IN THE SUPREME COURT OF THE STATE OF ARIZONA

En Banc

 

MICHAEL EVANCHYK, ) Arizona Supreme Court 

) No. CV-01-0358-CQ 

 Petitioner, ) 

) United States District Court

V. ) No. CIV-00-09-TUC-WDB 

) 

TERRY L. STEWART, et al., ) 

) O P I N I O N

Respondents. ) 

__________________________________________) 

Certified Questions from

United States District Court for the District of Arizona

The Honorable William D. Browning, Judge

QUESTIONS ANSWERED

Pima County Public Defender Tucson

By: Susan A. Kettlewell

Brian X. Metcalf

Attorneys for Petitioner

Janet A. Napolitano, Arizona Attorney General Phoenix

By: Randall M. Howe, Chief Counsel

Criminal Appeals Section

and Diane M. Ramsey, Assistant Attorney General

Attorneys for Respondents
2

FELDMAN, Justice

¶ 1 Michael Evanchyk filed a petition for writ of habeas corpus in the United States District

Court for the District of Arizona. Seeking relief under 18 U.S.C. § 2254, Evanchyk named Terry L.

Stewart, Director of the Arizona Department of Corrections, and others as Respondents (“the state,”

collectively). District Judge William D. Browning certified questions of Arizona law to this court.

See Rule 27, Ariz.R.Sup.Ct. We accepted jurisdiction, ordered supplemental briefing, and heard oral

argument. 

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In his certification order, the district judge adopted the facts from the court of appeals

decision affirming Evanchyk’s conviction. We do the same. 

[Evanchyk] was assaulted by another resident of his apartment

complex, Dean Harris. Several days later, at about 1:30 a.m., [Evanchyk]

banged on the window of Harris’ apartment and said, “[C]ome out, we

want to kill you.” Throughout the rest of the day, [Evanchyk] and his

friends, Dennis Vaillancourt, Carlos Ybarra, and Jack Olson, made several threats to Harris and his girlfriend Sonya Evans, and repeatedly

said they wanted to “kick Dean’s ass” for what he did to [Evanchyk].

That evening, Evans answered the door of the apartment she

shared with Harris and was accosted by Vaillancourt’s girlfriend. Olson

came in right behind her followed by Vaillancourt, Ybarra, and

[Evanchyk], and knocked Harris down. One of them said, “we are here

to hurt you.” Harris ran into the bedroom and Olson, Ybarra, and

[Evanchyk] followed, breaking the door down. After Vaillancourt separated the women, Evans went toward the bedroom and saw Olson run

out. In the bedroom Evans saw Ybarra holding a baseball bat and

[Evanchyk] putting his left arm around Harris and making a “jabbing

motion” with his right arm. She immediately went to Harris and found

blood on his chest. Harris died of multiple blunt and sharp force injuries,

primarily a stab wound to the heart. 

State v. Evanchyk, No. 2 CA-CR 94-0533, mem. dec. at 2-3 (filed April 23, 1996). 

¶ 3 The state charged Evanchyk with first-degree murder, first-degree burglary, and conspiracy

to commit murder. He and his accomplices were tried together in Pima County Superior Court. At

the close of trial, the judge instructed the jury on first-degree murder (including both felony murder
1

 First-degree murder is a single crime, and a defendant may be convicted even though some

jurors base the conviction on premeditation and others on felony murder, but alternate verdict forms

are recommended. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989). 

3

and premeditation theories), second-degree murder, manslaughter, and burglary. Evanchyk was acquitted

of first-degree murder and burglary but convicted of both conspiracy to commit first-degree murder

and second-degree murder. He was subsequently sentenced to concurrent prison terms of twenty-five

years for conspiracy and fifteen years for second-degree murder. The jointly tried codefendants were

found guilty of burglary, conspiracy to commit first-degree murder, and first-degree murder. According

to the verdict forms, eleven jurors based the first-degree murder conviction of one codefendant on

felony murder only, while all twelve jurors based the other codefendant’s conviction on felony murder

only.1

¶ 4 Our court of appeals affirmed Evanchyk’s convictions, finding there was substantial

evidence to support the guilty verdict on the conspiracy charge, and we denied review by order dated

September 30, 1996. In 1997, Evanchyk filed a petition for post-conviction relief under Rule 32,

Ariz.R.Crim.P. He argued for the first time that he was convicted of a non-existent crime because

Arizona law does not recognize the crime of conspiracy to commit first-degree murder when that murder

is based on felony murder. He argued further that he had been denied effective assistance of trial counsel

because his lawyer failed to challenge the validity of the conspiracy charge and that, for the same reason,

he had been denied effective assistance of appellate counsel. The trial judge refused an evidentiary

hearing, finding that Evanchyk had not raised a colorable claim of ineffective assistance, and summarily

dismissed the petition. Evanchyk then sought review by the court of appeals. That court granted review

but denied relief, holding that it “need not answer the theoretical question whether conspiracy to commit

first degree murder may be based on felony murder because on [direct] appeal we concluded there

was substantial evidence of an agreement among the co-defendants to murder the victim.” State v.

Evanchyk (Evanchyk II), No. 2 CA-CR 97-0505, mem. dec. at 2 (filed August 4, 1998). In 1999, we

denied Evanchyk’s petition for review. 
4

¶ 5 Evanchyk then filed the petition for writ of habeas corpus now pending in the district

court. In that petition, he raised essentially the same claims he raised in Evanchyk II. Dismissing some

of Evanchyk’s arguments as falling outside the scope of federal habeas relief, the district judge nevertheless found that federal habeas relief might be available if Evanchyk were actually convicted of a crime

that does not exist in Arizona. The judge noted that in essence, Evanchyk’s claim is “that the jury

was presented with two possible legal theories on which it could convict [Evanchyk] of conspiracy

to commit first degree murder. As instructed, the jury could have convicted him on conspiracy to commit

first degree premeditated murder or it could have convicted him on conspiracy to commit first degree

felony murder.” Order Certifying Question to Arizona Supreme Court, October 10, 2001, at 11 (emphasis

in original). Thus, the district judge concluded, “before deciding whether habeas relief is warranted,”

the Arizona Supreme Court should “define the specific intent required for conspiracy to commit first

degree murder.” Id. This conclusion was based on the fact that the conviction must be set aside “when

a jury returns a general verdict that ‘is supportable on one ground, but not on another, and it is impossible

to tell which ground the jury selected.’” Id. (quoting Yates v. United States, 354 U.S. 298, 312, 77

S.Ct. 1064, 1073 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct.

2141 (1978)). 

¶ 6 With this factual and procedural background in mind, we turn now to the questions

propounded by the district judge. We reformulate those questions as follows: 

1. Under Arizona law, may a defendant be convicted of conspiracy to commit first-degree

murder when that conviction is based only on the commission of felony murder? 

2. Under Arizona law, if the defendant could be convicted of conspiracy to commit firstdegree murder, must that defendant have possessed an intent to kill? 

3. Under Arizona law, may a defendant be convicted of conspiracy to commit first-degree

murder if he had merely the requisite intent to commit the underlying felony?
2

 Punishable by life imprisonment without possibility of parole for twenty-five years. 

5

DISCUSSION

¶ 7 In answering the questions propounded to us, we do not address the propriety or nature

of the jury instructions given in Evanchyk’s trial, the effect of such instructions when the Yates doctrine

is applied, or the propriety of federal habeas relief. These are all questions for the district judge. We

confine ourselves to answering the questions he asked. 

¶ 8 We turn first to the elements of conspiracy. The statute reads, in part, as follows: 

A person commits conspiracy if, with the intent to promote or

aid the commission of an offense, such person agrees with one or more

persons that at least one of them or another person will engage in conduct

constituting the offense and one of the parties commits an overt act in

furtherance of the offense, except that an overt act shall not be required

if the object of the conspiracy was to commit any felony upon the person

of another, or to commit an offense under § 13-1508 or 13-1704.

A.R.S. § 13-1003(A) (emphasis added). 

¶ 9 Thus, the crime of conspiracy requires both that the perpetrator have an intent to promote

or aid commission of a specific offense and that he agrees with another person that the offense be

committed. If the goal of the conspiracy is to commit murder, a class 1 felony according to A.R.S.

§ 13-1003(D),2

 no overt act is required. We have therefore held that the state must prove that the defendant

had the “intent to promote the offense of murder and an agreement with another that one will do the

actual killing.” State v. Willoughby, 181 Ariz. 530, 545, 892 P.2d 1319, 1334 (1995); see also State

v. Arredondo, 155 Ariz. 314, 317, 746 P.2d 484, 487 (1987); State v. Ortiz, 131 Ariz. 195, 205 639

P.2d 1020, 1030 (1981), disapproved on other grounds by State v. Gretzler, 135 Ariz. 42, 659 P.2d

1 (1983).

¶ 10 Given the elements of conspiracy — intent and agreement to commit the offense —

logic would dictate that if the goal of the conspiracy is realized and a killing actually takes place, the

conspiracy would necessarily have been to commit premeditated murder under A.R.S. § 13-1105(A)(1).

Any agreement with another to kill a third person constitutes premeditation, the mental state that exists
6

under Arizona law whenever the intention to kill “precedes the killing by a length of time to permit

reflection.” A.R.S. § 13-1101(1). But the crime of first-degree murder can be committed without

premeditation if it occurs during the “course of and in furtherance” of any one of a number of enumerated

felonies. See A.R.S. § 13-1105(A)(2). Proof of felony murder does not require an intent to commit

the underlying felony. A.R.S. § 13-1105(B).

¶ 11 The core question presented here is whether one can be convicted of conspiracy to commit

first-degree murder when the state does not prove that the killing was committed with premeditation

but only that it occurred in the course and furtherance of committing one of the underlying felonies

listed in A.R.S. § 13-1105(A)(2). Defendants in a number of Arizona cases have been convicted of

both first-degree murder and conspiracy to commit first-degree murder. But none of these cases addressed

the precise question certified to us. In at least two of our cases, the defendant was not only convicted

of conspiracy to commit first-degree murder but convicted also of premeditated first-degree murder.

See, e.g., Willoughby, 181 Ariz. 530, 892 P.2d 1319; State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993).

¶ 12 In Willoughby, citing A.R.S. § 13-1003(A), we concluded there was sufficient evidence

to support a conviction for conspiracy, pointing out that the elements the state needed to prove “are

intent [and] an agreement.” 181 Ariz. at 540, 892 P.2d at 1329. We indicated that appellate courts

“generally focus on the agreement element.” Id. In Apelt, we upheld the conspiracy conviction, concluding the evidence showed prearrangement and thus justified the conclusion that the defendant and his

brother not only killed but intended and premeditated the killing. 176 Ariz. at 360, 861 P.2d at 645.

It therefore made no difference to the conspiracy count whether the defendant, his brother, or both

actually committed the murder. Id. 

¶ 13 Authority from other states is more specific. The California Supreme Court, for example,

has held that when two or more persons conspire by agreeing to and intending to commit the target

offense of murder, “each has acted with a state of mind ‘functionally indistinguishable from the mental

state of premeditating the target offense of murder.’” People v. Cortez, 960 P.2d 537, 542 (Cal. 1998)

(quoting People v. Swain, 909 P.2d 994, 1002-03 (Cal. 1996)); see also People v. Gilbert, 455 N.W.2d
3

 Greenawalt’s crime was committed prior to the repeal. 

7

731, 735 (Mich.App. 1990) (essence of conspiracy “is a specific, mutual agreement to perform the

crime in question”; the agreement thus involves advance planning to perform specific criminal act.).

¶ 14 The state does not quarrel with the proposition that intent and agreement to kill must

be proven to convict of conspiracy to commit first-degree murder. Relying on a felony murder case

in which we found no error in the trial judge’s instructions on “conspiracy as a ground of vicarious

criminal responsibility,” it argues that a defendant may be convicted of conspiracy to commit first-degree

murder while committing only felony murder. See State v. Greenawalt, 128 Ariz. 150, 168, 624 P.2d

828, 846 (1981). This is correct, but only in part. Greenawalt seems to confuse the separate crime

of conspiracy with a defendant’s responsibility as an accomplice. In approving the conspiracy instruction,

we stated that it was “no more than a re-statement of the criminal responsibility found in A.R.S. § 13-139,

that is, if appellant encouraged, advised, or assisted” his codefendants and thus furthered the undertaking

he had become a “participant conspirator.” Id. at 170, 624 P.2d at 848. But A.R.S. § 13-139 dealt

with principals and accessories to crimes and has since been repealed. See 1977 Ariz. Sess. Laws ch. 142,

§ 2 (effective October 1, 1978)3

 Finally, in Greenawalt we did not discuss the precise question presented

here and found that the instruction given on conspiracy “added nothing” to the felony murder theory

advanced by the state because the defendant was an accomplice who participated in the underlying

felonies. Thus, we concluded the instruction neither misled nor confused the jury. 128 Ariz. at 170,

624 P.2d at 848. We have just recently clarified this by holding that premeditated murder is a specific

intent crime so that a defendant cannot be convicted of it when the state proves only that he was only

an accomplice to the underlying felony. State v. Phillips, No. CR-99-0296-AP, slip op. at ¶¶ 37-43,

(filed May 24, 2002). Nor can the defendant be convicted of felony murder committed by a codefendant

unless he was both an accomplice and a participant in the underlying felony. Id. at ¶ 46. 

¶ 15 We have held that responsibility as a conspirator is different from accomplice liability.

One may be convicted as a conspirator on proof that he intended a specific act and agreed to promote
4

 Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 (1946). 

8

or facilitate that act. State ex rel. Woods v. Cohen, 173 Ariz. 497, 499-500, 844 P.2d 1147, 1149-50

(1992). The state need not prove commission of the agreed-upon act. But the “fact that one can be

[guilty] of conspiracy without committing the planned substantive offenses does not mean that one

is also criminally responsible for the substantive offenses without being either an accomplice or principal

to those offenses.” Id. Thus, we rejected the so-called Pinkerton doctrine,4 which holds a conspirator

guilty for foreseeable crimes committed by his coconspirator in furthering the conspiracy even though

he did not intend or agree on those crimes. Id. at 501, 844 P.2d at 1151. 

¶ 16 Considering the statute and the case law, we must conclude that conspiracy to commit

first-degree murder is a specific-intent crime and that to convict, the state must prove as elements that

the defendant intended to kill and entered into an agreement with a coconspirator to commit the crime

of murder. By definition, then, the defendant and his coconspirator would have premeditated the killing.

Thus, if completed, and if accomplice liability is established, the defendant would be guilty of first-degree

premeditated murder. 

¶ 17 But the state’s position is partially correct. To prove conspiracy to commit first-degree

murder, the state is not required to prove that the defendant or his coconspirator committed any overt

act to accomplish the conspiracy. A.R.S. § 13-1003(A). Thus, a defendant may be convicted of conspiracy

to commit first-degree murder even though there is no overt act and no murder occurs. Cohen, 173

Ariz. at 499-500, 844 P.2d at 1149-50. It follows that so long as the intent and agreement to kill are

proved, the defendant may be convicted of conspiracy to commit first-degree murder even though

he or a coconspirator is convicted of nothing else or nothing more than second-degree murder, felony

murder, or some lesser crime. Further, a defendant could be convicted of conspiracy to commit firstdegree murder and of the completed crime of second-degree murder even though, under the facts of

the case, the verdicts were inconsistent. See, e.g., State v. DiGiulio, 172 Ariz. 156, 162, 835 P.2d 488,

494 (App. 1992) (upholding verdict for trafficking even though jury acquitted of theft); State v. Zakhar,
9

105 Ariz. 31, 459 P.2d 83 (1969). Conversely, because conspiracy to commit first-degree murder

cannot be proved without establishing that the defendant premeditated by forming an intent to promote

or aid in killing and making an agreement to kill, proof that the defendant had no more than the requisite

intent to aid, promote, or commit the underlying felony is insufficient to convict of conspiracy to commit

first-degree murder. 

CONCLUSION

¶ 18 We therefore answer the questions as follows: 

1. Under Arizona law, a defendant may not be convicted of conspiracy to commit first-degree

murder when that conviction is based only on the commission of felony murder. 

2. Under Arizona law, a defendant can be convicted of conspiracy to commit first-degree

murder if the state proves the defendant possessed an intent to kill or to promote or aid in killing and

made an agreement to kill. The state need not prove the completed offense nor, for that matter, any

other offense. 

3. Under Arizona law, a defendant may not be convicted of conspiracy to commit first-degree

murder if he had merely the requisite intent to commit the underlying felony. 

____________________________________

STANLEY G. FELDMAN, Justice
10

CONCURRING: 

__________________________________________

CHARLES E. JONES, Chief Justice

__________________________________________

RUTH V. McGREGOR, Vice Chief Justice

__________________________________________

EDWARD C. VOSS, Judge*

__________________________________________

THOMAS A. ZLAKET, Justice (retired)

* Due to a vacancy on the court, pursuant to article VI, § 3 of the Arizona Constitution, the Honorable

Edward C. Voss, Judge of the Court of Appeals, Division One, was designated to sit on this case.