the State, arguing that the State and federal authorities were working together to investigate and convict Lock, that as part of that alliance the State and federal authorities made a strategic decision to bring the cases all at once, and therefore, that the State had control over when the federal government brought its case against Lock.  We disagree.

¶25      Lock presents no evidence of this alleged joint strategy.  Such allegations are pure speculation.  He cites to absolutely no evidence in the record demonstrating that the State and federal authorities conspired to delay his trial.  The record simply does not support Lock’s speculation that the State was responsible for the delay caused by Lock’s fourteen months in federal custody.

In addition, Lock was not actually prejudiced by the delay because his pretrial incarceration was due to the two life sentences he was serving for state homicide convictions. Nor is there evidence to support Lock’s claim that the delay either allowed the state to pressure Lock’s co-defendants into cooperating or contributed in any way to his co-defendants’ decisions to testify against him. (¶26).

Prosecutorial misconduct; failure to disclose a state’s witness would receive credit for his testimony

Hankins, a state’s witness, told the jury he had not been promised any consideration for his testimony, though he also said he wanted such consideration. Hankins later moved for sentence modification, and the state supported his request based on his testimony against Lock. (¶¶42-44). The failure to inform the defense Hankins would receive credit for his testimony was not prosecutorial misconduct:

¶45      First, Hankins’ motives for testifying were before the jury.  He testified that he hoped he would get concessions for his testimony. Lock was free to explore that motive for Hankins’ testimony on cross-examination.

¶46      Second, there is no evidence to support Lock’s unfounded accusation that the State knew that it would grant Hankins concessions for his testimony against Lock.  Lock’s assertions in that regard are pure speculation.


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