State v. Verive
627 P.2d 721 (1981)
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Rule of Law:
Convictions for both conspiracy to commit an offense and attempt to commit the same offense do not violate double jeopardy because the two are distinct crimes. Conspiracy requires proof of an agreement, which attempt does not, while attempt requires proof of an overt act that goes beyond mere preparation, a higher standard than the overt act required for conspiracy.
Facts:
- Howard Woodall filed a false affidavit in a civil court proceeding.
- Lee Galvin filed a subsequent affidavit exposing Woodall's perjury.
- Woodall and Charles Anthony Verive entered into an agreement for Verive to assault Galvin in order to dissuade him from being a witness against Woodall.
- In exchange for the assault, Woodall agreed to pay Verive $900 and give him a motorcycle.
- On December 3, 1973, Verive, accompanied by Mr. Baugh, drove to Galvin's residence.
- Verive confronted Galvin at his doorway, stated, 'Do you know Howard Woodall? Well, he sent us,' and proceeded to beat Galvin.
- Galvin's wife and son intervened in the scuffle to rescue him.
- Later, Verive admitted to John Harvey Adamson that Woodall had hired him to assault a witness.
Procedural Posture:
- Charles Anthony Verive was charged by grand jury indictment with one count of conspiracy to dissuade a witness and one count of attempt to dissuade a witness.
- Verive filed a pre-trial motion for a new finding of probable cause, which the trial court denied.
- The case proceeded to a six-day trial in the superior court, which is the trial court of first instance.
- A jury rendered guilty verdicts on both counts.
- The trial court entered judgments of guilt and sentenced Verive to concurrent prison terms.
- Verive (appellant) appealed his convictions to the Court of Appeals of Arizona.
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Issue:
Do convictions and sentences for both conspiracy to dissuade a witness and attempt to dissuade a witness, arising from the same criminal transaction, violate constitutional prohibitions against double jeopardy?
Opinions:
Majority - Haire, Presiding Judge
No. Convicting a defendant for both conspiracy and attempt for the same criminal objective does not violate double jeopardy because they are separate and distinct offenses. The court applied the Blockburger test, which determines whether two offenses are the same by asking if each statutory provision requires proof of an additional fact which the other does not. Conspiracy requires proof of an agreement between two or more people, an element not required for an attempt. Conversely, the crime of attempt requires an overt act that goes beyond mere preparation and moves unequivocally toward consummating the intended crime. This is a more substantial act than the overt act required for conspiracy, which can be a minor preparatory step taken to put the illicit agreement into effect. Because each offense contains a unique element the other lacks, they are not the same offense for double jeopardy purposes, and a defendant may be constitutionally convicted of and punished for both.
Analysis:
This decision clarifies the legal distinction between the inchoate crimes of conspiracy and attempt under Arizona law, affirming they are not lesser-included offenses of one another. By establishing that the overt act for an attempt must be more significant than that required for a conspiracy, the ruling allows prosecutors to secure convictions for both crimes arising from a single course of conduct. This reinforces the distinct societal harms that each crime addresses: conspiracy targets the danger of collective criminal enterprise, while attempt targets conduct that comes dangerously close to succeeding. The case sets a clear precedent that cumulative punishment for both planning and trying to commit a crime is permissible.
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