Price v. State

Concurring Opinion by HARRELL, Judge, joined by BATTAGLIA, Judge generally and Judge WILNER as to Part C only.

I concur in the judgment of the Majority regarding inconsistent verdicts in criminal actions. The accreted hodgepodge of exceptions 1 to Maryland’s traditional toleration of inconsistent *35 verdicts has undermined the intellectual justification for continuing to permit such verdicts. I write separately, however, to encourage clarification of the scope of today’s holding and the proper procedure to be followed by a defendant in the trial court and a trial judge in order to fashion relief from an inconsistent verdict, thereby giving guidance and possibly sparing our appellate courts unnecessary appeals.

A.

Distinguish Factual From Legal Inconsistency

The Majority opinion, while undoubtedly joining the minority of states that prohibit inconsistent verdicts, does not penetrate further into the jurisprudential wilderness. 2 I think it important to note explicitly that the Majority’s holding applies only to “legally inconsistent” verdicts, not “factually inconsistent” verdicts. The Court should continue to recognize factually or “logically” inconsistent verdicts rendered by juries in criminal cases.

A factually inconsistent verdict is one where a jury renders “different verdicts on crimes with distinct elements when there was only one set of proof at a given trial, which makes the verdict illogical.” Ashlee Smith, Comment, Vice-AVerdict: Legally Inconsistent Jury Verdicts Should Not Stand in Maryland, 35 U.Balt. L.Rev. 395, 397 n. 16 (2006). The feature distinguishing a factually inconsistent verdict from a legally inconsistent verdict is that a factually inconsistent verdict is merely illogical. By contrast, a legally inconsistent verdict occurs where a jury acts contrary to a trial judge’s proper instructions regarding the law. The difference be *36 tween the two is perhaps best illustrated by examples from other jurisdictions.

Assume a legally intoxicated or otherwise reckless driver causes a head-on collision, killing on impact the driver and passenger of the other car. The intoxicated driver is charged with two counts of vehicular homicide. The jury convicts the defendant of vehicular homicide as to the death of the driver of the other car, but finds the defendant not guilty of the same crime with regard to the death of the passenger. Such a result would constitute factually inconsistent verdicts. 3

*37 The verdicts in the present case also contain a factual inconsistency. Price was acquitted of being a felon in possession of a handgun, 4 but convicted of possessing a handgun in the course of drug trafficking. 5 , 6 There was no dispute at trial as to Price’s prior felony convictions. Therefore, it is illogical for the jury to find that Price is guilty of possessing a firearm in the course of drug trafficking without possessing a firearm as a convicted felon. Despite the illogical verdict, this does not rise to the level of a legally inconsistent verdict. Thus, if this were the only grounds for challenging Price’s conviction for possession of a handgun in the course of drug trafficking, his conviction should be affirmed.

A legal inconsistency, by contrast, occurs when “an acquittal on one charge is conclusive as to an element which is necessary to and inherent in a charge on which a conviction has occurred.... ” Stephen T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 N.Y.L. Sch. L. Rev. 713 , 740 (1979). Similarly, the Supreme Court of Rhode Island stated that “if the essential elements of the count[s] of which the defendant is acquitted are identical and necessary to prove the count of which the defendant is convicted, then the verdicts are inconsistent.” State v. Arroyo, 844 A.2d 163, 171 (R.I. 2004) (internal quotation omitted). “Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to *38 exist.” People v. Frias, 99 Ill.2d 193 , 75 Ill.Dec. 674 , 457 N.E.2d 1233, 1235 (1983). 7

As Price’s acquittal established conclusively that he was not engaged in drug trafficking, the Majority opinion correctly concludes that the conviction for possession of a handgun while engaged in drug trafficking may not stand.

B.

Relationship to the “Rule of Consistency” in Conspiracy Cases

The Majority’s opinion holding represents a return to ideological consistency regarding legally inconsistent verdicts. It is important to note parallels between the application of this newly announced rule and the “rule of consistency” applicable in conspiracy cases. “As one person alone cannot be guilty of conspiracy, when all but one conspirator are acquitted, conviction of the remaining conspirator cannot stand.” Hurwitz v. State, 200 Md. 578 , 92 A.2d 575, 581 (1952). This “rule of consistency does not apply to separate trials____” Gardner v. State, 286 Md. 520, 528 , 408 A.2d 1317, 1322 (1979); accord State v. Johnson, 367 Md. 418, 430 , 788 A.2d 628, 635 (2002) (“[T]hus, despite the acquittal of all of the respondent’s co-conspirators in a prior trial, the respondent’s conviction for conspiracy must stand.”). There is no requirement that the State even try more than one conspirator. Gardner, 286 Md. at 524-25 , 408 A.2d at 1320 .

As a parallel, the Majority’s opinion should not be read to require that the State even charge an underlying offense in order to maintain “consistency.” Thus, Price could be convicted of possessing a handgun with a nexus to drug trafficking without being charged and tried for drug trafficking. In *39 addition, the Majority opinion’s requirement of legally consistent verdicts should apply only to single trials. 8

The rule announced by the Majority opinion today applies only to outright acquittals rendered by a jury. If a jury deadlocks on one count of an indictment, but convicts on a compound offense of which the aforementioned count is a necessary element, the jury renders only one verdict. Thus, the conviction on the compound crime is not an inconsistent verdict. “In Maryland, a mistrial is equivalent to no trial at all.” Powers v. State, 285 Md. 269, 285 , 401 A.2d 1031, 1040 (1979) (citing Cook v. State, 281 Md. 665, 671 , 381 A.2d 671, 674 (1978)). “Accordingly, a jury’s failure to agree, which results in a mistrial, does not establish any facts” and this may not be said to establish an inconsistency. Powers, 285 Md. at 285 , 401 A.2d at 1040 (citing United States v. Smith, 337 A.2d at 503-04 (Kern, J., concurring)). “Once a mistrial has been declared, all questions of fact remain to be decided----” Cook, 281 Md. at 671 , 381 A.2d at 674 . “A nonverdict, to be sure, does not affirmatively establish one of the opposing poles for a set of inconsistent verdicts.” Butler v. State, 91 Md.App. 515, 548 , 605 A.2d 186, 202 (1992), aff'd, 335 Md. 238 , 643 A.2d 389 (1994). “Moreover, it is logical to focus upon the counts *40 where the jury reached verdicts rather than upon counts representing no decision and establishing nothing.” Ferrell v. State, 318 Md. 235, 255 , 567 A.2d 937, 947 (1990).

C.

Procedure to be Followed in Challenging Inconsistent Verdicts at Trial

The Majority opinion properly notes that “where the issue was preserved” ... “inconsistent verdicts shall no longer be allowed.” Majority slip op. at 21. Because of the “sea change” announced by the Majority’s opinion, some prospective direction is necessary and desirable to highlight the procedure required in order for a defendant to preserve for appellate review a challenge to a legally inconsistent verdict.

The jury may render a legally inconsistent verdict to show lenity to the defendant. Muller, supra at 784; Comment, supra at 28. The defendant should not be foreclosed from accepting the jury’s lenity as a result of the holding of the Majority opinion. Nevertheless, we should not permit the defendant to accept the jury’s lenity in the trial court, only to seek a windfall reversal on appeal by arguing that the jury’s verdicts are inconsistent. Accordingly, a defendant must note his or her objection to allegedly inconsistent verdicts prior to the verdicts becoming final and the discharge of the jury. Otherwise, the claim is waived. 9 “If a defendant claims that a verdict is inconsistent to the point of being self-destructive, he must present that claim to the circuit court before the jury is discharged; if he does not, he waives the claim.” State v. Flemons, 144 S.W.3d 877, 881 (Mo.Ct.App.2004); see also *41 State v. Pelz, 845 S.W.2d 561, 565 (Mo.Ct.App.1992) (“Defense counsel stood silent during the court’s perusal of the error and the prosecutor’s positive acceptance of the verdict. This silence, operating as an acceptance of the verdict, waived any further review....”); People v. Satloff, 56 N.Y.2d 745 , 452 N.Y.S.2d 12, 13 , 437 N.E.2d 271, 272 (1982) (mem.) (“Following discharge of the jury, defense counsel complained, for the first time, of the asserted inconsistency. At this point, it was no longer possible to remedy the defect, if any, by resubmission to the jury for reconsideration of its verdicts. Such a protest must be registered prior to the discharge of the jury properly to preserve the issue for review in this court.” (citation omitted)).

“A verdict that has not been followed by either polling or hearkening, has not been properly rendered and recorded, and is a nullity.” Jones v. State, 173 Md.App. 430, 457 , 920 A.2d 1, 16 (2007). “It is in the absence of a demand for a poll that a hearkening is required for the proper recordation of a verdict.” Jones v. State, 384 Md. 669, 684 , 866 A.2d 151, 160 (2005).

In the absence of a proper demand to have the jury polled, the hearkening and ensuing acceptance of the verdict finally removes the matter from the jury’s consideration. But, despite a hearkening, if a demand for a poll is duly made thereafter, it is the acceptance of the verdict upon the poll that removes the verdict from the province of the jury. In other words, the jury has control of the verdict until it is final. Absent a demand for a poll, the verdict becomes final upon its acceptance when hearkened. When a poll is demanded, the verdict becomes final only upon its acceptance after the poll.

Smith v. State, 299 Md. 158, 168 , 472 A.2d 988, 993 (1984).

Upon timely objection by the defendant 10 to legally inconsistent verdicts, the trial court should instruct or re-instruct the *42 jury on the need for consistency and the range of permissible verdicts. The jurors then should be permitted to resume deliberation. The jury is free to resolve the inconsistency either by returning verdict in the defendant’s favor, convicting on the implicated counts, or deadlocking on a charge so that no inconsistent finding results. “Until the announcement that the verdict has been recorded, the jury has the right to amend or change any verdict; and when it is so amended it is the real verdict of the jury and it may be properly accepted by the court.” Heinze v. State, 184 Md. 613, 617 , 42 A.2d 128, 130 (1945). 11

In sum, a defendant must note his objection to the inconsistent verdict while the trial court has an opportunity to remedy the error, ie., before the verdict is final and the jury is discharged. Failure to do so constitutes waiver.

Judge BATTAGLIA authorizes me to represent that she joins this concurring opinion generally. Judge WILNER authorizes me to represent that he joins in Part C of this concurrence.

. For example, two inconsistent convictions cannot stand. Heinze v. State, 184 Md. 613 , 42 A.2d 128 (1945). Maryland law does not permit inconsistent verdicts by a judge but accepts them from a jury. State v. Anderson, 320 Md. 17, 29 , 575 A.2d 1227, 1233 (1990) Maryland courts do not tolerate inconsistent verdicts in a civil trial. S. Mgmt. v. Taha, 378 Md. 461, 467 , 836 A.2d 627, 630 (2003). In addition, the exception *35 to the general rule that inconsistent verdicts are permitted in criminal jury trials espoused in Hoffert v. State, 319 Md. 377 , 572 A.2d 536 (1990) (discussed in the Majority op. at 20-21, 949 A.2d at 625, n. 3) undermines any remaining justification for continuing to tolerate such verdicts.

. For a survey of the states in the national majority, see Eric L. Muller, The Hobgoblin of Our Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.Rev. 771, 787 n. 80 (1998).

. Both Alaska and Florida, states that we join today in the national minority, addressed situations similar to the hypothetical scenario discussed above. DeSacia v. State, 469 P.2d 369 (Alaska 1970); Naumowicz v. State, 562 So.2d 710, 713 (Fla.Dist.Ct.App.1990). The Florida court properly affirmed the factually inconsistent verdict, noting:

The only exception to the proposition that separate counts must be viewed independently is limited to instances where what the jury fails to find in one count vitiates a guilty verdict on a separate count to the benefit of the defendant. For example, an acquittal of an underlying felony effectively holds the defendant innocent of a greater offense involving that same felony. (Citations omitted.)

Naumowicz, 562 So.2d at 713 .

Alaska is, as far as I have been able to determine, the only jurisdiction that overturns a verdict that a court finds factually illogical. It would be imprudent for appellate judges to attempt to discern from the evidence presented at trial whether a jury’s verdict is factually illogical. Accordingly, I caution against reading too much into the Majority opinion’s use of a quotation from DeSacia . Majority op. at 28, 949 A.2d at 630. Although the Supreme Court of Alaska eloquently notes the conceptual difficulties associated with accepting inconsistent verdicts, the analysis from that particular case should not be adopted in Maryland.

Instead, Maryland should remain safely in the "majority of the minority” of states that prohibit legally inconsistent verdicts while nonetheless permitting logically or factually inconsistent verdicts. Thus, we would join New York (People v. Tucker, 55 N.Y.2d 1 , 447 N.Y.S.2d 132 , 431 N.E.2d 617 (1981)), Florida (Naumowicz, 562 So.2d 710 ), Missouri (State v. Flemons, 144 S.W.3d 877 (Mo.Ct.App.2004)) and Rhode Island (State v. Arroyo, 844 A.2d 163 (R.I.2004)) in declining to intrude and analyze the fact-finding of the jury. Appellate courts are ill equipped to determine whether a jury’s verdict is illogical factually, or merely "curious.” We must be careful not to "confuse a curious verdict with an inconsistent verdict.” Hudson v. State, 152 Md.App. 488, 515 , 832 A.2d 834, 850 (2003). A factual inquiry may be appropriate in the civil context, where the use of a "special verdict” may illuminate the factual basis for a jury’s verdict. Such an inquiry, however, is inappropriate in criminal cases.

. Maryland Code (1957, 1996 Repl Vol.) Article 27, §§ 445(d) and 449(e), recodified at Maryland Code (2003), Public Safety § 5-133.

. Maryland Code (2002), Criminal Law, § 5-621.

. Price also was acquitted of unlawfully wearing, carrying, or transporting a handgun in violation of Maryland Code (2002), Criminal Law, § 4-203. Depending on the facts presented at trial, this also may be inconsistent factually with his conviction for possession of a handgun with a nexus to drug trafficking. Nonetheless, such verdicts are not legally inconsistent. Section 4-203(b) contains numerous exceptions to the prohibition on wearing, carrying, or transporting of a handgun.

. It appears that Illinois no longer prohibits legally inconsistent verdicts, in light of People v. Jones, 207 Ill.2d 122 , 278 Ill.Dec. 45 , 797 N.E.2d 640 (2003). Nonetheless, the definition of a legally inconsistent verdict employed by the Supreme Court of Illinois remains helpful.

. Even Professor Muller, who recommends harmless error review of inconsistent verdicts rendered by a single jury, has no objection to inconsistent verdicts rendered by separate juries.

While it is admittedly uncomfortable—especially in a death penalty case—to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there’s any reason to see legal error of any kind in the second jury’s verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and the argument of my Harvard article [Muller, supra note 1] is that the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred—let alone that the erring jury was [the] "harsher” one.

Is That Legal, http://www.isthatlegal.org/archives/2006/08/post_6.html (4 August 2006, 10:15 AM).

. In fact, quite often a defendant's optimal choice will be to remain silent, thus waiving his challenge to the inconsistent verdicts and accepting the conviction that may be inconsistent. A defendant, aware of his or her guilt, or the overwhelming evidence of guilt, of all of the crimes of which he or she stands charged, may choose to accept the jury’s lenity. A defendant may be wise to accept the inconsistent conviction and accompanying sentence, rather than look a gift horse in the mouth. If the defendant objects to the inconsistent verdicts, the jury, given a second chance, may choose to remedy the error in a manner not in the defendant's favor.

. Because the rule against legally inconsistent verdicts is intended to protect the criminal defendant, the State may not object to the inconsistent verdicts. The option belongs only to the defendant.

. There is no double jeopardy consequence in permitting the trial court, upon the defendant’s request, to re-instruct the jury and permit it to return to deliberations. The defendant knowingly and affirmatively waives any challenge to the jury’s reconsideration of the inconsistent verdicts by objecting to the inconsistent verdicts before they become final. Even if the issue is not waived when the defendant objects, the double jeopardy prohibition only "prevents further deliberation on an acquittal only after that verdict is final.” Muller, supra at 829; see State v. Peters, 855 S.W.2d 345, 347-48 (Mo.1993) (en banc) ("We hold that the first two verdicts the jury attempted to return were inconsistent because if the defendant was not guilty of assault, he cannot be guilty of armed criminal action based on assault. The court acted properly in sending the matter back to the jury for further consideration. In addition, we hold that the action of the court did not subject Peters to double jeopardy.”)