*1 AND THE IN OPINION OPINION STATED THIS SONS AND 2002; IN IN APRIL COSTS THIS COURT FILED BE PAID BY PUBLIC SERVICE COURT TO CIRCUIT COMMISSION; MANDATE TO FORTHWITH. ISSUE
STATE 120, Sept. Term, No. 2001. Appeals Maryland.
Court
Oct.
382 DC, Olesen, Washington, .appellant.
Anne K. for (J. Bair, Curran, Jr., Atty. Atty. Gary Joseph E. Asst. Gen. brief), Baltimore, Maryland, appellee. Gen. BELL, C.J., ELDRIDGE, RAKER, Argued before BATTAGLIA, WILNER, CATHELL, HARRELL JJ. CATHELL, Judge. Anthony Galloway (“appellant”) June
On indictment, charged by single relating in a to the the State Knox, shooting nonfatal of Robert with nine counts of criminal conduct, murder, assault, including attempted reckless endan- felony in the commission of a germent, handgun use of (counts 7) violence, carrying handgun through 1 crime of possession having previously firearm after been convicted (counts 9).1 8 and March in a pretrial of a crime On (1) following charges: Appellant was indicted the State on the (1957, attempted degree, Repl.Vol.), murder in first Md.Code 411A(b); (2) attempted degree, § Article murder in the second (1957, 411A(a); (3) degree Repl.Vol.), § Art. Md.Code first assault, 12A-1; (1957, Repl.Vol., Supp.), § Md.Code Art. assault, (4) (1957, degree Repl.Vol., Supp.), second Md.Code 12A; (5) (1957, endangerment, Repl. § Art. Vol., reckless Md.Code *4 27, 12A-2; (6) Supp.), handgun § 2001 Art. use of a in the violence, (1957, felony of a or crime of Md.Code 1996 commission 27, 36B(d); (7) wearing, carrying, Repl.Vol., Supp.), § Art. or 2001 (1957, transporting handgun, Repl.Vol., Supp.), a Md.Code 1996 2001 27, (8) 36B(b); possession regulated § Art. of a firearm after a convic any tion of violation classified as a common law offense where the person imprisonment years, received a term of more than two of (1957, 445(d)(l)(iv); Repl.Vol., Supp.), § 2001 Art. Md.Code (9) possession regulated any and of a firearm after a conviction of statutory penalty violation classified as a misdemeanor that carries a of (1957, years, Repl.Vol., Supp.), more than two Md.Code Art. 27, 445(d)(1)(iii). provided, statutory § all references Unless otherwise hearing in for City, appellant’s the Circuit Court Baltimore expressed prejudicial impact ap- counsel concern over the of record, pellant’s prior criminal an element of counts 8 and remaining charges. result, on the As objec- seven without parties, tion from special proce- the the trial court created 2 where, dure jury the same criminal trial a would deter- guilt appellant in respect mine counts thru judge the trial guilt would determine appellant respect to counts 8 and 9. Trial proceedings began later that day. During two-day same and the through heard evidence on counts 1 simultaneously, appellant’s prior evidence of relating convictions to counts 8 only by judge.3 and 9 heard request At the of appellant, objection over the the court deferred its verdict on counts 8 and 9 until after returned its respective charges provided against
to the appel- the indictment designated lant are as above. Appellant charges moved for pretrial severance of in his motions 2. pursuant Maryland trials, seeking Rules 4-252 separate two through one for collectively counts 1 and another for counts 8 collectively. and 9 (concerning See Md. Rule 4-252 motions in the court); 4-253(c) (providing circuit Md. Rule appears it “[i]f counts, any party prejudiced joinder will be charging for trial of documents, defendants, may, or the court on its own initiative or on counts, any party, separate motion of ments, charging order trials of docu- defendants, grant any or justice requires”). other relief as court, fully granting The trial instead the motion to sever and scheduling separate approved trial of counts 8 and of the unusual procedure. trial, During hearing jury, but out of the the State appellant’s prior introduced to the court evidence of convictions. The predicate underlying (possession regulated conviction count 8 of a any firearm after a conviction of violation is classified as a common law person offense where the imprisonment received a term of of more than years) two appellant's prior stemmed from September conviction on 1993 in the County Circuit Court for battery. Anne Arundel for predicate underlying (possession regulated conviction count 9 of a any firearm after a conviction of violation classified as a misdemeanor statutory penalty that carries a years) of more than two stemmed from appellant's prior conviction on March 1992 in the District Court of Maryland, sitting City possession in Baltimore of a controlled dangerous substance. *5 21, 2001, March the through counts 1 7.4 On
verdict on through on counts one seven. appellant guilty” “not found “guilty” its verdict of following day, the court returned 8 and 9. to counts merged count 9 into count sentencing,
At the court incarceration, years of which appellant to five and sentenced years and were converted suspended two year one trial, filed a motion new probation. Appellant supervised dated trial court in a memorandum by the which was denied appeal a notice of to the Appellant then filed July 2001. a writ of certio This Court issued Special Appeals. Court Special Appeals, to answer the rari, the Court of bypassing following questions: Jeopardy Clause under both the Double
“1. Whether law, Maryland common Fifth Amendment contrary trial court’s acquittal barred the jury’s possession.[5] on issue of verdict trial, during appellant the course of the separate 4. occasions On two delivering 8 and 9 until defer its verdict counts asked the court to though objected 7. The State jury returned its verdict on counts 1 occasions, arguing on the two that the court's deliberation on both “nothing jury’s deliberation” on it had to do with the counts before through each trier of fact should announce its and that counts reached, and not in accordance with the verdict is verdict at the time ultimately acquiesced to sequence. The court predetermined some sequence in were returned appellant's request. The which verdicts bearing has little on our decision. the United States Constitu [to the Fifth Amendment "[U]nder both law, that the doctrine of Maryland common it is established tion] jeopardy prohibition.” estoppel in the double is embodied collateral 235, 241, (1990) (alterations State, 318 Md. 567 A.2d Ferrell v. 1189, 1195, Swenson, added). 397 U.S. 90 S.Ct. See Ashe v. (1970) (holding estoppel that collateral L.Ed.2d "embod guarantee against jeopardy”). double ied in the Fifth Amendment estoppel jeopardy and collateral are the doctrines of double While related, hand, one analytical each is distinct. On the focus of precludes re-prosecution jeopardy same of double doctrine of hand, estoppel prohibits collateral On the other the doctrine of fense. Apostoledesv. re-litigation 456, 463-64, issue. See of the same factual (1991). an inconsis- rendering court erred 2. Whether shifting the burden improperly verdict tent *6 proof.” court, i.e., the circuit by the utilized procedure
The jury and a making function between of the decision bifurcation in indictment single of a counts respect to different a Maryland, expressly authorized is not single a In our has revealed. far as our research anywhere else as accepted previously the briefly examine we will discussion cases. separate into of indictments severing counts for method the cases where that in criminal ultimately hold shall We identical, guilty alleged are and fact issues circumstances court, with that is inconsistent verdict, by the equivalent, or its is, impermissible. generally, acquittal, of verdict uncontroverted, parties the case are facts of this The presented of facts on the statement having agreed proceed 8-501(g).6 The Maryland Rule appellant’s pursuant brief brief are: presented appellant’s facts as 1, 1997, nine- morning September hours of early “In the foot. He in the Knox was shot teen-year-old Robert an sitting steps on of abandoned was the claimed that he when neighborhood, friends from the with five or six house mother’s out of his [appellant] old came thirty-five year trial, down, At Mr. and shot him. house, doors several may agree parties on a 8-501(g) provides that Maryland "[t]he Rule extract may in a record undisputed facts that be included of statement or, facts in the agree, part the statement of parties as all or if the mean, however, reviewing that a appellant's This does not brief.” examining record for relevant from the appellate court is foreclosed agreed facts. by parties in statement of the evidence not mentioned 1 A.2d 283 n. Md. 703 n. See Anderson (1978) “supported "agreed of facts” was (noting statement that (1977) Kidd, record”); A.2d State v. extract”); CES and record (reviewing "agreed statement of facts Doub, Md.App. n. Servs. v. Card Establishment 332, (1995) ("Pursuant 8-501(g), parties have to Md. Rule 334 n. 1 purpose of the rule is to avoid agreed upon facts. The a statement of Nothing in the expense producing a record extract. the cost and rule, however, considering facts in the record prevents us from facts.”). agreed statement of mentioned in the were not only Knox was the [appellant] witness who identified as the prosecution shooter. The [appellant] theorized shot Mr. Knox retaliation for an incident several hours earlier in which Mr. Knox [appellant’s] bicycle ‘borrowed’ without asking. challenged Knox, The defense credibility of Mr. who had theft, a criminal record for drug distribution and and emphasized investigate the State’s failure to any or call present Mr. Knox’s friends who during bicycle were shooting. incident argued defense that Mr. The. Knox, angry [appellant] who was calling police for him, testify falsely. motivated to jury acquitted [appellant] it, of all seven counts including charge before carrying handgun. day, The next trial court [the judge] [appellant] guilty found possession the two firearm counts before her.
“Officer Aaron Robinson testified that around midnight incident, day down, [appellant] flagged him reporting that someone had bicycle borrowed his and not caught up returned it. The two with Mr. Knox and several of his friends. Officer Robinson demanded Mr. Knox return to [appellant], the bike and up threatened to lock Mr. Knox for theft. When Mr. Knox bicycle, returned Officer Robinson considered the incident resolved with ‘simple intervention’ and left the scene. Knox, however,
“Mr. ‘pretty who was mad’ [appellant] for calling police, [appellant] confronted declaring: ‘That’s up you messed police [appel- called the on me.’ As biking started back lant] towards his mother’s house at 1010 Street, North Carrie Mr. Knox and his friends walked According Knox, friends, same direction. to Mr. one of his ‘Monk,’ something [appellant]. said to Mr. Knox [ap- and words,’ pellant] then had ‘little and exchanged ‘profanity toward each other.’ later,
“An hour friends, or two Mr. Knox and his who had all drinking brandy, been ‘E&J’ sat front of an abandoned Street, home at 1000 North Carrie a few houses down from [appellant’s mother’s] house. Mr. Knox acknowledged that he lived several blocks away, and ‘just happened claimed he Knox, According to Mr. he park’ spot. to himself at twenty [appellant] had for about minutes when been there friends, out of his mother’s One of Mr. Knox’s came house. ‘Tay,’ speak [appellant]. [appellant] went over to After inside, ‘Tay’ went back returned to where Mr. Knox was right.’ him all sitting ‘everything going and told to be later, [appellant] Mr. Knox claimed that about a minute handgun, out of with a at him. came the house shouted away, [appellant] shooting. As to run Mr. he tried started ‘they Knox that his saw testified friends were there time, At that none of his everything.’ the same he claimed they ‘had gun [their] friends saw who fired the because [they] rang heard the shots off and backs turned when did not know his ‘everybody ran.’ He also insisted he ‘Monk.’ except ‘Tay’ friends’ the nicknames of names foot, blocks being “After shot Mr. Knox ran seven girlfriend’s police to his When the ambulance and house. came, they Mr. Knox back to North took Carrie Street taking hospital, pointed him to the and Mr. Knox to before Street, indicating the house at 1010 North Carrie where the to a May responded shots were fired. Detective Brenda call about an four over from North Carrie incident blocks However, got when location of the Street. she incident, reported dispatcher report instructed her May 1010 North Carrie Street instead. Detective investi- gated casing the area and found a 0.25 caliber in front of 1014 North about a Carrie Street the middle the street *8 foot from the curb. She ascertained name as a [appellant’s] possible suspect, photograph, arranged obtained his a photo array. hospital, then went to the Mr. She where pointed Knox [appellant’s] photograph and identified [appellant] person as the who shot him. May, police
“Detective who had a been officer nine- force, years years teen task with seven on the violent crimes investigate any did not possible suspects, other witnesses or although Mr. Knox told her he was with some friends May acknowledged time of the incident. Detective she did ask Mr. Knox for even the names his friends because give up people a lot of are reluctant experience ‘from her they don’t people that are with them because names of the to their harassing bothering going or or police want the investigators per- There was no evidence houses.’ it had any casing on to determine when tests formed street, no gun it had on the long fired or how been been May [appel- a warrant for was found. Detective obtained arrest, was [appellant] did not it because but serve lant’s] arrived. police when the not at 1010 North Carrie Street through on counts one jury acquitted [appellant] “The day, the following on March 2001. The Court seven to counts 8 and 9.” guilty [Some verdict as returned added.] alterations appeal presented that the issues
Appellant contends
procedural
appellant
in which
“unique
arose from the
context”
tried,
proceeding
of a “unified
with a
which consisted
decision,
jury
part
Relying
trial and
court trial.”7
hybrid
part
Fifth and Four-
principles
jeopardy
of double
under the
of the
States Constitution
teenth Amendments
United
law,
finality of
appellant asserts that the
Maryland common
carrying
handgun
acquittal by
charge
his
on the
(count 7)
precluded any
by
consideration
the trial
(counts
9).
8 and
In
possessing
“same offense” of
firearm
Swenson,
alternative,
appellant, relying on Ashe v.
(1970),
argues
contends inconsis- prohibition against common law Maryland’s violated verdicts, his court and that the trial court violated federal tent rights improperly it shifted process and state due when provide him to an proof appellant by requiring burden of to crime. theory alternative appellant is “not to raise
The asserts entitled State it was jeopardy estoppel or collateral bar” when “he double requested jury who simultaneous court and trial and he delay jury to its until had who asked the court verdict Moreover, rendered the State asserts that double [its].”9 Initially, appellant made a normal motion to sever the counts for separate objected, asserting potential preju- trial. The that the State by way objected, dice could be addressed of instruction. After the State following occurred: willing "[Appellant's Galloway ... Mr. Counsel] advises he’d be to right jury waive his to a trial on counts 8 and 9.” point doing appellant’s At this there is no indication that counsel is anything agreeing jury rights other than to waive his trial in a subse- quent point trial on the severed counts. At that the State asked permission appellant’s the trial court to counsel. confer with the Alter that conference State addressed the court: willing ... if counsel defendant are "[The State] and the to waive jury proceed their on the to a trial last two counts and before those, object severing the Court on the State will not to those two counts from the indictment”. is, least, point At this it at the unclear that there is to be a simulta- single agreeing neous trial. The State is to sever the counts "from severed, they actually they longer indictment”. If were would no be in case, normally separate but would constitute a criminal case. Appellant’s proceeds jury inquiry counsel then with a trial waiver of his client, concluding: "[Appellant's going jury Counsel] We are to have a trial with 9, however, respect through my to Counts 1 7. Counts 8 and it’s understanding you’re willing give up your right to a trial Judge your guilt you and let Allison decide or innocence. ... Are willing give your right up to a trial as to these last two counts?” granted While the docket reflect that entries the trial court the motion sever, issue, transcript only reflecting is silent on that that the accepted rights trial court a waiver of 8 and 9. counts parties proceeded than on with what occurred below. Had severed, properly separate counts 8 and 9 been and been the focus of a trial, same, very litany may bench or a similar well have been alone, employed. litany entirely From the it is not clear what was *10 jeopardy prohibitions, including estoppel the collateral version was a jeopardy, apply proceeding of double do not because the trial, authority quote our case of single proffering as from (2001), Farrell v. A.2d a criminal jeopardy prohibition protects “The double defen- prosecution.” argues from The State then in dant successive by in that “He was not retried [appellant] its brief this case Rather, or a at a successive trial. he was either by judge counts in the merely guilty found on two different clear, therefore, original). in It (Emphasis same trial.” is trial, single argues, considered this to be a that the State reason, jeopardy principles that do not specific for that double apply the first instance. error, of trial court regard appellant’s
With to claims additionally disputes applicability gov- of the rules State case, erning present inconsistent verdicts further erroneously burden of denies that the trial court shifted the proof.
General Discussion Double jeopardy above, it that position As indicated is the State’s double estoppel jeopardy applicable and collateral issues are not case, happened single because what occurred here the same (however principles jeopardy and that the of double manifest- ed) apply only relating subsequent litigation. to matters necessarily agree jeopardy do not viola- While we double only subsequent litigation, can facts of tions occur under the directly rely jeopardy princi- we shall not on double case on common law ples Maryland principles. but We note support that at first glance appear there are federal cases respect jeopardy. In Ashe v. position the State’s double Swenson, 436, 442-46, U.S. S.Ct. going certainly appellant requested and it clear it who is not' that was event, decision, any given a simultaneous and bench trial. In our clarity litany question party of the and the of which initiated a procedure consideration of this have little relevance. (1970), 475-77
L.Ed.2d Supreme United States Court stated: question longer
“The no whether collateral estoppel is a requirement process, due but part whether it is Fifth guarantee Amendment’s against jeopardy.... double “ estoppel’ ‘Collateral phrase, is an awkward but it stands for an extremely important principle in our adversary sys- justice. tem It simply means that when an issue of ultimate fact has once been determined a valid and final judgment, that issue cannot again litigated between the in any parties same lawsuit. Although first devel- future oped litigation, in civil estoppel collateral has been an estab- lished rule of federal criminal law.... As a rule of federal *11 law, therefore, ‘it is much suggest too late to principle fully is not applicable to a judgment in a former case, criminal either because of lack of “mutuality” or judgment may because the only reflect a belief that Government had not higher met the proof burden of exacted ’ in such cases.... question determined,
“The ultimate then, to be light Benton v. Maryland, supra, is whether this established rule of federal law is embodied Fifth guaran- Amendment against tee double jeopardy. do not We hesitate hold that it is. For whatever else that guarantee constitutional may embrace, it surely protects a man who has been acquitted from having to ‘run gantlet’ a second time. question
“The is not whether validly Missouri could charge petitioner separate with six offenses for the robbery of the six poker players. It is not whether he could have received a total of punishments six if he had been single convicted in a trial of robbing the six victims. It is whether, simply after a determined its verdict that petitioner robbers, was not one of the State could constitutionally hale him before a to litigate that new again.” issue [Citations omitted.] [Footnote omitted.] [Emphasis added.] Ashe, in Butler v. State opined consistent
This Court (1994), that: 238, 253, 643 A.2d Md. (‘Collateral of the Fifth Amendment’s estoppel part is “.... is also estoppel guarantee...’). Collateral jeopardy double common law. See Maryland’s component an established Ford
(1993)....
“ ‘[Wjhen fact has once been of ultimate issue a[n] that issue cannot judgment, final by a valid and determined any parties same again litigated be between future ” [Emphasis added.]10 omitted.] citations [Some lawsuit.’ Butler, 643 A.2d at Md. at went on to state We 396, that: upon a usually is invoked estoppel collateral
“Although an issue is whether critical consideration acquittal, the prior in favor of previously has determined ultimate fact been State, collateral in Ford v. As we stated the defendant. did find or the fact finder ‘analysis focuses what estoppel (‘Collateral ... not is concerned found.’ estoppel must have only but with the judgment of a legal consequences with the discovered, that can fact, ultimate they when findings of (‘Collateral estoppel judgment.’) necessarily lay behind that fact-bound’).” omitted.] stubbornly [Citations ... Ford, supra,: stated We recognizes the collateral law also
“Maryland common *12 law collat- jeopardy. This common of double estoppel form However, recog- Special Appeals have the Court of this Court and circumstances, that, apply estoppel can in a collateral some nized under 984, 682, 719, State, A.2d Md. 625 proceeding. Ford v. 330 single See 1157, State, (1993); A.2d 1169 Wright 307 Md. 515 v. 1002 155, 981, 146, (1984) State, (1986); 986 299 Md. Brooks v. against (“Another prohibition here the common law trial was barred State.”); Curtis Williams recognized in this jeopardy double Ford, 473, 55, 69-71, (1997). State, Md.App. A.2d 480-81 699 117 acquittals granting of motions for Wright involved the and Brooks subsequent actions in the merit creating inconsistencies appellate action Williams involved phases same cases. Curtis of the In each stage, created inconsistencies. subsequent the merits jeopardy questions. raised double the inconsistencies case
393 a second litigating from ‘prevents the State estoppel eral already has been there fact where of ultimate time an issue favor.’ accused’s issue of that final determination 834, 398, 825, cert. 383, A.2d State, 354 277 Md. Cousins (1976) 50 L.Ed.2d denied, S.Ct. U.S. subsequent trials Ashe). both to may apply ... It (citing Md. Brooks v. trial. within the same Ford, (1984)....” A.2d A.2d at 1002. fully infra, discuss more
Ford, which we Wright, estoppel, that collateral Brooks, proposition stand But, case. circumstances, in the same apply can under certain circumstances, i.e. of limited sets cases involved counts based on some judgments acquittal of granting judges evidence, yet subsequently insufficiency particular upon an they depended also jury where go to the letting other counts being sufficient. evidence particular same upon that Ford, Brooks and Curtis Wright, circumstances procedural circumstances Williams, than the significantly different were case. present of the double sense, concept of traditional
At least precludes jeopardy double it be actual jeopardy, whether in collat of issues as re-litigation or offenses re-prosecution subsequent, or at least contemplates a usually estoppel, eral or material are rendered different, in which verdicts case necessary to in this case be It will not issues determined. applications single case expanding the limited consider cir particular recognized estoppel principles collateral Brooks, Ford, and Curtis Williams. Wright, cumstances type here is some argued that what occurred may it be While jury was excused in that the subsequent prosecution of mutant thus, rendered, and, court was of the the verdict before preclusion issue violated the of the trial court guilty verdict case, subsequent it was a estoppel because of collateral effect therefore, should be reversed and, court’s verdict necessary in this case grounds, it will jeopardy double procedure utilized approve disapprove to either it further. shall, necessary, discuss below, although where we *13 reasons, We shall reverse for other that we shall hereafter so, doing discuss. In directly we will not reach the constitu- tional jeopardy issue double or constitutional collateral estoppel.
First we discuss the expressly provided method Maryland respect Rules prejudicial multiple effect of counts.
Severance prejudice Potential is a fundamental concern under lying a joint court’s consideration of or separate trials for a charged multiple defendant criminal offenses. See State Kramer, 576, 583, (1990) v. 318 Md. 569 A.2d 677-78 (“Potential prejudice overbearing is the concern the law of respect question joint State with to the separate or trials of a charged offenses.”); defendant with criminal Frazi State, (1990). er 318 Md. 569 A.2d Maryland Rules are not silent on joinder the matter of same, severance of counts in the or in different cases. Md. 4-253(c) 11,” Rule “Prejudicial joinder addresses specifical ly states: separate
“Rule 4-253. Joint or trials. “(b) Joint of offenses. If a defendant has been charged in documents, two or more charging party either may joint move for a trial of charges....
“(c) Prejudicial joinder. appears If it any party will prejudiced by joinder counts, for trial of charging documents, defendants, or may, the court on its own initia- any tive or on motion of party, separate order trials of counts, documents, defendants, charging or grant any justice other requires.” [Emphasis relief added.] " art,’ 'Prejudice' meaning within the of Rule 4-253 is a 'term of only prejudice resulting refers reception the defendant from the against evidence that would have been inadmissible that defendant had State, 173, 186-87, joinder.” Ogonowski there been no Md.App. (1991) 250, 254-55, (citing 589 A.2d Osbum v. (1984)). *14 by “separate rule does not further define what is meant specifically permit prohibit trials.” The rule does not or single bifurcation of a trial. that, separate
It is clear
at
trials of
least where
considered,
separate
being
counts
join
are
the decision to
ordinarily
charges
sever
lies within the sound
of
discretion
Frazier,
607,
689;
trial court. See
Ultimately, a trial judge duty has a ensure guard defendant receives a fair trial against injustice. Md. at McKnight, See 375 A.2d at (discussing common law prejudicial joinder that, test for explaining “the courts guard against injustice will and abuse whenever (internal omitted) (citation apparent”) quotations omitted); State, accord Wanzer v. 202 Md. 97 A.2d (1953) (discussing the courts’ discretion in matters joinder, rule, and noting rigid is no only “[t]here and the limitation is that will guard against injustice”). courts Evi- its inherently prejudicial is because crimes
dence of other predisposed to contin- that the defendant tendency to show inad- generally would behavior. Such evidence ue criminal relevance, than special other circumstances of missible unless See, crime, present. commit are propensity to a mere proving (1976) Ross v. e.g., [Sjtate criminal acts (“The evidence of other may present ‘substantially relevant the evidence is accused unless com- that he probability than to show purpose other some criminal is a man of on trial because he the crime mitted ” omitted)). case, (citation present In the evidence character.’ *15 felon, relevant although especially was a appellant that 9, undoubtably would have counts 8 and admissible as to remaining counts of the respect to the prejudicial been indictment. a curative effect of recognized has this Court
While simi- under circumstances cautioning jury instruction properly recognized and has that judice,12 sub lar to the case circumstances, improper avoid can, appropriate courts under trial, have subsequent for á we by severing counts prejudice type proceeding of utilized presented with the never been trial in this case. the merits hybrid an of a present case is instance that
We note
we
appropriate
merits.
In an
case13
trial on the
jury/bench
of whether
question
with an initial
necessarily be faced
might
single trial
grant
discretion to
a trial
has the
shall not resolve
instant case. We
procedure used
case,
fully
on other
as the case can be
resolved
issue in this
specific bifur-
declining to address this
issues. Our
important
issue,
any approval
or
construed
cation
should
be
Frazier,
(finding limiting jury
A.2d at 691
There are of respect courts. In to the exercise processes in the criminal have, generally, disapproved hybrid right to counsel we State, 260, 263, 523 In Parren v. representation. (1987), noted, context, A.2d we a Sixth Amendment right self-representation independent “[t]he rights mutually exclu- right to assistance of counsel. The ‘are ” simultaneously.’ cannot assert both sive and the defendant (citations omitted). say: on to We went effectively right is no in a defendant who has
“There
vested
responsibilities
his
waived the assistance
counsel
have
attorney.... As
conduct of the trial shared
an
we
noted,
pro
right
have
to counsel and the
defend
simultaneously.
rights
cannot
two
are
se
be asserted
disjunctive.
captain
ship,
can
but
and it
There
one
responsibility
passage,
is he
who must assume
for its
alone
safely
whether it
reaches the destination charted
found-
Parren,
ers on a reef.”
(1985) (“the simultaneously”). cannot assert both defendant issues, respect rights
In
of counsel
federal courts
constitutionality
hybrid
spoken
representat
have also
to the
They
ion.15
have held that
criminal defendant does not
*16
right
self-representation
have an
to both
and the
absolute
Halbert,
assistance of counsel. United States v.
640 F.2d
(9th
1000,
Cir.1981);
Klee,
394,
1009
v.
494 F.2d
United States
(9th
835,
62,
Cir.),
denied,
396-97
cert.
419 U.S.
95 S.Ct.
42
By copy
opinion
Standing
of this
to the
Committee on Rules of
Committee”),
(the
notify
“Rules
we shall
it of
Practice and Procedure
it,
may study
this issue in order
that
the Rules Committee
and if it
appropriate, make
to the Court.
In that
deems
recommendations
process
adequate opportunity
there will be
for concerned
entities
study process.
participate
and make their views known in the
"hybrid representation”
15. The
describes
the situation where a
term
Parren,
participate
as his own "co-counsel.”
309
defendant
seeks to
State,
264,
(citing
Md.App.
Callahan v.
30
Md. at
L.Ed.2d 61
255 F.2d
725-
denied,
(9th Cir.),
920,
1361,
cert.
26
357
78
2
U.S.
S.Ct.
Daniels,
(1958);
535,
United States v.
L.Ed.2d 1365
F.2d
572
Sacco,
(5th Cir.1978);
v.
791,
United States
540
571
F.2d
793
denied,
(4th Cir.),
cert.
999,
1656,
435 U.S.
98
56 L.Ed.2d
S.Ct.
(1978);
(2d
v.
630,
Cyphers,
United States
90
556 F.2d
634
denied,
972,
cert.
Cir.),
2937,
431
97 S.Ct.
Other state have Bloom, v. People See tionality hybrid representation. 48 1194, 1218-19, 669, 698, Cal.Rptr. Cal.3d 774 P.2d 712 Doane, (1989); 852, 863, People Cal.App.3d 246 Cal. Gamble v. 366, (1988); 777, Rptr. 371-72 235 Ga.App. 69,74-75 (1998); People Dennany, 445 Mich. S.E.2d Small, State v. (1994); 519 N.W.2d (1999); Hegge, Wash.App. State v. 673-74 S.W.2d (1989). 766 P.2d disapproved
Another situation where we have (waiver hybridization procedures of trial trial rights) is questioned procedure closer to the at bar. In the case respect right by Maryland jury, the waiver to trial contemplates by jury, Rule 4-246 the entire trial be provides: the court. 4-246 Rule “Rule 4-246. Waiver of trial —Circuit court. “(a) Generally. In having the circuit court a defendant right by jury by jury right to trial shall be tried unless the (b) pursuant is waived to section of this Rule....
“(b) acceptance Procedure for of waiver. A defendant may by jury anytime waive the to trial before may accept commencement of trial. The court waiver until it ... determines the waiver is made knowingly voluntarily.” clear, readily prescribes
As is 4-246 process Rule “trial;” waiving jury expressly permit it does not a defendant *17 pick to a proceeding respect particu- choose mode to parts single merits, lar in a trial on the with both jury a and a court as fact-finders as to different counts of the same indict- ment. generally
We have right considered the waiver to be by a jury tried to in respect be waiver to the entire merits trial, portions the trial. We noted Martinez v. 124, 131, 309 Md. (1987), “A may defendant right waive his jury to a trial and elect instead be tried (citations omitted). the court.” We there it an addressed as selection. In having the one case similarity some either/or case, the unusual situation of present we that it held was a selection of Marsh, one or the In other. State v. (1995),
“Under this intricate
when Marsh waived his
to a jury trial
to guilt
innocence,
he was
precluded thereby from seeking a jury determination as to
criminal responsibility----
Rule,[16]
Thus under this
election of a bench trial on the
inevitably
merits
encompass
es a waiver of
rights as to criminal responsibility.
“In this respect,
question
of criminal responsibility is
every
like
other issue to be decided in the cases. See
Berutko,
People v.
Cal.2d
453 P.2d
(1969)
Cal.Rptr.
(jury
goes
waiver
to all of the
case).”
Marsh,
issues
be decided in the
Consistency of bar, dispute is no that both the In the ease at there judge appellant having decisions as to jury and the based their it, having on the same identical evidence. handgun, not the present was upon both fact-finders relied The evidence which Likewise, there no single evidentiary proceeding. is ed in a They to verdicts inconsistent. dispute as whether the were time, given At a in the clearly point jury are inconsistent. handgun. The trial appellant possess did not the held that time, that, necessarily given point at the court held same felon, possession handgun. a of the same appellant, right object to to argues appellant that waived his The State verdicts, regardless of inconsistency appropri of the that, particular hold in the procedure. of the We ateness case, of the court circumstances of this the inconsistent verdict was, thus, additionally jury’s inappro nullified verdict Maryland principles. law priate under common said, precedent have have found no direct As we we criminal law of this inconsistent verdicts permitting (or courts), any where a verdict of state or the federal State a jury is with the in the judge a trial inconsistent verdict present in the procedure While utilized at trial same case. different, occasions, on at two significantly least case was Williams, infra, discussed Ma- supra and Curtis Wright disapproved have inconsistent ver- ryland’s appellate courts inconsistency involved in criminal where the court dicts cases Additionally, addressed appellate our courts have such action. relating a court in civil context jury and the a issues between why consistency requirements. We no reason to see in criminal should be consistency requirements cases less in civil applied than the we cases. stringent standards have precedents. first our civil We shall discuss reading they civil indicates that prior A those cases verdict, upon a court proposition based a support facts, should not judge’s interpretation different same interpretation nullify jury’s a of those facts and be allowed because, verdict, resulting jury the nullification its common constitutional person’s of a is the denial verdict Moreover, peers. or her by jury of his to be tried right law separate situation, and a render where in that other, reasoning with each that are inconsistent verdicts jury verdicts inconsistent acceptance of supports the applicable. is not the present case in the being nullified The verdict verdict, respect verdict, especially jury’s it is the judge’s his count, did not waive appellant As to that count 7. counts 8 trial on appellant waived trial. Whether *19 verdict) in a (the judge which the rendered upon counts
and 9 issue, simply not relevant consistency is context the and its the facts jury’s interpretation a issue of whether or overturned in criminal case can be a guilty verdict of the same facts interpretation different by judge’s a nullified case to both triers only single in a presented once that were jury why inconsistent the reasons important, fact. More judge is apply when a simply do not tolerated verdicts are inconsistent verdicts. rendering in one of the involved what the in criminal cases no difference It makes mingling of court in the is that results procedure facts, are not on identical verdicts; based inconsistent verdicts jury inconsisten inconsistency solely permitted unless nullify jury’s of a court Additionally, when the verdicts cy. has by jury, been verdict, right to be tried a defendant’s At no time affected, nullified. or even improperly to a give up his appellant waive case did present 7. through counts 1 jury’s verdict on Corporation, Gramling Engineering In Edwards (1991), of a civil case in the context A.2d we stated: equity,17 of law and questions mixed with that assists us guidance supplied courts have “Federal First, courts have federal instant case. our review of the by resolved that, are to be equitable claims held where jury, by resolved legal claims are court were not inconsistent. In Edwards we held that the verdicts ‘ power” is “without reach conclusion inconsistent Fenik, with that of jury.’ Gutzwiller v. 860 F.2d (6th Cir.1988). Second, Supreme as the has Court recognized,
‘Where there is a view of jury’s the case makes a consistent, to special interrogatories they answers must way. be resolved that For a possible search for one view of the case which will jury’s finding make the inconsistent results collision with the Seventh Amendment.’ Atlan- Stevedores, Lines, tic & Inc. v. Ellerman 369 U.S. Gulf 780, 786, (1962).” 82 S.Ct. 7 L.Ed.2d citations [Some omitted.] point
We went on Edwards to
out
jury’s
that the
verdict
could have been based on different factual circumstances than
the court’s verdict.
possible
“There are at least two
scenarios
under which a
could find there was no conversion.... Un-
scenario,
der
jury’s
the second
on
verdict
Edwards
conversion is consistent with
Corporation
the verdict for the
fiduciary duty.”
breach of
Id. at
In
present
only
the
there is
one
one “scenario.”
Appellant,
issue,
at
in
point
the
time at
carrying
was either
weapon
the
or he was not.
jury
found that he was not
it;
carrying
subsequently, based on the identical evidence
presented only
trial,
that,
in
once
the same
the
found
at
time,
point
Edwards,
the identical
in
he was.
in
Unlike
judge’s
in
judice effectively
verdict
the case sub
nullifies the
jury’s
is,
verdict.
It
question,
without
inconsistent.18
occurred,
In
properly
may
cases where severance
possible
has
it
be
subsequent
might,
that a
glance, appear
court verdict
at first
to be
inconsistent, when,
fact,
presented
it is because the court was
with a
facts, i.e.,
significantly different
relying
set
if the
that a
facts
court is
during
subsequent separate
on
properly
trial of
severed
are
counts
sufficiently
presented
jury
jury
different than the facts
prior
to the
in the
example might
trial. An
accosting
be where a felon is accused of
Barnes,
(1987),
Md.
“We hold that a legal presented by on his right to a trial issues that is raised simply counterclaim because counterclaim constitutionally required to equitable an action. areWe jury in actions at ‘inviolably preserve’ right by of trial law, legal equitable and so both issues are ‘where case, “only imperative in a under most presented single legal ... can to a trial of issues circumstances ’ through prior equitable claims.” be lost determination Wood, 472-73, Queen at 82 S.Ct. at Dairy supra, U.S. Theatres, at (quoting supra, Beacon 359 U.S. 957).” S.Ct. Thus, Higgins,
Id. at
Once the determined in and carrying handgun point the at the relevant time charge, him of that the trial court should have guilty found 9, which, circumstances here dismissed counts 8 and under the appellant guilty, in to find present, required, also order exactly of the same firearms at appellant possession was same time. additionally by a supported view is consideration
Our
“[W]e (1986), felony ‘commission of crime of violence is an 36B(d) ingredient § of handgun essential the It is offense. Thus, ... an element of crime.’ guilty [of] the ‘verdicts not of of guilty handgun the crime violence and of use of a in the contrary commission of such a crime ... would Therefore, must, law....’ ‘a trial court a criminal case if accused, requested by jury the instruct a that an accused guilty cannot be found of a handgun use the commis- sion of a crime of ... if guilty violence found not of a crime Nevertheless, of violence.... by jury inconsistent verdicts ’ normally ‘are tolerated.... This is so because of the ‘unique jury, role of the no impact [and has] whatsoever upon explicated by the substantive law the Court.’...
“It follows from our decisions that given the instructions jury law, the were full accord with but that jury the the ignore was free to them.
“... What both prosecutor and the overlooked was guilty the effect of not viability verdicts on the the trial. jury polled
“When the on guilty the verdicts on the first charges, poll three and the disclosed that unanimous, verdicts were the verdicts final. were The verdicts legally proper.... were The verdicts stood com- plete without handgun a verdict on the charge. guilt The stage of point. was over at that jury The had no perform. further function to It power had exhausted its and authority and could not upon be called to exercise short, additional In duties the case. the case was no longer province within jury.” [Citations omitted.] in original.] [Alterations [Footnote omitted.] bar, In the case at transcript contained in the extract indicates jury that March rendered its ver- guilty counts, dicts of not on all of the including the not guilty verdict as to count was then immediately conclusion “Harken to by the clerk who stated
polled ” it.... The clerk has recorded the verdict as the Court jury’s all of verdicts. until he had “harkened” continued all its point, At this verdicts was then excused. final and were consistent. were reconvened, day, when the court It was not until the next its verdicts on counts 8 and Under that it rendered jury could not have holding Hoffert, even the Court’s *23 it was excused. inconsistent verdicts after rendered those 8 and 9 in case at bar on counts The trial court’s verdicts jury’s verdicts on the other clearly inconsistent with the are counts. verdicts, jury which accepting for inconsistent
The rationale
“[Ijnconsis-
well,
as
Hoffert,
noted in
and other cases
we
mistake,
lenity,
compromise
or a
may
product
of
tencies
that continual correction of such
unanimity,
to reach
jury
historic role of the
as the
matters would undermine the
not,
cannot, logically
questions put
to it” does
arbiter
Hoffert, 319 Md.
384-
apply
present
in the
circumstance.
State,
85,
Md.
(quoting
at 540
Shell v.
572 A.2d
(1986)).
know,
no other
As far as we
there is
A.2d
in criminal cases.
tolerating
inconsistent verdicts
rationale
would
the histor-
approve
happened
To
what
below
undermine
to it. As
questions put
arbiter of
ic role of the
deprive
it
important,
present
in the
case would serve
verdict,
jury’s
especially as to count
defendant
retroactively deprive
of his
to a
would
the defendant
by nullifying
jury’s
guilty.
verdicts of not
Shell,
52-58,
at 361-64
in
“The State cases, (1975), that an support A.2d 81 and other the view handgun in a trial of may nonjury be convicted accused 27, 36B(d), Art. if finds that § offense under even felony not commit the or crime of vio- the defendant did disagree. lence. We
“The defendant
Ford
tried
jury....
before a
If the
jury determines that the accused did not commit
felony
or
guilty
crime
violence but is
of use of a
handgun
commission of such felony
violence,
crime
has
obviously rendered inconsistent verdicts. The Ford opinion,
recognizing
while
inconsistent,
the verdicts
upheld
were
the conviction
of many
because
cases
this Court which
‘repudiated
had
the assertion that jury verdicts must be
(Ford,
consistent----’
supra,
“Later,
in Mack
‘Thus, this Court established ... [in Ford ] that order to convict an accused of of handgun use in the commis- sion of a crime of it violence is necessary that the trier beyond fact find a reasonable doubt that the accused committed crime of essence, violence. In this Court recognized that when an accused is charged in a multi- count indictment with the commission of a crime of vio- lence and use of a handgun the commission of such a *24 crime, a guilty verdict of of the crime of violence is a prerequisite to a verdict of guilty of use of a handgun in the commission of such a crime. Ford,
‘Additionally, in pointed Court out that if an accused is guilty found of both the crime of violence and use of a handgun in the crime, commission of such a the verdicts are consistent and they If, can both stand. however, there is a verdict of not guilty of the crime of violence and a verdict of guilty of use of a handgun in the crime, commission of such a the verdicts are inconsistent.’ “In light of principles, these the Court Mack took the position that ‘verdicts guilty not [of] of the crime of violence guilty of use of a handgun in the commission of such a crime ... law,’ would be contrary 595, id. at 479 A.2d 1344. Consequently, we held that ‘a trial court in a criminal must, if requested by accused, case the jury instruct a an accused cannot be found guilty of handgun use of a in the 27, ... Art.
commission of a crime of violence under
36B(d)
guilty
§
if found not
of a crime
violence
defined
441(e).’
587,
§
...
Id. at
A.2d 1344.
Art.
The
that the
to set
inconsis-
pointed out
refusal
aside the
Court
unique
jury
‘premised upon
in Ford was
the
tent
verdicts
impact
upon
had no
whatsoever
jury,
role of
[and]
594-595,
at
explicated by
law
the Court.’
Id.
substantive
A.2d
“Thus,
jury
based on
verdicts are
convictions
inconsistent
jury
role of
singular
tolerated because of
incon-
justice system....
general
criminal
is that
view
mistake,
product
lenity,
or a
may
sistencies
correc-
compromise
unanimity,
to reach
continual
tion of such matters would undermine
historic role of
put
jury
questions
as the arbiter
it. United States
Powell,
476-478,
63-68,
105 S.Ct.
469 U.S.
(1984)
(refusing
using
L.Ed.2d 461
to vacate conviction
crimes, of
telephone
drug
to facilitate
which defendant
Johnson,
State,
Ford,
acquitted by jury);
supra;
Etc. v.
(1965).
541-545,
Md.
“The rule in the Johnson and in a inconsistent verdicts distinguishes which between adopted nonjury trial, has been such verdicts in a trial and See, Diagnos v. jurisdictions. e.g., in U.S. Duz-Mor other (9th Cir.1981); Inc., tic 650 F.2d Laboratory, (D.C. States, 366, 368 United Haynesworth 1984); 409 Mich. 295 N.W.2d People v. Vaughn, Williams, (1980); 297 N.W.2d People Mich.App. (1980). “Moreover, opinion in in Mack v. light of our recent appellate inconsistency supra, height it would be the depart Maybury us from of Johnson and principles will nonjury trials and hold verdicts inconsistent present generally permitted and will be sustained trial utterly require It would no sense to case. make to instruct the ‘that an cannot be found accused of a crime of guilty handgun of use of a the commission violence,’Mack, guilty ... if found of a crime violence not A.2d but hold that the permitted ignore this judge himself is rule. only at bar not in which is an
“The case one there inconsistency disappears upon apparent which substance situation explanation. review of the trial court’s Unlike Johnson, findings the trial court’s in this case are light ... In challenged guilty with the verdict. consistent Mack, opinions, Ford and Johnson the defendant Shell’s *26 410 36B(d) §
conviction of
handgun
offense must be re-
[Citation
versed.”
omitted.]
[Footnotes omitted.]
leading
Shell is the
Maryland,
criminal case in
and has
leading
country,
become one
cases in
in respect
consistent and inconsistent verdicts. We have cited its hold-
ings
State,
on those
issues
our cases of
Wright
307 Md.
552, 576,
(1986)
1157,
Anderson,
515 A.2d
1169
and State v.
17, 29,
1227,
(1990) (“It is,
however,
575 A.2d
1233.
State,
settled
as a nonconstitutional common law princi-
ple, that
guilty
inconsistent verdicts of
guilty, by
and not
trial,
trial
nonjury
at a
are not ordinarily permitted.”).
576,
1169,
In Wright,
“The judgments a criminal bench trial constitute inconsistent ... reversible error. See Shell Michigan rejected judg- courts inconsistent
“The
have
*27
Williams,
criminal
trial.
v.
People
ments from a
bench
See
(1980)....
465,
463,
Mich.App.
99
“The rationale for verdicts inconsistent simply not to a trial applicable bench under these circum- duty .... A trial court is apply stances bound the law a nonarbitrary or [non-]capricious manner. A rule which permit would judgments upon which cannot be defended law, logical respect basis would not for enhance courts, or process. appellate For an to uphold court a judgment, illogical arbitrary, such which on its face is or likely respect would undermine for the courts.” [Alteration added.] 68-70,
Id. at
“The issue of guarantee____ tional previously not addressed the issue
“Although we have verdicts, have commented we inconsistent bench Wolfe, Va.App. two In ... on at least occasions. issue in our nothing n. that n. at 319 we noted S.E.2d ren- to address inconsistent verdicts was ‘intended opinion Citing criminal trial.’ single a trial in a dered principles our belief ‘the we indicated Shell More applicable to such cases. [not] are [in stated Wolfe] Commonwealth, Va.App. recently, in Elmore (1996), assumed without 589 n. we n. 470 S.E.2d in a trial are ‘that inconsistent verdicts bench deciding cited the deci- Virginia.’ again We grounds reversal representative as highest court in Shell Maryland’s sion of that ‘the consider- jurisdictions of other of the decisions jury verdicts do may justify inconsistent ations in a bench trial.’ apply expressly adopt, applicable elemental
‘We now
*28
verdicts,
rationale
in
trial
the basic
inconsistency
bench
court in
cita-
by Maryland’s highest
[Some
Shell.”
applied
omitted.]
tions omitted.]
[Footnote
position adopting
its
Virginia
Appeals
Court of
reaffirmed
The
holding in its later case of Cleveland
Common
our Shell
(2002).
wealth, Va.App.
We said upon also the rule Special “The Court of relied Appeals by our law’ consistency verdict is ‘not mandated agreeing ground and furnishes no reversal. While acquittal on Wright’s argument judgment that the felony underlying attempted robbery and the conviction of inconsistent,’ Special Appeals murder the Court of ‘were that ‘it is The short answer to the responded immaterial.’ Special Appeals’ Court of is that we are not reliance Rather, dealing by jury. action case with inconsistent court, inconsistency granting part judgment acquittal underlying a motion for as to the felony theory to felony submitting jury. but murder tolerated, by jury normally While inconsistent verdicts are ordinarily permit- are not inconsistent verdicts the court Maryland as a common law. ted matter *29 “Moreover, that, recognize general principle, as a we nonjury inconsistent verdicts on different counts at a constitution, precluded by are not the federal at least when alone, sentencing judge, may required a to determine the existence prior respect by jury. criminal conduct in to a conviction rendered a supported by ‘is and is guilty verdict sufficient evidence Notwithstanding ordinary of a fair trial.’ product rule, constitutional federal inconsistent verdict we doubt murder, felony acquittal that a conviction for an after underlying felony ground proof was the State’s insufficient, judge expressly and after the trial stated that require ‘there is not' sufficient evidence to the Defendants to put respect underlying felony, on a defense the’ squared jeopardy could be with federal double or due process principles.... conclude, therefore, that both
“We under the Double and, Fifth Jeopardy independent- Clause Amendment ly, Maryland jeopardy principles, common law under double Wright’s felony conviction for the defendant murder must addition, using be reversed. In his conviction for a because handgun felony in the commission of a crime violence murder, premised upon having felony his committed ” that conviction must also be omit- [Citations reversed.... ted.] [Footnote omitted.]
Wright, supra, prior judge causing involved action of a in inconsistent verdicts a trial. The unusual Court of Williams, Special Appeals’ case of Curtis supra, involved subsequent by Special Appeals actions the Court of inconsistency of an respect resulted the creation prior jury verdict. Williams,
In Curtis
Special Appeals
the Court of
reconsid-
prior opinion
it had
argued
ered
filed. Williams
that the
vacating
prior opinion,
court’s
of one count
its
had resulted
in his
inconsistency
inconsistent verdicts
case and that the
actions,
jury’s
was not the result of a
but one created
Special Appeals.
appellant
respect
Court of
The
to the
using
reconsideration stated:
his conviction for
“[T]hat
handgun
felony
in the commission of a
must be vacated
felony
conviction
underlying
because his
for the
was vacated.”
Williams,
Curtis
Md.App.
“Had
jury
acquitted
the case at bar
appellant of the
underlying felony
offense,
but convicted him of
handgun
its verdicts
We, however,
would have been inconsistent.
required
would have been
to affirm
handgun
convic-
....
important
tion
It
note
Ford involved
verdicts. There are later cases in which courts have held
types
that other
of inconsistent
impermissible.
verdicts are
“In
Garland v.
Md.App.
‘It follows that with the reversal of the conviction for the underlying felony, the conviction for handgun violation, predicated it, of necessity upon must also be reversed.’
Id. at
After a discussion of this Court’s Shell holding, the Court of Special Appeals ultimately held Curtis Williams:
“As law, we view this area of the inconsistent verdicts from juries are tolerated unique because of the juries role of judicial in our system. verdicts, however, Inconsistent are not generally in non-jury tolerated context.
“The trial below in jury resulted verdicts were completely consistent. With our action in the case sub judice, vacating we, the underlying felony, jury, have created inconsistency. present, With no aura any inconsistency is no reason for us tolerate
there also Accordingly, appellant’s we shall vacate con- verdicts. ” charge.... handgun viction on the 70-71, 699 at 481. Id. at A.2d *31 Williams, jury’s verdicts in the instant case
As in Curtis Galloway of all jury acquitted consistent. counts were The only subsequently, it. It after the was to was presented two in excused, guilty court found him counts when trial case, in that the verdicts the case became inconsis- the same therefore, by inconsistency, the trial tent. The created significantly is not of those situations where court. This one thus, by trial court and evidence is considered different inconsistency explained, general might and the rule can be upon apply. depended In case both verdicts identical evidentiary Accordingly, as to the issue. evidence material improper court inconsistent verdicts and its the trial created to 9 shall be verdicts as counts 8 and reversed.
Conclusion jury’s verdict trial court should have honored the The receiving Upon jury’s verdicts. not rendered inconsistent verdicts, counts 8 judge the trial should have dismissed and 9. Maryland Rights, 21 of the Declaration of relevant
Article explicitly provides: part, everyman hath a prosecutions,
“That all criminal impartial speedy by jury, ... to a trial an without whose ought guilty.” not to found unanimous consent he be jury’s role it on a judge’s impacts In a criminal case a normally determining is to interpretation the facts limited as to a support jury’s the facts conclusions convic- whether as, bar, tion, not, at what in occurred in the case essence jury’s facts to an support acquit- conclusion as whether approve If this Court inconsistent verdicts tal. were authorizing practice by judge, the trial it would be rendered of convic- permit judgement that would to achieve a the State finding jury’s acquittal. tion that overrides a to create here would accept what occurred Moreover in civil than harsher, in criminal cases different, standards to the protection unwilling to afford less are cases. We liberty, or defendant, very whose rights of a criminal where, stake, litigant, civil life, than to a his or her is even at stake. money that is it is generally, BALTI- FOR COURT THE CIRCUIT OF JUDGMENT BY THE REVERSED; BE PAID COSTS TO CITY MORE BALTIMORE. OF AND COUNCIL CITY MAYOR WILNER, Judge. Concurring opinion holding correct judgment. Court I concur case, returned that, in this once on the record impermissi- it was on Counts guilty of not verdicts and 9. guilty on Counts appellant to find for the ble (1) of a joinder only suggest separately I write (CIP) charge with other possession of a firearm criminal *32 element, possession of a include, as an charges preju- undue prospect of either necessarily raises the weapon, verdicts, regardless or of inconsistent to the defendant dice (2) although and joinder, used to deal with the procedure verdicts, except inconsistent against law rule the common time, suffices to jury at the same by the same when rendered case, applicable, Also approach. it is not the best resolve com- and, me, estoppel preferable, to is collateral —both prohibition into the incorporation and its mon law doctrine against jeopardy. double count common to include a CIP becoming increasingly
It is contains, with another joined or is to be in an indictment that proof of the charges requiring containing, other indictment presents and that weapon, of a possession defendant’s defense, especially prosecution for both and the dilemma 445(d) 27, § makes Maryland statute. Article under the CIP years mandatory of five subject to a sentence felony, it a for a suspension parole, to or subject not imprisonment, person if the regulated firearm possession to person be violence, or a (1) felony, a crime of convicted of a has been (2) carrying sentence, year misdemeanor more than a two is a drunkard, fugitive justice, from a habitual or a habitual user (3) substance, dangerous a controlled suffering is from a mental history disorder either has a of violence or has been confined for days more than 30 consecutive in a mental institution, (4) currently subject is parte to a non-e* civil order, (5) protection was, or is less than 30 past, adjudicated delinquent juvenile as a for committing felony, violence, crime or misdemeanor carrying a of more sentence years. than two
Ordinarily, various those elements of the law relating CIP record, to the criminal or juvenile defendant’s mental health status, addiction to alcohol or dangerous controlled sub- stances, history or of violence would not be admissible with offense, and, respect any except other in the rare circum- stance, likely the defense would most not want that kind of presented evidence to the it considering while other hand, offenses. the other does want to have try the case prove twice—once to the defendant committed embodying the current offense possession of a weapon again prove that element of the CIP offense. If convicts on the other offenses embodying posses- firearm, sion of a only additional evidence needed to establish the count previous CIP is the defendant’s record or If, case, status. isas most often the relying the State is on a conviction, previous juvenile adjudication, existing pro- civil order, tection in the absence of dispute some real about the matter, that fact may ordinarily supplied by stipula- either tion or certified documents. If relying the State is on the defendant’s mental health status or addiction to alcohol or *33 drugs, especially violence, coupled history when with a of major and, issue could well a become one because of its potential clear for prejudice, require undue almost some separation. form of
Several approaches different have been tried order to problem. resolve the The one least favorable to the defendant is to jury have the of charges together, consider all -the including charge, the CIP which would either allow evidence of unsavory presented, record or status to the defendant’s or, limiting respect with a instruction with to that evidence as case, stipulation is often the as to the status defendant’s course, with a That of coupled limiting approach, instruction. here, presented not does raise the issue because inconsistent by jury verdicts rendered same the same time are but, noted, accepted, may inadequate it well be to address problem of prejudice, especially charge undue if the CIP prior history rests on a or serious violent offense of violence. potential prejudice,
Because of the on motion or by agreement, trial, court may sever the CIP count for later or, which could jury be before a different if the defendant jury, trials, judge. separate waives before a To avoid which require could empaneling jury of a new and a repetition of of presented much to jury, evidence the first the court may take the done United States step, intermediate as was Joshua, (3d Cir.1992), v. 976 F.2d bifurcating the CIP charge allowing jury only to consider the current sub- — first, then, charges stantive after it renders a verdict on charges, those having that same hear the additional evidence and then charge. Presumably, consider the CIP charge CIP bifurcated could later be judge, heard provided agrees the defendant his to waive have the Joshua, it. out, consider As the court pointed every- agrees one, one that the approach good bifurcation is a even up hearing where the ends all of charges. The here, approach taken essentially separate, contempora- but neous, jury, judge-is trials —one before the one before the simply option. another Federal approved courts have ap- several these here).
proaches (although never the one used
Some have
found no error in the District Court’s
refusal
sever the CIP
count and its
stipulation
allowance
either evidence of or a
Bowie,
conviction. See
United States
prior
the defendant’s
(D.C.Cir.1998)
420
Stokes,
(stipulation); United
(7th Cir.2000)
These various administration. Absent some good judicial point view fact as to CIP allow the trier of agreement that would trial of the other rely produced evidence count to on the two, largely counts, may require bifurcation severance or prospect either of incon- trials. It also raises the duplicative, estoppel/double jeopardy bar. or a collateral sistent verdicts and the second possession on a count jury If the first convicts count, (or even on uncontested jury judge) acquits on the CIP status, law would requisite of the defendant’s evidence acquit- accepted; inconsistent verdicts require ignored. could not be tal on the CIP count charge and acquit possession on the If were possession, the issue independent no evidence there is arise; ques- probably would not even inconsistent verdicts whether, on collateral would be tion in that circumstance a second trial could even jeopardy principles, estoppel/double trial, here, of a simultaneous procedure used place.1 take charge the CIP in which a second trial on 1. There are circumstances here, charge permissible. guilty would be As and a verdict on convicting judge and the prospects, same raises the being raised acquitting and the issue or of the acquitting issue, me, it That seems may then do. of what the *35 that, estoppel/double holding on collateral by better resolved not but must judge may proceed principles, the jeopardy to count, allowing judge the rather than dismiss the CIP trial, is to only option or her knowing with a that his proceed actually evi- how views the acquit, regardless of the dence. can address here arise problem is that the we point
The whenever, not the any procedure, the does resolve by as other with and at the same time charge together CIP offense, and, jury acquits, that occurs and the possession when jeopar- really estoppel/double problem is one collateral procedure used approached way, is that dy. If the issue it; it has much to commend approach or a bifurcated trial here any to the judicial prejudice without saves time and resources in this convicted on Counts Had the case defendant. judge convicting impediment would no and there be If, occurred, that jury acquitted, 8 and 9. Counts matter, a or if had been severance even there would end Joshua type of bifurcation. as one of collateral approach I would the issue
Because agree Judge I Harrell estoppel/double jeopardy, do not 8 and 9 be appellant right waived his to insist that Counts that question is not the defendant waived dismissed. The whether 9; clearly, 8 and he did. right his to a trial on Counts handgun, charge may aggravated be an assault with substantive regarding may commission of that crime the evidence the defendant’s evidence, however, that, might sharp dispute. in its be in There also be assault, police at a later investigation of the searched the defendant gun. Acquittal place possession of a on the time and and found him charge jury's that the defen- could well be based on the doubt assault necessarily require and would therefore not dant committed the assault possession. acquittal charge, later on the CIP which could rest on the case, only independent The was no such evidence. In this there pertain- connecting appellant regulated was that evidence to a firearm ing shooting. right against issue is whether he waived his double jeopardy.
Although estoppel/double jeopardy may, collateral in some instances, waived, be allow where choice either to prejudicial otherwise inadmissible and evidence be admitted bifurcation, severance, procedure or to insist on such as here, employed I do not that believe the bar waiver is appropriate. By insisting procedure on a preclude would admitted, prejudicial being evidence from the defendant count(s) right does waive to dismissal of the CIP his/her acquittal possession charge. the event of an on a It would wholly impermissible to make a defendant choose between (to preclude unduly prejudicial one the admission of evidence) (double jeopardy). another HARRELL, J., by joined
Dissent RAKER *36 BATTAGLIA, JJ. case,
I am accept, unable to on the of record the reasoning Majority in opinion embodied the or its result. The trial, Majority procedure Appellant’s condemns the in utilized yet procedure put place largely was at Appellant’s with request acquiescence. Appellant and his should have foreseen, urging judge trial the structure the trial and done, of possibility return verdicts as was the real the Moreover, disparate Majority’s outcomes. the for an concern impingement Appellant’s right on to a trial gives little weight knowingly voluntarily real to the fact that he and waived his to a trial as to the counts for which the follow, court him. convicted For the reasons that I would judgment affirm City. the the Circuit Court for Baltimore
I. Majority rejects proposition judge the that the trial had grant admittedly the discretion the non-traditional simulta- procedure neous-trial Majority used the instant case. The opinion severely unduly undercuts the well-established principle that join charges ordinarily the decision to or sever court, lies within the sound discretion of the trial See Frazier State, Md., 597, 607, (1990); 569 A.2d Grandi- State, son v. 685, 705, But (1986); 305 Md. McKnight see 375 A.2d (1977) (mandating severance where a charged defendant similar but unrelated offenses establishes that “the evidence as to each individual mutually offense would not be admissible trials”). separate present case,
In the judge was aware potential for spill-over prejudice on 1 through counts 7 from the admission of Appellant’s prior criminal record on the (counts criminal-in-possession 9). charges 8 and This concern particularly acute here due to similar nature of the charged crimes in the indictment with predicate prior 8, i.e., underlying offense count battery. The simultaneous- erected, essence, trial proceeding an “informational wall” judge between the argument prejudicial presented evidence on the criminal-in-possession charges. This procedure precluded effectively any possibility that jury’s verdict on 1 through counts 7 could be tainted necessary Appellant’s admission of prior criminal record as to counts 8 and allowing while still opportunity the State the present its entire duplicative presentation case without evidence that would occur as a result of conducting consecu- tive trials.
As acknowledged by Majority (Maj. 394-95), op. at 4-258(c) Maryland Rule expressly vests a trial discretion to sever counts in a multi-count indictment to avoid prejudicial joinder. *37 procedure The trial utilized here was commensurate with the court’s power to sever and within its authority to “grant any justice other requires.” relief Assuming a properly defendant his or right waives her to a jury trial on adjudicated court, the counts see Md. Rule by the 4-246(b),1 I would implementation hold of the simulta procedure, traditional, neous-trial although not ap- strikes an 4-246(b) Maryland 1. Rule procedure details the accepting a crimi- nal by jury defendant's waiver of his to a trial in a circuit court. prejudicial twin concerns balance between propriate sound discre- economy, and is within the judicial joinder and reasoning, I my grant. explaining In trial court to tion of the as raised his Galloway’s questions both of shall address brief.
II. of the Jeopardy Clause that the Double It is well settled “prohib- States Constitution2 Fifth to the United Amendment punishment” as cumulative as well prosecutions its successive Ohio, 161, 166, 97 432 U.S. Brown v. for the same offense. State, (1977). Farrell v. 2221, 2226, See 53 L.Ed.2d S.Ct. (2001). 387, This constitutional 499, 504, 774 A.2d 364 Md. Fourteenth through the to this State guarantee applicable 784, 787, 89 Amendment, 395 U.S. Maryland, Benton v. see (1969), is rooted 2056, 2058, 23 L.Ed.2d S.Ct. courts often draw on the Maryland’s law.3 Maryland common our guidance developing Court for Supreme cases reason, and, our com- for this jurisprudence jeopardy double interpre- constitutional harmonious with generally law is mon provision.4 tations of the federal a criminal defen- provides jeopardy prohibition The double (1) against: a second protects It protections. three basic dant (common acquittal law offense after prosecution for the same (2) prosecution for the a second plea acquit)-, of autrefois to the United Clause of the Fifth Amendment 2. The Double Jeopardy subject any person for the provides, “nor shall States Constitution put jeopardy life or limb." same offence to be twice Maryland provision express jeopardy [in the "no double 3. While there is Constitution], Maryland against it under common protection there is 650, 708, (2000); State, 759 A.2d 360 Md. law.” See Ware (1979) (discussing Bell jeopardy). against protection law double common law, however, describing complex area of Appropriately jeopardy] [double law Supreme Court has said "the decisional challenge the Sargasso which could not fail to a veritable Sea area is States, U.S. judicial navigator.” v. United intrepid most Albemaz (1981). 67 L.Ed.2d275 101 S.Ct. *38 425 (common plea law conviction offense after same autrefois (3) offense. for the same convict); multiple punishments and 876, 485, 494, 881 659 A.2d Md. Griffiths, v. 338 State See 2225, 165, 53 Brown, 97 at (1995) at S.Ct. 432 U.S. (quoting 74, State, 55, (citation omitted)); v. 325 Md. 187 L.Ed.2d Huff 337, State, (1991) Md. v. 320 428, (citing Gianiny 437 599 A.2d (1990)). 795, 347, 799-800 577 A.2d understanding jeopardy of double proper to a Indispensable that man- considerations policy appreciation is an law many occasions has stated It been its enforcement. date on “the belief premised jeopardy prohibition double that the not be power should with all its resources that ‘the State for attempts to convict an individual repeated to make allowed offense, subjecting defendant] embar- alleged thereby [a an him rassment, compelling her] expense, and ordeal and insecurity, as well as anxiety continuing in a state live though defen- possibility [a that even innocent enhancing the ” Dinitz, v. 424 guilty.’ United States may still be found dant] (1976) 600, 606, 1075, 1079, L.Ed.2d 267 96 47 S.Ct. U.S. 187-88, States, 184, 78 S.Ct. 355 U.S. (quoting Green United (1957)). 221, 223, 2 The same sentiment L.Ed.2d 199 State, 302 Md. in Mason v. expressed by Court (1985) 11, Parks v. (quoting 488 A.2d 957 (1980) associat- (discussing the rationale Discussing policy consider- jeopardy)). with double ed Clause, Supreme supporting Jeopardy ations the Double Florida, S.Ct. Tibbs U.S. Court (1982), explained: L.Ed.2d for the forbids a second trial Jeopardy Double Clause
[The]
opportunity
another
affording
prosecution
purpose
pro-
first
it failed to muster
supply evidence which
Clause’s
prohibition, lying at the core
ceeding. This
honing its trial strate-
prevents
from
protections,
the State
attempts
through successive
perfecting
its evidence
gies
unfairly
sallies would
Repeated prosecutorial
conviction.
at
of conviction
and create a risk
the defendant
burden
governmental perseverance.
through sheer
Tibbs,
457 U.S. at
S.Ct.
Relying
State,
on this Court’s decision in
v.
Wright
552,
(1986), Appellant’s
The
on
closely analogous
State relies
two
jeopardy
double
in support
cases
of its contention.
See
United
Jeffers
States,
(1977),
U.S.
S.Ct.
L.Ed.2d 168
Johnson,
Ohio
104 S.Ct.
In a
Court found
to
the case
Jeffers
exception
general
an
to
that
Jeopardy
rule
the Double
prohibits
government
Clause
a State or the federal
“from
trying
greater
for
it
defendant
offense after
has convicted
offense,”
him of
general
lesser included
which
rule had been
Ohio,
in Brown v.
161, 169,
day
that
432
announced
same
U.S.
(1977).
97 S.Ct.
Jeffers,
Similarly, Ohio v.
493,
2536,
467 U.S.
104 S.Ct.
(1984),
that Brown’s
428 presentation or to its of its case more than once hone
sources
Johnson,
501,
2542,
at
at
467 U.S.
S.Ct.
through a trial.”
circum
concluded that under the
III.
case,
Appellant was indicted
nine related
present
In the
inci-
stemming from the same
single
in a
indictment
charges
his motion for severance of
Appellant
At
filed
dent.
the time
from
nothing
prevent
the State
counts 8 and
there was
offenses,
multiple
including
lesser
prosecuting Appellant
Johnson,
See
offenses,
proceeding.
included
one
2541-42,
425;
Jeffers,
at
at
81 L.Ed.2d
U.S.
S.Ct.
Frazier,
168;
at
53 L.Ed.2d
97 S.Ct.
U.S.
Moreover,
appears
it
Responding to the State’s request limiting jury instruc- gestion Appellant instead tion, replied: counsel Appellant’s *41 a willing right to his to
[Galloway] advises he’d be waive 8 and 9. jury trial on Counts to confer permission In asked the court’s response, the State counsel, which the said: Appellant’s with after State Honor, willing if defendant are Your the —if counsel jury to a trial on the last two counts right to waive their those, object will not on the State proceed [c]ourt before the from the indictment. severing to those two counts on his Appellant’s qualified Appellant counsel Thereupon, jury to a trial and the knowing partial waiver his proceed: in which the trial would manner [Galloway’s Galloway, you Mr. understand that counsel:] counts of going jury are to have a trial the first seven we your going people case? It’s to be 12 selected at ran- dom____Those case, people your will hear and all 12 of agree proven ... must has its case them State beyond you doubt before can be convicted. Do reasonable you understand that?
[Galloway]: Yes.
[Galloway’s going jury We are to have a trial counsel:] respect through to 8 and Counts Counts however, my understanding you’re willing give up it’s to your right your to a trial and judge] let trial decide [the guilt Again, judge] trial to [the innocence. have be would beyond you convinced a reasonable doubt before could be counts, just convicted of two but it her those would making you willing that decision and not 12 citizens. Are give up your right to a trial to last two those counts?
[Galloway:]Yes. added). thereafter, (Emphasis Shortly and before the sworn, greater proffered the State detail the manner anticipated proceed, which it and Appellant would concurred with that at Maj. op. recitation. See n. 9. principles I think it clear enunciated Jeffers applicable on Appellant’s Johnson are the record before us. deliberate and election to calculated sever counts and 9 from engage the indictment and to in the simultaneous court and jury trial In proceeding clearly hearing were trial tactics. Appellant’s motion for a new trial on 27 June Appellant’s making discussed his motivation in counsel request. distinguish Asked the court to case bar Johnson, Supreme from Appellant’s Court’s decision in responded: counsel great Johnson ... I think degree
[In ] there was finagling by Defense counsel to get plea the lesser included up offense heard first order to set the case *42 to Now I will admit jeopardy it double standard. [a]
make in this I finagling my part own case. amount certain [cjourt I to hear charges. asked the did to sever the move nine, but the reason for that eight counts and decide the Honor, not so that I could raise the shield Your was that was at a date. The reason for jeopardy double later my to that client had jury I did not want the hear that conviction. misdemeanor discussion, his Appellant’s counsel reiterated further
After prior remarks: nature, of that finagling anything
Now as far Defense evidence, keep that was to the the only purpose of the Your away jury. from Now convictions misdemeanor Honor, that I’m aware of the case that cites [the State] well been an abuse of this discretion [c]ourt’s it would not have jury to charges gone all the to have require to it within says Frasier [sic] denied the motion sever. did so to sever and the sever [c]ourt discretion [c]ourt’s I that. past think we’re urging in similar tactics in the court
Appellant engaged
until after the
had rendered its verdict.
defer its verdict
trial,
argument on his motion for new
During Appellant’s
“fortuity”
in which the
questioned
sequence
court
its
Noting that
it had deferred
verdicts were rendered.
request,5
questioned
the court
whether
Appellant’s
verdict at
finding
bound
court’s factual
would have been
request and rendered
disregarded Appellant’s
had the court
Appellant’s coun-
Avoiding
response,
first.
a direct
its verdict
memorandum,
July
dated 27
In a footnote in the trial court’s
trial,
judge explained the
denying Appellant’s motion for a new
the trial
delaying
her verdict:
reason
readily acquiesced
request
to the defendant’s
The court
any possibility jury’s verdict be taken before the court's to avoid
of,
by,
If
and be influenced
the court’s verdict.
would learn
request
the time of his
that double
defense counsel believed
jeopardy
estoppel precluded the second
fact-[finder]
or collateral
being
from
with the first fact-
announce its decision
inconsistent
decision,
that view with the
finder to announce its
he did not share
filing
any
of the motion for a new trial.
court
time before
*43
explained
sel
in
strategy
“[his]
that
this
that
case” was
“the-
jury’s
[c]ourt would follow the
verdict.”
entirely
Appellant’s
it is
within
right
attempt
While
the
to
to
process
in
influence the trial
a manner
that
serves his
best
interests,
nonetheless,
reap
cannot
the
Appellant
intended
efforts,6
of
benefits
his
but
their attendant
and
avoid
burdens
consequences. Appellant
foreseeable
was
to have all
entitled
of
charges against
proceeding.
the
him
in
resolved
one
As-
suming, arguendo,
criminal-in-possession
that
the
counts were
any
the “same
first
of
offense”
seven counts
the
indictment,7
Jeffers,
Appellant’s
like the defendant
in
it was
own action
resulted in
that
functional
of
equivalent
the
two
Moreover,
separate
Appellant
complete appreci-
trials.8
had a
brief,
reply
Appellant
dispute
In his
to
seems
the
of events
6.
chain
that
led to
procedure
Arguing
the trial
utilized in the instant case.
the State
procedural
history”
support
argument
to
"[r]e-work[ed]
the
its
that
Appellant
responsible
was
manner
in
the
which the trial was
conducted, Appellant claims
he
that while
moved for
of
severance
the
charges,
anticipated
"completely
separate judge
jury
he
and
trials.”
Appellant
merely acquiesced
prosecutor’s proposal
contends he
to the
procedure,
prosecutor
for the
court
simultaneous
and
trial
as the
"conditioned
consent
[for
his
severance
counts 8
on the
9]
and
two
proceeding simultaneously.”
trials
supports
I believe the record
in,
Appellant
State's
that
prompted,
fully participated
contention
the decision to conduct
the trial
in the manner
it
in which
was
conducted.
Frazier,
Appellant
7.
analysis
that
"carry
contends
Court's
this
under
(count 7)
ing
handgun
possession
handgun by
person
] and
[
(counts
9)
prior
with a
conviction [
]
8 and
should be deemed the ‘same
Blockburger
offense’ in
with
accord
the ‘same evidence'
test
established
States,
United
284 U.S.
52 S.Ct.
Moreover,
July
that it had
the court noted
its
2001 memorandum
request, and
two
at defendant’s
that the “court
"severed” the
counts
added).
simultaneously.”
(Emphasis
trials were heard
distinguished
Appellant
case
from
contends that
can be
Jeffers
prior
convic-
based
the fact that those cases involved
Johnson
prosecution,
opposed
acquittal
tions
first
as
to the
which oc-
in the
however,
Appellant disregards,
curred in the instant case.
the extraor-
dinary
employed
did
procedure
that was
in this case. The State
pursue
prosecutions;
separate,
rather it
a course
was
seriatim
decisions
prior
also
analysis is consistent
foregoing
subse
bar to a
jeopardy
apply a double
that have refused
for rea
terminated
jeopardy
initial
where
prosecution
quent
Thus,
example,
for
insufficiency.
evidentiary
other than
sons
of a conviction
appeal
successful
following a defendant’s
retrial
principles.
jeopardy
under double
is not barred
trial error
for
1587,
Tateo,
84 S.Ct.
377 U.S.
United States
See
Ball, States
(1964);
U.S.
United
12 L.Ed.2d
(1896) (“[A]
L.Ed. 300
662, 672, 16 S.Ct.
upon
him
an
against
defendant,
judgment
procures
who
same
aside,
upon
anew
may
tried
to be set
indictment
indictment, for the same offence
indictment,
upon
another
omitted).
But see
convicted.”) (citations
of which he had been
(announc
Burks,
2147, 57 L.Ed.2d
at
98 S.Ct.
U.S.
is set
when
verdict
exception barring retrial
ing the narrow
evidence). While this well-
insufficiency of the
for
aside
legal
various
theor
under
justified
rule has been
established
following three
ies,10
on the
commonly
premised
it most
is
simultaneous,
required one verdict to be an-
simply
trials that
but
Indeed,
directly
responsible
Appellant
before the other.
nounced
supra
See
note 5.
were rendered.
the order which the verdicts
where,
urges
inapposite
Accordingly,
Appellant
the distinction
here,
court and
responsible for the simultaneous
the defendant is
trials,
are rendered
in which the verdicts
as well as the order
independent fact-finders.
*45
allowing
general rule
retrial
that the
It has been stated on occasion
conviction,
announced
United
of a
first
on a defendant's reversal
1192,
(1896),
662,
Ball,
434 (1)
grounds:
conviction,
in reversing
defendant’s role
see
Pearce,
North Carolina v.
711, 720-21,
2072,
395 U.S.
89 S.Ct.
2078,
(1969)
States v.
400 U.S.
484 n.
91 S.Ct.
557 n.
(1971)
Tateo,
(plurality opinion);
L.Ed.2d 543
435
240,
clean”);
225,
Harris v.
539
accord
wiped
(1988)
637,
rationale of
(applying
644
the “clean slate”
A.2d
Parks,
19,
Pearce);
(explaining
436 State, 576, 587-88,
mistrial”).
625
See also Thanos
330 Md.
(1993)
course,
932,
a defendant
(“Ordinarily,
when
A.2d
937
mistrial,
right
his
to have his
a
he waives
‘valued
requests
”)
v. Hunt-
Wade
(quoting
tribunal.’
by particular
a
completed
837,
(1949));
er,
689,
834,
684,
L.Ed.2d this Court in in punishing A.2d at 601. as the societal interest Just to secure a guilty preserved, so too is defendant’s reluctant, at fair trial Trial courts would be protected. least, very grant motion for severance defendant’s simultaneous criminal-in-possession charges and conduct give if to do so would rise to double court trials *48 A that allow for jeopardy implications. decision this would effect, in would sound the death knell for trial possibility, manifestly in procedure that is a defendant’s interest. in
Accordingly, principles finality applied I would find of the freely elects have Wright inapplicable where defendant and tried to two counts of a multi-count indictment severed court, to a remaining the counts tried the elects have therefore, proceeding. in a I conclude simultaneous-trial here, presented Appellant under the circumstances that deprived jeopardy protections not of the benefit of double of Fifth and Jeopardy under either the Double Clause the or, Maryland independently, Fourteenth Amendments under Moreover, for jeopardy principles. common law the double reasons, foregoing estoppel the doctrine of collateral embodied Maryland under the Fifth and Amendments and Fourteenth law, apply common does not the instant case.
IV. Appellant’s Appel- I turn now to claims of trial error. other guilty lant’s first is that trial court’s verdicts on contention fatally they impermissi- counts and 9 are flawed because are bly jury’s guilty of not on all inconsistent with verdict State, Relying counts. on 238 Md. 209 A.2d Johnson cases, (1965), Appellant contends that when related jury, of is verdict] the “source [inconsistent tolerable; inconsistency is when the source of the inconsisten- follows, cy Appellant argues, is it not.” It judge, inconsistency, its verdict must “because the court created the be vacated.” and related disputes applicability
The State Johnson light fact that “the judice, [trial cases in the case sub [guilty] verdicts were consistent with each other two court’s] jury’s way governed by in no the outcome of the and were agree. general governing I The rules inconsistent verdicts.” apply in a criminal trial do not to inconsistencies verdicts separate fact-finders rendered between the verdicts simultaneous, separate, albeit court and trials conducted request. at a defendant’s by a governing rules inconsistent verdicts rendered non-jury in a trial this judge
trial were discussed Court (1990): Anderson, State ... common It is settled as nonconstitutional guilty and not principle, law inconsistent verdicts trial, ordinarily at a guilty, by judge nonjury a trial are remedy judg- is to permitted. The reverse vacate the Where, guilty on the inconsistent verdict. ment entered however, inconsistency in the at a apparent there is verdicts trial, nonjury but where the the record satisfactorily explains apparent inconsistency, guilty *49 may only apparent stand. If is an inconsisten- verdict there cy disappears upon of the trial which substance review explanation, guilty will not vacated. court’s the verdict (footnote Anderson, at at 320 Md. A.2d omitted) (internal omitted) (citations omitted).12 quotations State, (1986) 46, 58, 358, 307 Md. 512 A.2d See also Shell an in a (reversing judgment guilty the inconsistent verdict trial); Johnson, at 772 nonjury 238 Md. 209 A.2d trial, however, Inconsistent verdicts are tolerated. See 46, 54, (1986) ("The general 512 A.2d Shell mistake, may product lenity, view that be the of or a is inconsistencies unanimity, compromise and that correction of such to reach continual of matters would undermine the historic role of the as the arbiter it.”) questions put to (“ for inconsistency ‘[W]e reverse ... because we can have no judgment confidence in a convicting [the of one defendant] judge, by another, crime when the his acquittal of appears to rejected only have the support evidence that would the convic ”) tion here.’ (quoting approval United States v. May (2nd Cir.1960)). bury, 274 F.2d As out, correctly points State the critical—and obvi- ous—distinction between the cases Appellant Majority and the cite and the case now us is before the absence of an internal inconsistency in the trial court’s verdict. This is not a case that demands reversal because we have no “confidence” Indeed, trial court’s judgment. the court articulated the reasons for its Finding verdict. Appellant had been previously convicted predicate underlying offenses counts 8 and explained court remaining that the “evi- dentiary issue whether [Appellant] possessed a firearm on September 1997.” The court testimony found the witness, Knox, State’s chief Robert to be credible. The court further noted that Mr. Knox’s testimony was corroborated Appellant’s witness, mother, own his to the extent that “she heard shots that night and approximately ten to 12 seconds later she looked out her window [Appellant] and the standing steps on the of her home.” Accordingly, the court found that Appellant in possession “was gun pur- [a] for poses of [sic],” Article 27 Section 445D and entered a convic- tion on those counts. Clearly, the trial court is free to credit testimony of the witnesses. See State v. Stanley, 351 Md. (1998) (“Weighing credibility witnesses and resolving any conflicts in the evidence are tasks proper finder.”). 8-131(c) the fact See also Md. Rule (stating that an action “[w]hen has been tried a jury, without appellate court ... give will regard due opportunity of the trial court witnesses.”). credence
Appellant provide, does not find, nor was I able to authority *50 for the proposition that the trial court in the trial of a criminal by matter is jury’s bound a separate, verdict in but simulta- 440 See
neous,
request.13
trial
held at a defendant’s
proceedings
brief,
Appellant’s
Appellant’s
Though
in
counsel seized
not raised
Majority
oral
upon
passing by
in
a member of the
at
a comment made
argument concerning
authority
court
render a verdict
the
of the trial
jury’s
See
the
of common factual issues.
inconsistent with
resolution
regard,
analogy
Maj. op.
between the
at
In this
an
drawn
400-16.
case,
jury
in
the
presented
and
the
and
simultaneous court
trials
instant
where,
presence of
presented in a civil context
due to the
circumstances
issues,
jury and
equitable
legal
conducted
to the
and
a trial is
both
both
earlier,
single proceeding.
has become
a
As noted
this
to the court in
Majority’s
d’etat.
it is true in
latter circumstance
raison
While
jury's
equitable
with a
a
award
relief inconsistent
that
cannot
verdict,
Corp.,
Gramling Eng'g
322 Md.
588
see Edwards v.
793,
law);
(1991) (citing
Higgins v.
approval federal
A.2d
with
case
797
cases,
Barnes,
532,
724,
(1987),
728
530 A.2d
these
controlling
Majority opinion, are
in a
those
in the
and
discussed
right
jury
a
has waived his
to a
trial.
criminal context where defendant
procedure Maryland,
merger
equity
in
of law and
Since
1984
single
may
equitable
in a
See
parties
join legal and
claims
civil action.
(abolishing
equity,
rule
separation
of law
Md. Rule 2-301
"[tjhere
be
as 'civil
provides
shall
one form of action known
that
541,
").
Higgins,
In
Md. at
Finally, Appellant Mr. it credited proof when burden the State’s shifted any “evidence on the absence testimony based Knox’s to than that testified anyway other occurred incident the indi- this statement argues that Appellant Knox.” by Mr. of other on “absence focused the improperly court cates the credibility of adequately evidence,” failed to evaluate and mer- is without contention testimony. Appellant’s Mr. Knox’s it. jury, explained instructions to the judge, her
The trial proof: concerning the State’s burden following charges. innocent presumed is [Appellant] The throughout [Appellant] remains presumption[ ] you are unless and is not overcome every stage of trial is [Appellant] doubt that a reasonable beyond convinced guilt of the proving has the burden guilty. The State re- The burden doubt. beyond a reasonable [Appellant] [Appellant] throughout the trial. The mains the State his prove innocence. required legal are to by claims resolved the court equitable claims are to be power’ to reach jury, judge is ‘without be resolved ”) approval (quoting with jury.’ with that of the conclusion inconsistent Cir.1988)). Fenik, (6th F.2d Gutzwiller v. safeguard an civil context to the need attendant It is clear that legal equitable claims are right by jury where to a trial individual’s context inapposite in a criminal single proceeding is in a civil combined those jury trial as to properly waived his defendant has where a simultaneous, proceeding. separate, but trials giving rise to the counts verdict, supra supporting its see Discussing evidentiary evidence “[tjhere no evidence that [wa]s noted that pages the trial court 439-40 by Mr. anyway other than that as testified occurred in the incident Knox,” testimony credible as to accordingly “Mr. Knox's found facts.” the[ ] salient Giving appropriate deference to the trial court’s decision and an appellate because court presumes often the trial law, properly applies understands and see Whittlesey (1995), I would judge applied conclude that that same standard to her deliberations.
I would affirm judgment of the Circuit Court for City. Judges Baltimore Raker and Battaglia authorize tome that they join state reasoning expressed *52 in this Dissent.
No. 2002. Appeals Maryland. Court of
Oct. (Kramer brief) Irwin R. Kramer Connolly, & on of Owings Mills, petitioner. for (Offit, Kurman,
James R. Denick, P.A., Barrett Yumkas & brief) Mills, of Owings respondent. Argued BELL, C.J, ELDRIDGE, RAKER, before WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.