Ferrell v. State

567 A.2d OF MARYLAND COMMISSION GRIEVANCE ATTORNEY George KARIOTIS. Nicholas BV) Term, (Subtitle 35, Sept. 1989. No. Misc. Maryland. Appeals of of Court 8, 1990. Jan.

ORDER by filed to disbarment of the consent Upon consideration Rule Maryland in accordance Kariotis Nicholas George Counsel, Bar of recommendation 2, and the written d BV12 of January, 8th day is this it Maryland, of Appeals of ORDERED, the Court disbarred he is Kariotis, be, hereby, George Nicholas of in the State of law practice from the further consent is further Maryland; strike the shall of this Court the Clerk

ORDERED register from the Kariotis George Nicholas name BV13, shall Rule Maryland pursuant attorneys, Security of the Clients’ the Trustees fact to certify that in the tribunals judicial clerks of all Trust Fund and State. A.2d 937

Avery V. FERRELL Maryland. STATE Term, 13, Sept. No. Maryland. Appeals 9, 1990.

Jan. George Anderson, Defender Asst. Public Felipé José Murrell, (Alan H. Burns, Public Defender Jr., Asst. E. Baltimore, brief), petitioner for Defender, all on Public cross-respondent. Curran, Jr., (J. Smith, Joseph Atty. Asst. Gen. J.

Valerie Baltimore, brief), respondent for Gen., both Atty. cross-petitioner. ELDRIDGE, MURPHY, C.J., and

Argued before McAULIFFE, ADKINS and RODOWSKY, COLE, BLACKWELL*, JJ.

ELDRIDGE, Judge. of the doc- applicability case involves the

This criminal acquitted a defendant was estoppel where trine of collateral document, charging where of a on one count two-count count, where on the other agree to jury was unable same, and where counts was the disputed issue under both offense on retried for the subsequently the defendant was agree. been unable previously had which facts, by prosecution’s The as disclosed pertinent evidence, morning April are as follows. On aby at gunpoint a were robbed girl and school three women mask, a a wearing ski handgun a carrying lone man sweatshirt, tennis shoes. long gray a coat and hooded blue * Blackwell, J., retired, hearing participated and conference now Court; being recalled of this after while an active member of this case Constitution, 3A, IV, partici- Section he also pursuant Article adoption opinion. pated of this in the decision and During the course of the robbery, one of the victims at- tempted to flee the scene at which time the robber fired a from shot the handgun grabbed fleeing victim’s pocketbook. As the scene, robber fled the he was followed a short distance one of the victims who later testified that she observed the changing robber clothes as he was running away. police called, were arrived the scene immediately, began for searching in a apartment robber nearby

development. One of the officers testified that he observed defendant, Ferrell, Avery emerging from an apartment building wearing suit, a blue-gray, shoes, hard and carrying gray coat and shopping bag. As the officer approached him, began Ferrell away to walk at an increasingly brisk pace. According to the officer’s testimony, Ferrell dropped the shopping bag and ran behind a building. The officer then observed entering Ferrell a different apartment build- ing and relayed that information to another officer at the scene who arrested Ferrell.1 When ap- Ferrell was prehended, he carrying three-quarter length gray coat which was identified one of the victims looking as like the coat the wore. victims, robber None how- ever, was able to identify Ferrell as the masked robber. The shopping bag was recovered and found to contain the victims, articles stolen from along handgun awith containing five live rounds with one spent cartridge, and a ski mask.

The State’s Attorney filed four criminal informations against Ferrell, relating each to victims, one of the and each charging following offenses:

Count with Robbery deadly a weapon; 1— Attempted Count robbery deadly weapon; with a 2— Count Robbery; 3—

Count rob; 4—Assault to with intent police testimony 1. The concerning officer's the defendant’s move- possession ments shopping bag of the directly was contradicted testimony. the defendant’s Assault; Count 5— $300; than 6—Theft of less

Count of a felony commission handgun Count 7—Use of violence; crime of or handgun. carrying of a 8—Unlawful

Count assault with intent charged Ferrell with A fifth information one the victims. to murder four times in the Circuit since stood trial Ferrell has At the first trial on the above-de- City. for Baltimore guilty of not returned a verdict charges, jury scribed of the other guilty murder and with intent assault 4.2 Ferrell moved for new 2 and except counts charges trial result- granted.3 The second trial, and the motion was At to the charges jury. on submitted hung jury in a all ed charges of only State desired the third of a handgun of a and use commission robbery armed jury. to the submitted or of violence would be crime felony handgun in using a guilty The Ferrell found jury violence, but the or crime felony commission of a Once robbery. as to armed a verdict was unable to reach declared. again a mistrial was time Ferrell trial a fourth bring The State decided to trial, Ferrell moved the fourth for Prior to robbery. armed the grounds robbery counts dismissed to have the armed argued Ferrell double jeopardy. of collateral trial on at the third that, issue before only as robbery the armed counts was handgun counts and both the on the robber, handgun his identity in his issue identity determined charges necessarily relitigating that issue. favor, from precluding thus the State finding that only the motion. While denied judge trial handgun, robbery accused of person one was whether the at the third trial disputed that the issue happened 4. to counts 2 and from the record what It is not clear ground jury’s granted on that the apparently 3. The new trial was were not unanimous. verdicts person, defendant was that the trial judge took the position that the jury’s acquittal on handgun charges could have been on based some other theory than determination that the defendant was not the armed point robber. At one trial judge you stated: “How do they know jurors] [the didn’t gun feel that wasn’t used in the robbery, even there though gun? mean, I I can’t speculate on what the jury determined.” proceeded,

The trial and Ferrell was convicted. He was given year two fifteen sentences on of the two armed counts, robbery to be served concurrently, and ten year two on remaining counts, sentences the two to be served consec- utively to the fifteen year term and consecutively to each other, for a total of thirty-five years imprisonment. appeal

On to the Court of Special Appeals, Ferrell chal- lenged grounds, the convictions on the alia, inter of collat- eral estoppel and judicial misconduct. The of Special Appeals, by court, a divided Ferrell v. affirmed. Md.App. 536 A.2d 99 The intermediate appel- late court held that the jury grounded could have acquit- its tal handgun charges on an issue other than the disputed issue under the armed robbery charges. Unlike court, however, trial which had based its decision on the possibility that the jury’s acquittal on the handgun charges rested theory supported by evidence, the Court of Special Appeals held that the jury at the third trial could have found from the evidence that the defendant was an accomplice in the robbery rather than the actual robber who used the handgun. The Special Court of Appeals also held the conduct of the circuit court did not amount reversible error. granted

We Ferrell’s petition for a writ of certiorari determine whether Special Court of Appeals erred in concluding that did not preclude a retrial on the armed robbery counts and whether the circuit court’s conduct constituted reversible error. Since we shall resolve the collateral estoppel favor, issue in Ferrell’s we shall not reach the second issue.

241 I. the United States the Fifth Amendment

Both no provide common law Maryland Constitution offense. for the same in put twice jeopardy shall be person Maryland Fifth Amendment Moreover, under both of collateral the doctrine law, is it established common prohibition. double jeopardy in the estoppel embodied 1189, L.Ed.2d 436, 25 90 S.Ct. Swenson, 397 U.S. Ashe v. 738, 741-743, 517 State, Md. 307 (1970); v. 469 Robinson 470 396, 401-402, State, 298 Md. (1986); v. 94 Bowling A.2d 329, 449 323, State, 294 Md. (1984); Carbaugh v. A.2d 797 269, 401 A.2d State, Md. (1982); 285 Powers v. 1153 A.2d 288, 937, L.Ed.2d 100 62 denied, 444 U.S. S.Ct. 1031, cert. 398, A.2d 383, 354 State, 277 Md. (1979); v. 197 Cousins 652, L.Ed.2d 1027, 50 denied, 429 97 S.Ct. 825, U.S. cert. 594, 521 C., 591, 308 Md. (1976). In re Neil 631 also See (1987). A.2d 329 charged was the defendant Swenson, supra,

In v. Ashe had who been poker players robbery of one six with the only The contested armed men. three or four robbed was one of the defendant in the case was whether issue found the defen- At the end robbers. later, was the defendant Six weeks guilty. dant for the of one of robbery brought to trial and convicted Court Supreme The States United players. other poker “ is an estoppel’ conviction, stating: ‘Collateral reversed important extremely stands for an phrase, awkward but It means adversary system justice. principle our has once ultimate fact been an issue of simply that when that issue cannot judgment, and final determined valid any future parties the same litigated between again 443, 90 S.Ct. at 397 U.S. lawsuit.” the collateral applied has Supreme subsequent cases. several holding of Ashe v. Swenson 366, 2096, 92 Arkansas, See, 407 U.S. Turner v. e.g., 55, (1972); v. U.S. Washington, Harris 32 L.Ed.2d 798 Florida, (1971); Simpson 183, 30 L.Ed.2d 92 S.Ct. (1971). 1801, See also 29 L.Ed.2d 91 S.Ct. U.S. Powell, United States v. 105 S.Ct. 83 L.Ed.2d

In Powers v. 401 A.2d Md. Court applied principles this its Ashe Swenson and similar to progeny circumstances those the case at bar. Powers, charged the defendant armed victims, robbery of two and the attempted armed robbery victim, a third all the same time place. Unlike the Swenson, facts of all of the charges Ashe v. against Powers single tried at a A acquitted were trial. Powers charges relating to two of the victims but agree could not charge relating on to the third victim. When the State decided to retry Powers on the armed robbery charge victim, relating to third Powers a filed motion dismiss the ground on estoppel. collateral The trial court denied motion, but this Court reversed. in

The Court “that Powers held the doctrine of collateral applies after at a jury, single acquits on one count of a multicount indictment and is to agree unable upon a on verdict a related count of the same indictment fact, involving a common issue of ultimate if which found favor of an would accused establish his innocence on both 285 288, counts.” Md. at 401 A.2d at 1042. We reasoned that, though even under common is Maryland law a mistrial equivalent all, determination, no trial at is not a final issue, State, resolves no Cook Md. A.2d denied, cert. U.S. 99 S.Ct. L.Ed.2d (1978), we could not ignore fact that in the same trial a final determination common issue of ultimate fact had indeed made been on related count and had been decided in the defendant’s favor. The Court stated that primary “the purpose the doctrine of collateral estoppel to protect an accused from being the unfairness of required to relitigate issue which has once been deter mined in his favor verdict acquittal.” Md. 283-284, 401 A.2d

The only disputed issue before the jury Powers was whether Powers had been one its By robbers. not had found that Powers acquittal, verdicts of Therefore, preclud- the State was the robbers. one of been on the count bringing prosecution a second ed from agree. could which in and the Powers There is a difference between and essential separate victims case. Powers involved stant concerning same offenses, the retrial identical ly the ones to whom victim than a different offense but separate The case at bar involves related. acquittals earlier deemed the but separate which are and offenses victims test, and the retrial evidence required under the same than that a different offense same victims but relates to the trial.4 at the earlier subject was the which Nevertheless, applying questions the critical or is the same whether not whether the victim estoppel are are important questions offense is the same. each earlier the defendant was offense for which whether the retried, being he is offense for which acquitted, and the fact, and issue of ultimate whether each involved a common at the defendant’s favor resolved issue was for stated Judge recently earlier trial. As Adkins 742, 517 A.2d at 307 Md. at in Robinson v. makes clear from v. Swenson language “the ... ] [Ashe issue of ulti is ‘an that the critical consideration whether in of a defendant. has determined favor mate fact’ been is not that determination is made ... process by The which See, Arkansas, 407 U.S. supra, critical.” Turner v. e.g., (collateral 367-370, estoppel precluded 92 S.Ct. 2098-2099 defendant, charge at earlier robbery trial on where victim, murdering same and where acquitted had been 653, 291, 297-301, Ferrell, 545 A.2d 656-658 4. See v. 313 Md. State (1988), holding robbery offense of the that armed is a lesser included felony handgun or of violence in the commission of a crime use of a when that robbery. felony of violence was the same armed or crime noteworthy jury third trial had that if the at the defendant’s It is robbery charges, acquitted and had been the defendant of the armed charges charges, handgun would hung handgun a retrial on the on the Wright jeopardy principles. See v. precluded double have been State, A.2d 307 Md. 515 1157 244 same).

issue of fact the ultimate See also Bowling supra, Md. at 470 A.2d at 800-802. Moreover, applying courts where a estoppel jury one acquits on count of a multicount indictment but is on another deadlocked count have made no distinction be tween situations where the two offenses are same those the two are where offenses different. The doctrine is applied If regardless. the court decides that an issue has favor, been determined a defendant’s then collateral estoppel preclude the prosecution relitigating will from issue. See, e.g., Gornto, 1028, United F.2d States (11th Cir.1986); Larkin, United States v. 605 F.2d (5th Cir.1979), 1370-1371 on grounds, other modified (5th Cir.1980), denied, 611 F.2d 585 cert. (1980); 64 L.Ed.2d 793 United v. Mespou States

lede, (2d Cir.1979); 597 F.2d 336-337 United States v. Hans, (S.D.Ohio 1982); 548 F.Supp. United Flowers, (E.D.N.C.1966). States v. F.Supp. previously mentioned, As trial judge, although finding only that the issue at trial in the third this was the case lone used identity handgun, robber an operative who speculated jury’s nevertheless handgun charge could been have based on some theory conjured having up nothing to do with the the armed identity Special robber. Court of Ap- hand, peals, on the other purported find some indication in the that the might record third trial have grounded finding its verdict on a that the defendant was an accomplice opposed being as robbery actual robber. Neither trial court’s nor the of Special Appeals’ position light tenable law and the case record here. Swenson, Supreme Ashe v. Court stated

that the “decisions have made clear that the rule of collat- eral criminal is not to cases with the applied hypertechnical approach and archaic of a 19th century book, but with and pleading realism 397 rationality.” U.S. approach at 1194. requires a court “[T]his taking into prior proceeding, record of a ‘examine the evidence, and other relevant charge, the pleadings, account could have a rational matter, conclude whether and that which issue other than upon an grounded its verdict ” from consideration.’ seeks to foreclose defendant 385, 91 Florida, supra, 403 U.S. at v. Simpson Ibid. indicated that the Court S.Ct. at the “sole following acquittal where a retrial precluded same, [petitioner’s] trials” was issue at each disputed of the armed perpetrator as a petitioner’s identity namely Arkansas, supra, See Turner robbery. record, (Court trial at 2098-2099 reviewed 92 S.Ct. instructions, that issue at the determining

including jury States, v. United same); two trials was Sealfon (1948) (Court 237, 240, 92 L.Ed. 68 S.Ct. U.S. trial, in at first prosecution’s theory reviewed evidence charge precluded on a determining conspiracy offense); Bowling for substantive subsequent prosecution 402-403, 470 A.2d at 800-801. 298 Md. at at a determining whether the State Consequently, relitigate an issue which subsequent attempting trial is trial, at an earlier resolved in the defendant’s favor earlier court look at the record of the realistically must evidence, prosecution’s including pleadings, A issues, instructions. theory, disputed case, not, court should as did the trial court the instant issues at the earlier trial ignore disputed the evidence and might have been speculate jury’s acquittal the evidence having nothing on a to do with theory based to the presented jury. and issues Moreover, reviewing the earlier trial to determine strain to acquittal, for the a court “should not jury’s basis grounds and unrealistic on which up hypertechnical dream have rested.” Unit previous might conceivably verdict Jacobson, 547 F.2d cert. (2d Cir.1976), ed States v. denied, 97 S.Ct. 51 L.Ed.2d U.S. Mespoulede, supra, States v. 597 F.2d at See also United “ about some speculation and artificial ‘[Unrealistic theory upon far-fetched which the might have based its Edwards, verdict of acquittal’ is foreclosed.” State (1984), N.C. S.E.2d quoting United (W.D.Mo.1978). States v. Sousley, F.Supp. record this case is devoid of any indication that the at the third trial could rationally acquit- have based its handgun charges tal on the upon accomplice the theory the suggested by Special Appeals or upon any identity issue other than the of the lone robber. Nowhere in the evidence is there a suggestion of accomplice. Indeed, throughout the State all the trials established that there All only was one robber.5 testimony other evidence put designed the were to the State convince jury that the defendant Ferrell the was man who the robbed handgun four a victims with and fired the the gun one of only posited victims. The theory throughout was that there gun robber, had been one and one and that Ferrell the was fact, robber. the attorney closing State’s said his argument at the fourth trial that there is no dispute as to robbery whether an armed took “The place. dispute ... Avery becomes whether or not this defendant Fer- Vincent rell was the young morning man who on that this wore pulled mask down over his face and wore gray this coat” the rob four victims. The record discloses the during that third trial State the maintained the same case theory as in the only fourth trial. Ferrell’s disagreement with State’s was he theory was not the lone armed robber. complete transcript The record before us does not contain Special Appeals. third trial. Portions ordered were Court of defendant, Since the trial third resulted no verdict adverse to the transcript there was no reason for him to have ordered a under Moreover, Maryland Rule 8-411. until the case reached Court of Special Appeals, undisputed only it was the third trial handgun robbery contested issue under both the armed identity using handgun. counts was sole robber Because matter, dispute there was no in the trial court as to this there little transcript. Despite reason for the defendant to have ordered complete transcript, absence of a the record is us to sufficient for decide this case. hearing on Ferrell’s motion to dismiss

During prior trial, presided fourth the trial also over the judge, who at the third trial as third stated issue follows: it, agree person doing all one is accused of and one “[W]e handgun, the use of a person doing is accused I am Later the says person____” the defendant not that agrees” trial reiterated that that there judge “everybody by person was a crime of violence committed one with a and the issue the that handgun, is whether defendant is disagreed The at no the trial person. prosecution point with concerning court’s statements the case and the issue. Fur- thermore, dismiss, to he pointed Ferrell’s written motion trial, out that each the that there theory State’s was “[a]t involved, defendant, one only was robber the and there was no that a dispute gun by was used that robber.” The State Thus, expressed disagreement no with this. it has been undisputed this case that an armed commit- robbery was ted one man operative handgun. Ferrell’s only defense was that he not was that man.

Ferrell was tied to this crime long because the gray coat he was carrying when he was arrested and testimony that he was seen with the shopping bag containing the goods.6 stolen There positive was never a identification Furthermore, made of the robber the victims. when he was arrested Ferrell was dressed nothing like the robber. The State attempted explain this the discrepancy through of one of testimony chang- the victims saw the who robber ing clothes as he fled the In closing argument, scene. the great State went to to tie lengths all of this circumstantial evidence to Ferrell in an attempt persuade that Ferrell indeed the was man who terrorized the four victims gun. with a Finally, given was never an accom- mentioned, trial, previously arresting 6. As at the fourth one of the drop shopping bag officers testified that he saw Ferrell at the examination, apartment building. corner of an It came out on cross however, that at the third trial this same witness testified that he did actually dropping bag. see the plice instruction at or either third trial the fourth trial.7 argument, accepted State’s by the Appeals, Special acquittal that on the handgun charges on might reasonably have been based a jury finding that accomplice, Ferrell was an instead the person wielding handgun, totally contrary to record in this case. Arkansas, See supra, Turner 407 U.S. at S.Ct. at 2098-2099 (applying reject ing, upon instructions, based and jury review record argument acquittal State’s on murder at first charge might trial be based on theory petitioner accom plice of murderer might and thus subsequently prose victim). robbery cuted for same disputed The sole issue at third and the issue submitted to the jury, was whether the defendant person Ferrell was the one in robbing involved the four victims with a handgun. Un der principles set forth Swenson, supra, Ashe v. v. State, Powers handgun charge resolved this issue identity Ferrell’s favor and precluded the relitigating State from the issue.

II. Alternatively, argues the State that we should overrule v. Powers State. The State contends that Powers was decided and that wrongly estoppel collateral should not prevent a retrial on a count of an indictment the jury where had unable agree, acquitted been to but where jury had on another count of having the indictment a common issue which, of ultimate if favor, fact found in the defendant’s would establish his innocence on of both the counts. case,

In present Powers, and in similar cases elsewhere, arising arguments various have been made against application of estoppel collateral under circum- like stances those in this case. great cases, The majority however, rejected have these arguments. During pre-trial

7. Ferrell’s motion to dismiss at the trial fourth judge charged trial discussed how she at the third trial. No accomplice charge. instruction was included in that against made that have been principal arguments The situation involved estoppel this have applying ordi- rule that inconsistent verdicts upon reliance Md. See, State, e.g., v. Wright are tolerated. narily 46,Md. 576, (1986); State, v. 552, 515 A.2d 1157 Shell State, 300 (1986); v. Md. 53-55, 512 A.2d 358 Mack (1984); State, Md. 593-595, 479 A.2d Ford This (1975), cases there reviewed. 337 A.2d 81 and for reasons. misplaced reliance is two First, Powers, out in there pointed this Court as no on one count inconsistency no between (285 Md. there stated another count. verdict 1040): 401 A.2d at at view, can be no in a inconsistency jury’s

“In our there on one and is findings of count acquits fact when having a agree on another count common issue unable fact, if in favor of an accused of ultimate which found Mary- counts. establish his innocence on both would land, no trial at Cook v. equivalent a mistrial is all. It is 281 Md. 381 A.2d question final no fact. not a determination and decides in a Accordingly, agree, failure to which results jury’s mistrial, facts, cannot does not establish and thus any its inconsistent those establish facts established Smith, 887 A.2d acquittal. United States verdicts ^[499] at 503-04 ^[1975] (Kern, J., concurring). to be requires “Ashe the doctrine of collateral an issue of fact has once been whenever ultimate applied judgment acquittal. determined a valid final Here, only valid jury’s us judgments final before are verdicts do question There is no those verdicts acquittal. issues of fact. constitute valid determination of ultimate any failure did not decide jury’s agree Because facts, it did make the of that determination validity es- Accordingly, the doctrine questionable. applies.” toppel

250

Second, if agree failure to on one count is jury’s even acquittal as inconsistent with an on another count of viewed a multicount indictment where the issue under disputed same, counts was the rule that inconsistent jury both application are allowed has no to the situation in verdicts present concerning case. The rule incon Powers verdicts means “that on one simply sistent a conviction may [despite] count ... stand ... an inconsistent State, 552, count.” on another Ford v. 274 Md. at supra, 85, 285, 293, quoting 337 A.2d at Leet v. 203 Md. 100 A.2d It relates to inconsistency 789 at the same trial, application and has no to successive trials.8 See 64, 68, 105 Powell, v. 469 at United States U.S. S.Ct. 476, (inconsistent 478 rule “to applies verdict verdicts rendered by single jury”; applies where “the same results”). reached The rule inconsistent does not authorize trial on against a second an issue which has been resolved prosecution. Referring language Dunn v. United States, 390, 393, 189, 190, 284 U.S. 52 S.Ct. 76 L.Ed. 356 (1932), suggested may which there inconsistent be trials, verdicts at where the first successive verdict was case, in the 469 acquittal, Supreme Court Powell U.S. at 64, 476, 105 S.Ct. stated: if ],

“The ... statement Dunn not incorrect at the [from time, 85, 87, see v. 242 U.S. Oppenheimer, United States (1916), L.Ed. longer 37 S.Ct. 61 161 can no of cases such accepted light v. United as Sealfon States, (1948), U.S. S.Ct. L.Ed. 180 Swenson, Ashe 25 L.Ed.2d (1970), which hold that the doctrine of collateral estoppel would under those circumstances.” apply Powell, As the further Supreme pointed out inconsistent verdicts in the context of a single jury trial are present 8. Some of the decisions relied on the State in the case simply single involve the inconsistent verdict rule in the of a context See, attempted reprosecution. e.g., and do not involve an State Dominique, (Mo.App.1981). S.W.2d they repre- even policy though for certain reasons tolerated “principles of collateral irrationality,” whereas “jury sent assumption jury on that the ... are the estoppel predicated reaching found facts in its certain rationally acted ...,” at at 478. When verdict relitigation the at a sec- prosecution’s attempted to comes an trial, by in the defendant’s of an issue resolved favor ond and the at earlier estoppel applicable. of is assumption rationality jury single in a The difference inconsistent verdicts between in the in the case was discussed present trial and situation Flowers, F.Supp. detail United States instant opinions upon of the relied the State by one 21). Flowers, first (State’s brief, at the p. jury case an indict- the defendant on several counts of acquitted trial counts, and agree other ment and was unable on several on defendant prosecution attempted reprosecute The jury agree. counts was unable to those where the reprosecution held barred court that collateral fact issue of ultimate having on those counts same Addressing by acquittals. the earlier which was resolved jury on reliance the rule inconsistent prosecution’s Flowers, tolerated, F.Supp. are the court verdicts that, to the initially regard permissibility with observed reprosecution, of the of aware jury must be assumed

“[i]t [earlier] properly the facts in that it logically all evidence and its ver- reaching the instructions the court applied acquitted that the acquittal. possibility jury dict of reason or frustration charity, compromise simple from the flowing from hours tedious debate barred court’s consideration.” 487-488): then

The court stated {id. in the case convicted the defen- “Had instant jury they one counts on failed to reach a on which dant verdict, subject to attack on conviction would of the other counts ground inconsistency any However, the upon acquitted. which the defendant was did not any convict Flowers of the 26 counts indictment; a conviction on one of the 13 remaining counts would be rendered point different at a Dunn, later in time. As in any inconsistency would be between different counts of the same but, indictment as Sealfon, a conviction would come at a date later than the acquittal on the other counts and from a jury.” new

# $ $ # $ $ “In the context of a situation here, such as that presented i.e., acquittal a verdict of on some coupled counts with the jury’s to reach inability counts, a verdict on other application of the requires rationale the Court to Sealfon assume that the jurors logical have been in reaching their counts, decision on the acquitted yet the ultimate result will often a conclusion the jurors, or some of them, illogical were and inconsistent in failing acquit on remaining counts.”

Turning to the cases relied on by prosecution, (id. Flowers court explained 489): at “The government relies upon language in United Petti, States (2d Cir.1948), 168 F.2d to the effect that the judicata doctrine of res no application has to different counts the same indictment or to consol- idated indictments. Similar wording has been used in a cases____ number of These state- [citations omitted]. ments, however, have uttered uniformly against been factual background of allegedly inconsistent jury verdicts rendered at by the same time the same jury and must be against construed background. contrast, the is- sue to be determined here is whether a verdict of guilty upon a retrial a new jury would incon- necessarily be sistent the finding of not on guilty any of the 13 counts of the disposed indictment of at the first trial.

“My conclusion that the principle [is] is applicable in the instant setting____” (id. 488) The court also out pointed that the authorities “uniformly support application of the collateral estop- pel principle where, here, to the situation as the jurors unable to on some counts and have been acquitted

have Kenny, United States v. reach a verdict others. See denied, cert. 894, 77 (3d Cir.), 236 F.2d 128 to (1956) indictments tried (separate 1 L.Ed.2d 87 States, supra v. United gether); Cosgrove F.2d 146 [224 indictment); United (9th 1955)], (multiple count Cir. Perrone, (multi (S.D.N.Y.1958) States v. F.Supp. indictment).” count ple rule, under of the inconsistent verdict

The applicability case, also present those in the circumstances like of Appeals States Court discussed in detail United v. Mespoulede, United States Circuit for the Second bar, Mespou- in the 597 F.2d at 336-337. As case lede involved count of an indictment and on one count, counts involved hung on a second where both government reprosecuted issue of fact. The a common holding princi- defendant on the second count. to the second estoppel applicable of collateral were ples (597 stated F.2d at Appeals the United States Court of 336): collateral principles it is

“Finally, argued charges con- inapplicable are to the retrial estoppel in tained a multi-count indictment.... blush, first it seem odd that such a broad rule may

“At us, litigat- is since the burden of pressed upon especially issue that the defendant had been laid to ing thought all in the trial. And lighter rest for time is no than first indeed, applied the cases have unanimity, with virtual relitigat- to from bar the Government in defendant’s ing question of fact that was determined States, Green v. United See verdict. partial favor curiam); (per (1970) 138 426 F.2d 661 U.S.App.D.C. States, Travers v. United 276, 281, U.S.App.D.C. 118 335 States, 224 Cosgrove United (1964); F.2d 703 F.2d Flowers, 255 F.Supp. United States v. (9th Cir.1955); Pappas, United States v. (E.D.N.C.1966); 445 F.2d denied, 1194,1199 (3d Cir.) (dictum), 984, 92 cert. 404 U.S. (1971); S.Ct. L.Ed.2d United States Per- rone, (S.D.N.Y.1958) (dictum).” 161 F.Supp. 258-59 to Turning government’s reliance upon inconsistent rule, 336-337): verdict the court said {id. it hardly

“But follows from fact that a in single jury one trial is allowed render inconsistent verdicts that a jury second should permitted rely second trial rejected on the evidence the first.

“We tolerate inconsistencies jury unified verdicts cases, criminal of any singular because virtue we to inconsistency, attribute rather but out deference to the nature of and the role it in our plays jurisprudence.”

And later the 337): court continued {id.

“Internal inconsistency itself, ... not an end it would be irrational to expand gratuitously the judicial tolerance of inconsistent to permit ju- verdicts different ries in successive trials to reach contradictory results. Allowing a second to reconsider very upon issue which the defendant prevailed has serves no valuable To function. contrary, implicates concerns about injustice of exposing repeated a defendant to risks conduct, conviction for the same and to the ordeal of multiple trials, that lie at heart of the double jeopardy See, States, clause. Green e.g., v. United (1957).” L.Ed.2d 199 Another argument made against applying collateral es- toppel in the bar, circumstances of the case at is that the jury, earlier it hung because was on certain counts involv- ing fact, the common issue ultimate did not that resolve issue in the words, defendant’s In other favor. by focusing exclusively on the count or counts where the was jury to agree, unable there some may be force the contention that the did not jury decide the critical issue the defen- Nevertheless, dant’s favor. as discussed the court Flowers, 487-488, United States v. 255 supra, F.Supp. at principles estoppel require that the focus be upon the earlier jury’s acquittal, with acquittal being that

255 the facts. underlying resolution of as a rational viewed Moreover, to counts where logical upon it is focus upon representing counts verdicts rather than jury reached State, v. establishing nothing. See Powers no decision 285, Md. 401 A.2d at 1040. 285 supra, the settled rule in the case also invokes present State not prohibition ordinarily does jeopardy the double following of a mistrial a retrial the declaration preclude See, agree. Richard- jury e.g., because the was unable to 317, 3081, States, 468 U.S. S.Ct. son v. United 497, (1984); 434 U.S. Washington, L.Ed.2d 242 Arizona v. 824, (1978); Perez, v. 54 L.Ed.2d 717 United States 98 S.Ct. State, v. Wooten-Bey (1824); 579, 6 L.Ed. Wheat. denied, 1090, cert. 534, 542-543, 520 A.2d 308 Md. 2199, (1987); 95 L.Ed.2d 853 In re 481 U.S. (1982), R., 244, 250-251, 449 A.2d 393 Mark 294 Md. them, cases, and others like did cases there cited. Those of an not bar because involve collateral having a at the earlier on a count common issue trial hung ultimate fact with the count on which the prosecution. and which is the of the second subject case, if acquitted instant had not the defendant handgun or if not handgun charges, charges had as disputed robbery involved the same issue the armed charges, applicable the above-cited cases be fully would charges on the armed robbery pre- retrial would principles. cluded double See jeopardy Wooten-Bey 1094-1095, 308 Md. at 520 A.2d at for a very Nothing discussion of this distinction. in the cases, however, that the supports above-cited view State against issues resolved relitigate entitled facts or Instead, aby previous acquittal. as the Court has Supreme stated, policy prohibition “pro- of the double jeopardy attempts relitigate tects the from the facts accused Ohio, underlying prior acquittal,” Brown 97 S.Ct. L.Ed.2d indicated, As previously overwhelming majority position cases of collateral principles take 256 applicable are to the in Powers presented situation State,

v. supra, 269, 285 1031, Md. 401 A.2d the case See, e.g., Gornto, United States v. bar. supra, 792 F.2d Bowman, 1028; United States v. 12, (D.C.Cir. 609 F.2d 17 Larkin, United States 1979); supra, v. 1360; 605 F.2d v. Mespoulede, United States supra, 597 F.2d 329; Green States, v. United 138 184, U.S.App.D.C. (1970); 426 F.2d 661 United v. Kenny, States 128, F.2d (3d Cir.), 236 130 cert. denied, 894, 133, 352 U.S. 77 1 (1956); S.Ct. L.Ed.2d 87 Cosgrove States, 224 v. United (9th F.2d 146 Cir.1954); Hans, United v. supra, States 548 1124-1126; F.Supp. at Mulherin, United States v. F.Supp. 916, (S.D.Ga. 529 933 1981), aff'd, 731, (11th 710 F.2d Cir.1983), 740-743 cert. denied, 964, 1034, 464 465 402, 1305, U.S. U.S. 104 S.Ct. 78 343, L.Ed.2d (1983, 1984); 79 L.Ed.2d 703 United States v. Flowers, 485; supra, v. Superior 255 Oliver F.Supp. Court, 94, Todd, v. Cal.App. (1928); 92 267 P. Com. 764 348 453, Jones, Pa.Super. (1985); 502 Com. v. A.2d 631 274 Pa.Super. 162, 346, 418 denied, cert. A.2d 449 U.S. 876, 221, 101 (1980).9 66 S.Ct. L.Ed.2d 98 In light of this authority, and reasons underlying in Powers holding State, v. supra, we adhere to that holding. “ The State in this case more had than full ‘one and fair ” 10

opportunity to convict’ the defendant Ferrell of robbery with a handgun. trials, After three a jury acquitted Ferrell of committing robbery handgun. with a Consequently, State should permitted not have been this issue relitigate at a fourth trial. minority position,

9. represented There is mostly by cases in New 102, Jersey. 1273, Esposito, N.J.Super. See State 148 371 A.2d certif. 260, denied, Triano, (1977); 74 N.J. 377 A.2d 669 State v. 147 N.J.Su- per. (1974); McGowan, 371 A.2d 734 F.Supp. United States v. 385 (D.N.J.1974). 956 But Superior see United States ex rel. Triano v. N.J., (D.N.J.), F.Supp. (3d 393 1061 F.2d aff'd denied, 1975), Cir. cert. 423 U.S. L.Ed.2d 645 (1976). Wright at 577 Md. n. 515 A.2d 1170 n. Johnson, 493, 502, quoting Ohio v. 104 S.Ct. L.Ed.2d 425 APPEALS OF OF THE COURT SPECIAL JUDGMENT THAT REMANDED TO COURT REVERSED, AND CASE THE OF JUDGMENT DIRECTIONS TO REVERSE WITH CITY AND TO BALTIMORE THE COURT FOR CIRCUIT THE COURT FOR THE CASE TO CIRCUIT REMAND TO DIRECTIONS DISMISS CITY BALTIMORE WITH IN COURT AND THIS THE COSTS INFORMATIONS. BE PAID BY APPEALS TO THE OF SPECIAL IN COURT OF BALTIMORE. AND COUNCIL THE MAYOR CITY McAULIFFE, Judge, dissenting. the disagree opinion,

I Part I of the Court’s with with prohibits the estoppel doctrine result. The of finally decided relitigating from a fact that has been State the previous proceeding the between against State agrees, this says, majority Ferrell and the parties. the in the third trial decided that record shows four person Ferrell the these victims. was not who robbed I cannot agree. presents

In the that Ferrell for this place, first record much any- to show of Court’s consideration is insufficient of at the trial. the face thing about what occurred third Swenson, Court in Ashe v. clear language by Supreme 1194, 444, 1189, (1970), 436, 397 U.S. 25 L.Ed.2d 469 State, 278, 269, Md. Powers repeated by this Court denied, cert. 401 A.2d 100 S.Ct. (1979), claim collat- deciding L.Ed.2d that a court of prior of a proceed- eral must “examine record evidence, ing, pleadings, charge, into taking account matter,” a transcript did provide other relevant Ferrell not majority of third trial. The refers proceedings in fact transcript,” of a when we complete “absence of no At the direction the Court virtually transcript. have a few of Special Appeals, pages of the State furnished understanding transcript grounds to assist that court the trial judge. for dismissal of certain other counts that, for Judge pointed from as Wilner out the Court Apart Special Appeals, transcript provided: no part proceedings the third save the [N]o transcript few pages dealing disposition Counts response furnished State to our order, know, been included in the has record. We don’t in general other than what way, presented evidence was to that third nor do we jury; know what instructions given argument were or what was made to the jury. Md.App. Ferrell v. 536 A.2d 99 however, More important, is this point —whatever decided, might in the third trial have jurors we can be sure they did not decide that Ferrell was Had robber. they that, they decided would have found Ferrell not guilty of the It robbery illogical as well. is absolutely conclude jurors that same who unanimously that Ferrell foun4 not the man these a handgun was who robbed victims with be to reach a robbery would verdict on the count. unable The holds majority apparently that because the State is unable to demonstrate exactly why jury reached the did, it That, conclusion prevail. defendant must I suggest, is not a proper application principles estoppel.

The Supreme has Court said that the relevant inquiry “whether a jury grounded rational could have its verdict an issue other upon than that which the defendant seeks to Swenson, foreclose from consideration.” Ashe v. 397 U.S. at 1194. The Court cautioned that must inquiry approached “with realism and rationali- and “must ty,” practical be set frame and viewed with eye proceedings.” all circumstances of the only practical and rational conclusion that I can reach upon consideration all the known circumstances of third trial is that the could jury not have concluded that which argues Ferrell it must have concluded.

I cannot why be certain as jury found it did on the charge of of handgun use in the commission of a or felony a crime of violence. It have may erroneously concluded that the defendant did not “use” the handgun because no had not the State felt that have may shot. It one was mean- “handgun” within involved was gun proven speculating, say, cannot without statute.1 One of our ing can say, did. One reached the verdict why not reach confidence, did however, not involved. found the defendant they verdict because the conviction. I affirm would

567 A.2d 949 DEVELOPER, INC., et al. ARNOLD COLLINS, et ux. Maurice E. Term, 80, Sept. 1989.

No. Maryland. Appeals

Jan. (1957, Repl.Vol.) by Maryland “handgun” Code is defined 1. A guns or include all hand-held definition does not Art. 36F. The § 389, 395-96, A.2d 797 278 Md. pistols. See Howell v.

Case Details

Case Name: Ferrell v. State

Court Name: Court of Appeals of Maryland

Date Published: Jan 9, 1990

Citation: 567 A.2d 937

Docket Number: 13, September Term, 1988

Court Abbreviation: Md.