State v. Bireley

¶1 concurring. While agreeing that the state should be denied leave to appeal, I write separately because I believe the question asked by defense counsel was entirely proper. Why shouldn’t the jury be permitted to know that no other person had been charged in the case? Defendant was indicted for conspiracy to murder her husband. In order for a “conspiracy” to exist, there must be fellow conspirators. Why weren’t they charged? Presumably the state is able to answer such a question, and I have no doubt the jury would have liked to know such answer. The answer could be quite simple! Others were not charged because there was insufficient *237 evidence to convict them. The jurors surely wondered, and were entitled to know why others were not charged. The state’s failure to charge any co-conspirator may well have been easily explained. Assuming, arguendo, defendant was indeed guilty of conspiracy to murder her husband, the state’s failure to explain why her fellow conspirator(s) were not charged may be the precise reason the jury acquitted her. The prosecutor is “hoisted by his own petard.”