*1 949A.2d PRICE, Lawrence Jr. Maryland. STATE of Sept. Term, 19No. 2007. of Appeals Maryland. Court
June 2008. *2 Malloy, Michael R. Public (Nancy Asst. Defender S. For- ster, Defender, Baltimore, MD), brief, Public on for Petitioner. O’Connor,
Gary Gansler, E. Atty. (Douglas Asst. Gen. F. Gen., Baltimore, MD), brief, Atty. for Respondent. BELL, C.J., HARRELL, ARGUED BEFORE JJ., BATTAGLIA, GREENE, ELDRIDGE, C. JOHN ALAN M. CATHELL, (Retired, WILNER and DALE R. JJ. Specially Assigned). *3 ELDRIDGE, (Retired, Judge
JOHN C. Specially Assigned). case,
In this criminal we the granted defendant’s for petition Maryland a writ certiorari to re-examine the common law principle that inconsistent verdicts are normally permissi- granted ble criminal trials. We also the State’s petition for a of certiorari which presented writ issue the (2002), § whether Code 5-905 the Law Criminal Article, authorizes the enhancement multiple of sentences for counts from the arising same criminal transaction.
I. The evidence at State’s the trial can be briefly summarized as follows. On November Officer Pollock Richard Harris, Sergeant and William the Baltimore City Police Department, conducting were surveillance at an apartment complex City Baltimore located on Winchester Street. Known an police drugs officers as area where are sold,” “commonly Officer Pollock and Sergeant initially Harris observed the apartment complex from their police unmarked time, car with binoculars. During they witnessed several in the Among group standing breezeway. in a people Price Tucker. and Damien breezeway were the defendant times, people, about fifteen at different police officers saw then complex and apartment lot of the parking drive into the meeting the breezeway. Upon group approach receive cash and officers witnessed Tucker group, police turn, Al- visitor, object. small was handed a then each standing one of the individuals though Price was money, Price not see receive police officers did breezeway, to be appeared in conduct that anything, engage distribute Pollock later testified that drug dealing. Officer area, there’s a constant Apartment] Winchester “[i]n [the or five and people flow where there be four sometimes they’re communicating and come people up then other on, but that going even while sales are with others talking in the actual they’re mean that involved necessarily doesn’t on, it as was the going in the area as They’re just sales. I thought [Price].” case that transactions, Pollock and observing Officer After a series up. police Once additional Sergeant Harris called back arrived, ap- exited vehicle and the officers their officers Seeing breezeway. in the the officers group proached fol- to run. Pollock everyone started Officer approaching, bag Tucker upstairs, dropped and Tucker lowed Price dangerous substances. Price containing suspected controlled entered, ran floor up apartment, and Tucker third them, followed and waited locked door. Officer Pollock backup key until officer arrived with apartment outside the *4 office. When the officers apartment from rental men they three men. The three apartment, entered the saw room, of jumped to where one of them out a ran a back Tucker, and Offi- apprehended and ran. One officer window bag containing a apprehended cer Price who threw a Pollock currency ground. handgun and U.S. to drug in 18 counts with various offenses charged Price was drug Three of the substantive and three firearms offenses. trafficking into of a crime” as charges category “drug fell (2002), § 5-621 of the Criminal Law defined in Code possession Article. Those offenses were of heroin with intent it, possession to distribute of cocaine with intent to distribute it, possession marijuana and of with intent to it. distribute of charged Nine the counts that Price engaged conspiracies distribute, with Tucker to or to with to possess intent distrib- ute, heroin, possess cocaine, to marijuana. or and The three (1) charged possessing firearms offenses were a firearm dur- crime, a ing drug trafficking and relation to under sufficient circumstances to a nexus to the drug trafficking constitute crime, 5—621(b)(1) § in violation of Law Criminal Arti- (2) cle,1 regulated a possessing having firearm been convicted (3) prior disqualifying felony, unlawfully carrying a and handgun. transporting charges a The three were firearms ground based the same incident of Price a throwing to the bag handgun. Finally, a Price containing charged simple possession heroin, cocaine, three counts with marijuana.
In his to jury, instructions the trial judge told possession firearm, that Price could be convicted during crime, relation to a drug trafficking under constituting trafficking, circumstances a nexus to if drug Price drug was also convicted of one of trafficking crimes. The stated, part, judge pertinent as follows: “Ladies and gentlemen, charged the defendants are with crime of possessing during firearm and in relation to drug trafficking crimes. with to Possession intent distrib- heroin, marijuana, ute cocaine and conspiracy possess heroin, with intent to distribute marijuana cocaine and drug are crimes. trafficking
“You may not consider crime of a firearm possessing during and in to a relation drug trafficking you crime unless found the defendant possession the intent 5—621(b)(1)provides 1. Section as follows: "(b) Prohibited.—During drug trafficking and in relation crime, person may not: "(1) possess a firearm under sufficient circumstances constitute drug trafficking a nexus to the crime...." *5 marijuana, conspiracy heroin, cocaine distribute and/or or marijuana, conspiracy heroin, cocaine distribute and/or heroin, cocaine distributing of with the intent possess and/or marijuana. must guilty you is not charges on those your
“If verdict of firearm of guilty possession the defendant not find drug trafficking of a crime.” the commission charges. of acquitted drug trafficking Price all intent to Thus, guilty was not of with possession Price found Moreover, Price heroin, cocaine, marijuana. and distribute In nine addi- conspiracy on all counts. guilty was found counts tion, Price on the two firearms jury acquitted the been con- regulated having of a firearm charging possession carrying transport- prior felony, unlawfully of a and victed the the trial instructions and handgun. Despite judge’s ing of a guilty possession the found Price acquittals, crime, trafficking during drug in relation to a firearm and constituting drug a nexus to traffick- under circumstances addition, simple crime. convicted Price ing cocaine, heroin, marijuana. possession of attorney guilty moved to strike the verdict on Price’s during of a in relation charging possession count firearm 5—621(b)(1) crime, § under to a the Crimi- drug trafficking Article, with ground that it was inconsistent nal Law argued counsel that acquittals. specifically, More defense trafficking an ele- drug commission crime is “essential 5—621(b)(1) § ment” of the firearms offense under Article, Criminal Law that the had determined that commit crime. The drug trafficking prosecut- Price did not § attorney agreed verdict on the 5- ing 621(b)(1) acquittals firearms count counts, argued drug trafficking on the but he that such After permissible. receiving legal inconsistent verdicts were judge memoranda from the the trial denied the motion parties, Court, ground on the that the in this as well as strike cases cases, held are some federal have judge, sentencing hearing, The trial at the sen- allowable. Price to firearms years imprisonment tenced twelve *6 (b)(1), any § under 5-621 other conviction consecutive to sen- tence, the first five to run years parole. without Article, §to
Pursuant 5-601 of the Criminal Law Price’s for heroin and each possession convictions of cocaine carried a years maximum of four a not imprisonment exceeding or fine $25,000 marijuana or both.2 His of conviction possession subjected year Price to a maximum sentence in prison of one $1000, or not or both. court exceeding judge a fine The trial imprisonment penalty sentenced Price to the maximum for convictions, possession each of his and then doubled each sentence under 5-905 apparent authority §of 5-905(a) Law person Criminal Article. Section states that “[a] of a subsequent subject convicted crime under this title is to ... of imprisonment a term twice that otherwise author- ized. ...” Price previous had a conviction in November 2002 possession for with intent distribute a dangerous controlled result, As a substance. Price was in this case to sentenced eight years imprisonment possession heroin, of a for consecu- cocaine, eight years possession years tive of two marijuana. concurrent for the of possession Price of appealed Special Appeals, arguing, Court alia, Court it inter Circuit erred when refused to strike the conviction for of a possession during firearm drug relation a crime trafficking because the conviction was (2002) provides § 2. Code of 5-601 the Criminal Law Article part: in relevant " § Possessing administering dangerous 5-601. or controlled sub- stance. (a) title, general.—Except provided person In as otherwise in this a may not: (1) possess dangerous or another administer to a controlled sub- stance, directly by prescription unless obtained or order or from an provider acting professional practice;.... authorized the course (c) (2) Penalty.—(1) Except provided paragraph of this sub- section, person a who violates this section is of misdemeanor subject imprisonment exceeding years conviction on is not $25,000 exceeding or a fine not or both. (2) person A whose violation of this section involves use or possession marijuana subject imprisonment exceeding $1,000 year exceeding fine not or both.” drug charging all counts acquittals inconsistent with addition, trial argued In Price that the trafficking crimes. all three doubling sentences for prison his court erred the trial Price contended that his convictions. drug possession Article, and § misconstrued 5-905 of Criminal Law judge limited to “one under that section is doubling sentences part relevant as fol- only.” provides Section 5-905 count lows:
“ Repeat § offenders. 5-905.
(a) subsequent convicted general.—A person subject this title to: crime under (1) author- imprisonment term of twice that otherwise ized; *7 authorized;
(2) the fine or twice otherwise (3) both.
(b) section, interpretation.—For purposes Rule of this if, crime, subsequent crime is considered a before crime, has convict- conviction for the offender ever been any ed under title or under law of the United of a crime relating controlled States or of this another state to other dangerous substances.
(d) with Sentencing conjunction other sentences.—A single under sentence on count this section conjunction other under this imposed with sentences title.” opinion, reported Md.App. Price (2007), Special the Court of held Appeals
that “inconsistent
in a
trial are
tolerat-
generally
Accordingly,
ap-
ed under
the intermediate
law.”
court
verdict on
firearms count.
pellate
upheld
guilty
however,
Price’s
Special Appeals agreed
Court of
with
drug
contention that his
for the
convic-
possession
sentences
reasoned
improperly
appellate
tions were
doubled. The
court
§ ambiguous
“is
in that it does not
language
5-905
whether an
on
penalty
imposed
make clear
enhanced
can be
conduct,
single
each
count
out of a
every
arising
course
... or whether an enhanced
can
penalty
only be
imposed
one count of a multi-count charging document based on a
single
course of conduct.” Price v.
supra, 172 Md.App.
387-388,
As earlier
Price
petition
filed a
for writ of
certiorari
regarding
inconsistent verdict question,
State simultaneously
petition
filed a
for a writ of certiorari
respect
to the interpretation
§
and application of
5-905’s
sentence enhancement provisions. This Court granted both
petitions,
Price v.
II. We shall first address the inconsistent verdict issue. In Maryland, the principles concerning inconsistent verdicts judicially have developed over time part of this State’s common law. Unlike several jurisdictions, other there are no Maryland statutes or promulgated procedural rules which relate to inconsistent verdicts generally or relate to specific types Moreover, inconsistent verdicts. the Maryland com mon principles law governing inconsistent verdicts are them *8 confusing selves and somewhat inconsistent.
A. “It has been position the of this Court that inconsistent injury verdicts permissible trials are in criminal cases.” State Williams, 172, v. 189, (2007). 397 Md. 294, See, 916 A.2d 305 State, e.g., Wright 552, 576, v. 307 1157, Md. 515 A.2d 1169 (1986) (“[inconsistent by verdicts a jury normally are tolerat- ed”); State, 54, (1986) Shell v. 46, 358, 307 Md. 512 A.2d 362 (“[Cjonvictions based on are verdicts tolerat- ed”); State, 583, Mack v. 601, 1344, 300 Md. 479 A.2d 1352- (1984) (Trial 1353 court’s denial of relief “was consonant with
19
inconsistent verdicts can
...
holdings
Court’s
(1975) (A
State,
546, 337
81
stand”); Ford v.
274 Md.
A.2d
(4-2)
criminal
upheld inconsistent verdicts
divided Court
using handgun
convicted
where the defendant was
case
committing
acquitted
of a
felony
commission
but
felony).
usually given
The reasons
very
same
an
are that
has
of inconsistent verdicts
toleration
“
and ‘that
singular
justice system
role in our
historic or
mistake, or a
product
lenity,
inconsistencies
”
State,
Galloway v.
371 Md.
unanimity,’
to reach
compromise
State,
(2002).
v.
379, 408,
653,
A.2d
See also
Shell
54,
Md.
inconsistent
verdicts are
simply
tolerated
do not apply
when a
judge
rendering
is involved
one of the inconsistent
State,
576,
verdicts.” See
Wright
supra,
also
v.
Even with
to inconsistent
jury verdicts in criminal
cases, Maryland cases have from time to time narrowed the
Thus,
area of toleration.
guilty
verdicts of
See,
State,
have long been held to be invalid.
e.g., Shell v.
(“[N]ot
55,
supra,
inconsistent counts will be declared in Maryland”). invalid addition, Special Court of Appeals has held that jury verdicts a criminal will case not be allowed where the trial judge give failed to an instruction on the requirement verdicts, of consistent even though there had been no request for such instruction and the defendant had objected the failure. Stuckey Md.App. (2001), 157 n. 660 n. 3 and cases there cited. Another exception to the principle allowing inconsistent recognized Hoffert (1990).3 A.2d 536 charges. 3. The defendant faced four In order to achieve Hoffert consistency, finding guilt charge required on the finding fourth guilt charges. on a least one of the first three found the three, guilty” defendant "not initially first but was silent with respect acquittals fourth. Such silence was consistent with the thereafter, charges. Shortly began on the first three when the clerk jury, judge hearken the began say something, and the trial then juror charge, gave called attention to the fourth and the foreman *10 of inconsis upon the toleration significant A limitation discretion, court, need in its that the trial jury verdicts is tent In may grant relief. inconsistent verdicts accept 1352, 599-600, 479 A.2d at 300 Md. at supra, Mack v. decide duty jury “that it the of a Court made it clear this law,” that rules of according case to established a criminal the verdict” when trial court has the to set aside power “the law, jury verdicts are the the that inconsistent jury misapplies court’s instruc “contrary the to the trial contrary to law the tions,” of relief “is within discretion granting and that the however, criteria, forth have been set of the trial court.” No in deciding trial courts opinions guide in this Court’s cases jury or not inconsistent verdicts criminal whether by judges. Typically, trial accepted should be case, judges accepting trial given by the reason present under the they permitted verdicts is that are jury inconsistent no standard for a trial court’s law. This reason furnishes jury verdicts as to whether inconsistent exercise of discretion all inconsis reasoning, not stand. should or should Under verdicts would stand. jury tent Maryland exception recent important
The most and most jury of inconsistent verdicts is inconsisten- the toleration Taha, Management in civil actions. Southern cy 627, (2003), civil case which the Md. verdicts, for the this Court jury rendered inconsistent first verdicts irreconcilably time held “that such stand____” cannot underlying holding the Taha background
Some of the decision, in to the Taha noteworthy. year prior one About Galloway supra, charge. polled, "guilty” After the verdict on the fourth ground judge accepted it was trial verdict on Court, however,
permitted by Maryland
the convic-
law. This
reversed
verdicts,
charge, pointing out that the initial
includ-
tion on the fourth
charge,
legally proper,”
ing
“were not
the silence on the fourth
"were
judge's
contrary
with
and ... were in full accord
law
Hoffert,
properly
319 Md. at
instructions which
reflected
law.”
541.
572 A.2d at
involving
by
criminal case
inconsistent verdicts
both the
judge,
pointed
by
and the trial
this Court
out that verdicts
jury,
which were
judge,
trial
Judge
are not allowed in civil cases.
for the Court
Cathell
666):
(371
then stated
Md. at
809 A.2d at
why
consistency
see no reason
requirements
“We
stringent
criminal cases should be less
than the standards
we have
in civil cases.”
applied
(371
concluded as follows
Galloway opinion
676):
A.2d at
í “Moreover,
what
here would be to
*11
accept
to
occurred
different, harsher,
in
create
standards
criminal cases than in
civil
unwilling
protection
cases. We are
to afford less
defendant,
jury
rights
very liberty,
trial
of a criminal
whose
life,
stake,
or her
a civil litigant,
even his
at
than to
where, generally,
money
it is
that is at stake.”
It
this
that the
in
against
background
Court
Taha held
in
invalid the inconsistent
verdicts
a civil action. More-
over,
recognized
similarity
Taha
between inconsistent
verdicts in criminal
in civil
jury trials
inconsistent verdicts
for the
in
Judge Battaglia
quoted
trials.
Court
Taha
in
given
tolerating
reasons'
an earlier criminal case for
incon-
(Shell State,
54,
supra,
sistent
verdicts
Consequently, as to the difference
holding
between
Taha
cases,
in civil
and the
holdings
cases
earlier
criminal
(378
Taha
left the
opinion expressly
question open, saying
8):
8,
at 488 n.
“We another the issue of whether this Court should reconsider its decision criminal matters which inconsistent verdicts have been rendered.” Today day” is the this Court reconsider “[]other in criminal matter trials.
B. mentioned, the Maryland principles gov As earlier inconsistent verdicts are neither reflected in statutes erning Instead, promulgated by nor the Rules this Court. those have, law, case time principles by developed from time to “[bjecause Nevertheless, part of common law. of the Maryland law, dynamism consistently inherent of the common we have subject judicial light held that it is modification [new] 328, circumstances,” 331, Ireland v. 310 Md. 529 A.2d (1987). 365, out, often Court has pointed “[A]s authority under the change Constitution Caldor, 267, common Bowden v. 350 Md. 710 A.2d law.” also, Mayor City See & Council Baltimore e.g., (2008) (This Clark, 404 Md. 944 A.2d “Court law”); change the common certainly authority has (2007) Owens v. (“ ‘The may, common law rule within constitutional con- straints, changed judicial or modified ... decision where vestige longer it is found to be a no suitable to past, ” circumstances,’ [present] quoting Jones v. (1985)); Wills, 337 n. 1069 n. 10 Fox v. *12 620, 635, Slater, 726, (2006); 390 Md. 890 A.2d Davis v. 599, 614, 78, (2004); Md. A.2d 86-87 Baltimore Sun v. Baltimore, 662, 653, 1130, (2000); 359 Md. 755 A.2d Zenobia, 469-470, 420, Owens-Illinois v. 601 A.2d 633, (1992), 657-658 and cases cited. there exceptions
The numerous principle tolerating incon- verdicts, and, importantly, sistent more the recent in opinions Taha, Management supra, Southern v. 378 Md. 836 A.2d State, and v. Galloway supra, fully are circumstances which in prospective change warrant law applicable common to inconsistent verdicts. There is longer any justification no for remaining the one situation tolerated, where inconsistent verdicts are namely types certain of inconsistent by jury a criminal trial. Contin- situation, verdicts, in that one of inconsistent acceptance
ued not reasonable. simply jury inconsistent consistently stated that has
This Court
law,”
that the trial court should
“contrary to
verdicts are
verdicts.
return inconsistent
that it cannot
jury
instruct
671;
407-408,
State,
One of the cases in the Maryland Reports earliest involved Abing right ejectment. to a trial a civil action ton Lowry, right H. & McH. 8 The to a trial in civil cases is separate provisions dealt with six See Articles Maryland Constitution. and 23 of the Maryland 40A, III, 40B, §§ Declaration of Rights, and Article Roads, 40C, Bryan See also v. State of the Constitution. 4, 10-15, 1057, 1060-1063 (1999). sum, in a civil action at law has an historic and singular justice role our system which is similar to the dikasts, sometimes, trials, thousand, important hundred hundred, fifteen or even two thousand members.” explains, 5. Bloomstein at 16-17: by inapplicable, "In cases where trial impracticable, combat was were, customary, first, by clergy, or interdicted cases that generally importance, neighborhood inferior men of the
where the offense was surmised to have gath- been committed were inquest. ered in an supposed Those who were selected were to have friends, knowledge of the Significantly, today, facts of the matter. as enemies, and near relations of the accused were excluded. quasi-jurors recognitors. recognitor "These sys- were called tem soon recognitors came to be used in civil cases as well. The number, generally multiple were twelve in or some thereof. II, “During reign Henry by jury trial became somewhat general, primarily involving in actions land and related matters. The persons possession impugned whose of land was or the defendant in possession a matter related to such could make a choice between trial recognitors. battle or a trial before twelve recognitions system by jury "Out these arose entire of trial jurors, we recognitors, know it. The were at first witnesses of the I, reign persons fact. In the of Edward additional were added to the jury. Slowly, jurors having knowledge separated were from the witnesses, jurors leaving other and became the the decision in the having knowledge hands of those not develop- of the facts. This latter III, began reign ment in of Edward about A.D. 1350.” *14 26 in case. Fur- singular jury role of a a criminal
historic thermore, the in pointed Manage- out Court Southern 642, Taha, 487, A.2d at an ment v. 378 Md. 836 supra, jury product in a civil case be the may inconsistent verdict unanimity, mistake or to reach lenity, compromise a jury as an verdict in a criminal case.6 same extent inconsistent fact, in case relates jury’s lenity reliance on a criminal case, defendant; in a civil be the any party to the beneficiary lenity. Despite acknowledgment in jury inconsistent verdicts criminal tolerating reasons in applicable jury also to inconsistent verdicts civil cases are cases, in jury the Court in Taha held that inconsistent verdicts If cases would allowed. traditional reasons for civil not be in verdicts are sufficient civil tolerating jury inconsistent cases, clearly in criminal those reasons are not sufficient cases.7 case, case, jury "[t]he
6.
In a civil
like a criminal
verdict of
shall be
parties
agree. Maryland
unless
otherwise
Rule 2-
unanimous”
522(b).
558,
571,
228,
561-562,
McKay,
See State
280 Md.
375 A.2d
v.
230-231,
(1977) (“The
jury
ancestry
its
235
unanimous
verdict traces
* * *
Ages.
By
Century,
the Middle
the 18th
the unanimous verdict
jury”).
law
established
as a basic attribute of the common
had
itself
631, 635,
Attorney
Bailey,
Commission
See also
Grievance
v.
(1979).
1264
opinion,
7. The Taha
This Court has sometimes majority observed that jurisdictions allow inconsistent verdicts criminal cases. See, State, e.g., 46, 54, 358, Shell v. 512 A.2d (1986); 546, 553, 81, Ford v. 337 A.2d 85-86 is, however, It very doubtful majority that a law, jurisdictions, by case recognize all of the exceptions and limitations to the allowance of inconsistent verdicts which are in Maryland reflected appellate opinions. For example, many jurisdictions allowing inconsistent verdicts in criminal also, trials cases, to contrary allow inconsistent verdicts nonjury criminal trials.8 A distinction civil between Moreover, critical element of the firearm offense. the State acknowl- edged inconsistency appeal. both in the trial court and on Conse- quently, explore we need at not this time other circumstances where apparently may may inconsistent verdicts or not be reconcilable. See, 704, e.g., (6th 8. Chilingirian, United States v. 280 F.3d Cir. 2002) ("[IJnconsistent by judge provide greater verdicts rendered no grounds for reversal jury”); than inconsistent verdicts rendered (11th Cir.1995); Wright, United States v. 63 F.3d 1073-1074 West, (8th 1977); Garza, United States v. 549 F.2d Cir. State v. (1999); 196 Ariz. Haynesworth 994 P.2d v. United States, (D.C.1984); People McCoy, 207 Ill.2d verdicts, may cases, to inconsistent regard criminal rules.9 statutes or upon be based jurisdictions
in some 599- supra, 300 Md. at Mack addition, holding leaving acceptance apparently discre- in the unbridled jury verdicts of inconsistent rejection unique. seems to be judge, of the trial tion inconsis- to allow have refused Courts Supreme Some State reasoning The cases. in criminal tent in DeSacia v. 469 P.2d of Alaska Court Supreme there is (Alaska 1970), explained The court is persuasive. 377) (469 P.2d at verdicts are the ...
“no basis to assume the accused treating toward disposition a jury’s product that, assuming can we see basis leniently; nor trials in criminal jury verdicts allowing an occasional conviction stand, ‘the risk that we run truth is compromise.’ result of have been the know, any way we have nor do that we do simply are attributable inconsistent verdicts many how telling or, matter, for that leniency, compromise, feelings of jury.” part on the outright confusion *16 possibility has held that “the of Florida Supreme Court for allow- outweighs ... the rationale conviction wrongful of a State, 959 Brown v. verdicts to stand.” ing [inconsistent] (Fla.2007). addition, Appeals 218, In Court 222 So.2d ... in those “will reversed that a conviction be New York held charged crime as on one acquittal where instances crime, as necessary element of the other as to a is conclusive People verdict was rendered.” guilty which the charged, for 269, (2003); 551, 357, Pennsylvania 272 v. N.E.2d 278 Ill.Dec. 799 244, 265, (2005). Magliocco, Pa. See, 49(b)(4) This of Civil Procedure. e.g., of the Federal Rules 9. Rule Taha, Management v. was discussed in Southern Rule (2003), no pointed we out that "there is where A.2d 49(b) is also no Rules.” There counterpart to FRCP in the Procedure. counterpart the Federal Rules of Criminal Tucker, 55 N.Y.2d 447 N.Y.S.2d 431 N.E.2d Taha, 378 Md. at Management supra, Southern 643, we inconsistent striking jury’s 836 A.2d at held that sound liability only logical legally verdict of civil was “the and ” jury’s conclusion.... This Court has also characterized a which with the guilty, flatly jury’s verdict of inconsistent count, verdict of not “illogical” another “contrary reversing to law.” There is no reasonable basis for verdict “liability” reversing but not of “guilty.” inconsistent verdict case,
Accordingly,
regard
similarly
the instant
situ-
ated cases on direct
where
issue
appeal
preserved,
in criminal jury
trials rendered after the date of
case,
opinion
our
longer
verdicts shall no
allowed. For
be
a discussion and review of the effective date
law,
Zenobia,
changes
the common
see Owens-Illinois v.
469-470,
supra,
III. that, agree Special We with the Court of Appeals Article, § under 5-905 of the Criminal Law Price’s enhanced sentences must regard drug be vacated. With to Price’s pos session which subject sentences are to enhancement under 5-905, § may one of them be doubled under the statute. 5-905(a) provides
Section that a “person convicted of a subsequent subject crime” is imprison- “twice” the term of 5-905(d) authorized,” ment which is § “otherwise states single sentence on a count “[a] under this section imposed conjunction with other sentences under this title.” added). (Emphasis argues The State plain language “the of the permitted statute” the trial court’s doubling (State’s sentences on all three possession counts. opening 16). brief at The defendant Price contends that the General *17 (d) Assembly, 5-905, §of subsection ... “chose mandate a sentence on a single imposed count could be under 5-905(d) (Defendant’s § in conjunction with other sentences.” 10). argues the defendant Alternatively, at
reply brief application ruled that correctly Special Appeals “Court that Mr. Price the conclusion lenity compelled of the rule of § 5-905.” enhancement under subject single to a sentence (Id. 14). at focus- argument of the statute” “plain language
The State’s (a) 5-905, § Price was convicted es on subsection counts, with separate under three subsequent drug crimes authorized, term of and with each sentences separate three doubled. Neverthe- subject being imprisonment arguably (a) address less, multiple does not of subsection language In incident. and based on the same together charged crimes not take addition, argument does “plain language” the State’s (d) §of 5-905. into account subsection con- often, in certain unambiguous statute Very See, BAA v. e.g., in other contexts. ambiguous texts but (2007); 136, 151, Bank Acacia, 929 A.2d 9-10 400 Md. (2003) (“As Stine, 379 Md. America v. however, may ... exist ambiguity recognized, ‘[a]n we have ... clear. That occurs of the statute are even when the words ” clear,’ quoting situation is not application given when its D.G.S., Industries v. Blind
(2002)).
Thus,
just
if
convicted of
one
Price had been
counts,
have,
au-
unambiguously,
§ 5-905 would
possession
that count. What
doubling of his sentence under
thorized the
under the circum-
applies
clear is how the enhancement
is not
briefs,
State,
elsewhere
its
this case.
fact
stances of
acknowledging
degree
ambiguity,
recognize
seems to
explicitly
not
and
address
Legislature
anticipate
that “the
did
33)
(State’s opening brief at
pattern”
fact
here
particular
[the]
explic-
Assembly
anticipate,
that the
“did
General
(id.
40-41;
address,
... makes”
that Price
itly
argument
5).
17;
brief at
reply
see also id. at
State’s
relies on Whack v.
principally
The State
(1995),
2000 of
year
on the enactment
Court allowed the enhancements Whack because different statutes in “different applied enhancement case. ways.” present That is not the situation supra, In Scott v. § whether former 293 and a second en-
Court considered
statute,
286(f)(3),
§
Article
could each
hancement
former
*19
apply
single
to a conviction on a
count. Gardner v. State
§
of
and
parallel
considered
issue
whether former
286(c)
§
a single
former
could each enhance a sentence on
ambiguous
count. Both Scott and Gardner held that it was
Legislature
application
whether the
had intended the
of two
to
separate highly penal
single
enhancement statutes
count.
Court, therefore, applied
lenity.
This
the rule of
Scott v.
295;
677,
§ of the Criminal Law Article. The of Department Legislative “Analysis” Services’ “Fiscal Note” and with re- spect p. to Bill at that the Bill was explained Senate intended found rectify problem by to Court Gardner State, namely that “the application these statutes enhancing single ambiguous.” count of a violation is (id. 1-2): Department Legislative pp. Services continued at “This bill clarifies that intent the en- clearly applying 293(b)(3) hanced the Article penalty under Section ” any controlled dangerous substance offense.... Gardner, “In in reversing a related Court of Special Appeals opinion, Appeals single the Court of held that a count not under may be enhanced both sections of Article 27.”
A of the House Report Judiciary concerning Committee Sen- similarly ate Bill 345 Bill purpose stated that the was to “apply[ penalty any § the enhanced ] under Article dangerous controlled substance offense” bill “[t]his 27, § Article under that a sentence provides ”12 sentences.... with other conjunction imposed § 5- history legislative language, statutory Like the “count” single or a 905(d) of one “offense” in terms reads Law Article. Criminal § 5-905 of the “under” being enhanced the Gener- 5-905(d)’s history discloses legislative §in Nothing each one of apply § 5-905 should Assembly’s intent that al present In the same incident. based on the multiple counts offense single to a case, being applied § 5-905 is Neither the another enhancement statute. conjunction with (d) history of subsection legislative statutory language nor now the situation §of 5-905 to the application addresses the Court. before § 5-905 of Special Appeals agree with the Court
We Article, to the circumstances applied Law the Criminal case, penalty, “If is doubt as there ambiguous. must be construed punishment then the law directs that [the] harsher one.” Gardner over a penalty to favor a milder State, 393 614. Chow v. 689 A.2d at See (“an (2006) penalty enhanced regarding exists penal____When doubt highly statute *20 statute, lenity rule of instructs a imposed by punishment ... criminal statute so as interpret a court not a that individual when such places that it on an penalty increase the guess no more can be based on interpretation an than reports interesting discrepancy between the two ex- 12. There is one Analysis by legislative The plaining Bill of the 2000 session. Senate penalty Department Legislative that enhanced Services states dangerous does not applies any substance offense that "to controlled " added). (emphasis mandatory sentence The provide minimum Report interpreted language to judiciary the Bill's House Committee's apply] § penalty [will that “the enhanced under Article mean offense, dangerous including any a sentence controlled substance added). (Emphasis mandatory There imposes minimum sentence." process, language, during legislative change was no in the Bill's mandatory applied explain interpretations as to a would the different language was identi- of the Bill when enacted minimum sentence. discrepan- language This of the Bill when it was introduced. cal ambiguity degree cy might conclusion that there is reinforce the § applications of of the Criminal Law with some 5-905 associated Article. State, intended,” Melton v. legislature] quoting [the what (2004)). 471, 489, Melgar See also v. 842 A.2d 339, 347, (1999); Webster 355 Md. 734 A.2d 716-717 465, 481, (2000); McGrath THE
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED THAT TO COURT WITH DIRECTIONS TO REVERSE THE A CONVICTION FOR POSSESSION OF FIREARM, AND IN DURING RELATION ATO 'DRUG CRIME, TRAFFICKING UNDER SUFFICIENT CIRCUM- A STANCES TO CONSTITUTE NEXUS THE TO DRUG CRIME, AND TRAFFICKING WITH FURTHER DI- RECTIONS THE THE TO VACATE SENTENCES ON THREE POSSESSION COUNTS AND REMAND THE CASE TO THE CIRCUIT COURT FOR RESENTENCING ON THE POSSESSION IN COUNTS ACCORDANCE WITH OPINION. IN AND THIS COSTS THIS COURT IN THE OF BE PAID COURT SPECIAL APPEALS TO BY THE MAYOR AND CITY COUNCIL OF BALTIMORE CITY.
HARRELL, J., files a concurring opinion which BATTAGLIA, J., joins WILNER, generally and ALAN M. J. (Retired, joins in Specially Assigned), only. Part C HARRELL,
Concurring Opinion by Judge, joined by BATTAGLIA, Judge generally Judge WILNER as to only. Part C
I
concur
judgment
Majority regarding inconsis-
tent verdicts in criminal actions. The accreted
hodgepodge
exceptions1 Maryland’s
traditional
toleration
*21
example,
1. For
two inconsistent convictions cannot stand.
v.
Heinze
(1945). Maryland
permit
184 Md.
A. Inconsistency Legal Distinguish Factual From the minori- undoubtedly joining The while Majority opinion, verdicts, pene- does not of states inconsistent ty prohibit I think wilderness.2 it further into the jurisprudential trate holding Majority’s applies that the important explicitly to note verdicts, “factually inconsis- only to inconsistent” “legally recognize factu- The Court should continue to tent” verdicts. juries in “logically” inconsistent verdicts rendered ally criminal cases.
A
inconsistent verdict
one where
renders
factually
elements when
“different verdicts
crimes
distinct
trial, which
given
at a
makes
proof
there was
one set
Smith, Comment,
verdict
Ashlee
Vice-AVerdict:
illogical.”
Not Stand in
Legally
Jury
Inconsistent
Verdicts Should
(2006).
395, 397
Maryland, 35 U.Balt. L.Rev.
n.
verdict
distinguishing
factually
feature
inconsistent
from a
factually
legally inconsistent verdict
is that
contrast,
merely illogical.
legally
By
verdict
trial
contrary
judge’s
where a
acts
to a
verdict occurs
the law. The
regarding
instructions
difference be-
proper
general
permitted in
that inconsistent verdicts are
criminal
rule
espoused
tween the two is best illustrated from examples jurisdictions. other
Assume a legally intoxicated or otherwise reckless driver
collision,
impact
causes a head-on
the
killing
driver and
passenger of the other car. The intoxicated driver
charged
with two counts of vehicular
The jury
homicide.
convicts the
defendant of vehicular
the death of
homicide as to
the driver
car,
of the other
finds the
not guilty
but
defendant
of the same
crime
to the
regard
passenger.
with
death of the
a
Such
result
factually
would constitute
inconsistent verdicts.3
Florida,
join today
3. Both Alaska and
states that we
in the national
minority,
hypothetical
situations
addressed
similar to the
dis-
scenario
(Alaska 1970);
v.
cussed above. DeSacia
A occurs when one as to an element which is neces- charge on conclusive charge inherent on which conviction has sary a ” Repugnant Wax, Inconsistent and Stephen T. occurred.... Trials, Verdicts in Criminal N.Y.L. L. Sch. Rev. of Similarly, Supreme Court Rhode Island stated “if of the essential elements of which the count[s] acquitted necessary prove
defendant is are identical and convicted, of which the then the count defendant verdicts (R.I. Arroyo, are inconsistent.” State 2004) (internal omitted). of quotation guilty crime “Verdicts of B, not of out guilty A but crime where both crimes arise facts, set of are when legally they same necessari- involve ly the conclusion the same essential element or elements of each crime were found both exist and not to (1957, Vol.) 445(d) Maryland Repl §§ Code Article 4. 449(e), (2003), § Maryland Safety at recodified Code Public 5-133. (2002), Law, Maryland § Code Criminal 5-621. 5. acquitted unlawfully wearing, carrying,
6. Price also was or trans- Law, (2002), handgun porting Code violation Criminal trial, presented Depending § 4-203. on the facts this also factually possession handgun his conviction for Nonetheless, drug trafficking. awith nexus to not such are 4-203(b) legally exceptions inconsistent. Section contains numerous prohibition wearing, carrying, transporting handgun. Frias, exist.” People Ill.2d 75 Ill.Dec. (1983).7 1233, 1235 N.E.2d
As Price’s acquittal established conclusively that he was not engaged in drug trafficking, the Majority opinion correctly concludes that the conviction for possession of a handgun while engaged drug trafficking may stand.
B.
Relationship
Consistency”
to the “Rule of
Conspiracy
Cases
Majority’s
opinion holding represents a return to ideo-
logical consistency regarding legally inconsistent
It
verdicts.
is important to note parallels between the application of this
newly announced rule and the “rule of consistency” applicable
in conspiracy
one person
cases. “As
alone cannot be
conspiracy, when all but one conspirator are acquitted, convic-
tion of the remaining conspirator cannot stand.” Hurwitz v.
*24
State,
578,
575,
200 Md.
581
This “rule of
trials____”
consistency does not
to
apply
separate
Gardner v.
State,
520, 528,
286
1317,
Md.
408
(1979);
A.2d
1322
accord
Johnson,
418, 430,
State v.
(2002)
367 Md.
628,
635
(“[T]hus, despite the acquittal of all of the respondent’s co-
conspirators
trial,
in a prior
the respondent’s conviction for
stand.”).
conspiracy must
There is no requirement
that the
try
State even
more
Gardner,
than one conspirator.
524-25,
at
As a parallel, the Majority’s opinion should not be read to require that the State charge even an underlying offense order Thus, to maintain “consistency.” Price could be convict- possessing ed of a handgun with a drug nexus to trafficking without being charged and tried for drug trafficking. appears 7. longer prohibits It legally Illinois no inconsistent ver dicts, Jones, light 122, People 45, of v. 207 Ill.2d 278 Ill.Dec. 797 (2003). Nonetheless, N.E.2d 640 legally the definition of a employed by Supreme verdict helpful. Court of Illinois remains
39 addition, legally consis- Majority requirement opinion’s to trials.8 only single apply tent verdicts should opinion today applies by Majority The rule announced If a jury. a acquittals by rendered only outright indictment, convicts on a of an but deadlocks on one count the aforementioned count is a offense of which compound Thus, element, one renders verdict. necessary is not an inconsistent compound the conviction on crime at equivalent mistrial is to no trial Maryland, verdict. “In a 1031, 285, 269, 401 Md. A.2d 1040 all.” Powers v. 285 (1979) A.2d v. 381 (citing Cook (1978)). agree, failure to which “Accordingly, jury’s 674 mistrial, any not facts” and in a does establish results Powers, inconsistency. 285 Md. at to establish an not be said Smith, 337 1040 A.2d (citing 401 A.2d at United States (Kern, J., has concurring)). “Once mistrial been at 503-04 declared, fact decided----” questions of remain all nonverdict, Cook, A.2d “A to be at at 674. Md. sure, opposing poles affirmatively establish one does 91 Md.App. set inconsistent verdicts.” Butler for a (1992), aff'd, A.2d A.2d (1994). “Moreover, focus counts logical upon it is Muller, Even who recommends harmless error review 8. Professor objection single jury, has no inconsistent verdicts rendered by separate juries. inconsistent verdicts rendered uncomfortable—especially penalty admittedly While in a death it is juries inconsistent conclusions on see two different reach case—to episode, same I don't believe that there’s evidence about the similar legal any jury’s any see kind in the second verdict. reason to error single jury logically single in a When reaches inconsistent verdicts case, that the has can be certain from the verdict itself we (in sense, least, following its of not instruc- somehow erred tions), [Muller, supra argument my 1] Harvard article note and the *25 something legal system ought to is do about inconsistent that the stand, (rather letting setting just as the in this than them convictions does). juries logically two reach inconsistent law now But when trials, separate supply those verdicts no evidence that verdicts in erring jury was "harsh- [the] either has erred—let alone that the er” one. Legal, http://www.isthatlegal.org/archives/2006/08/post_6.html Is That AM). (4 August 10:15 the rather upon where reached verdicts than counts representing establishing nothing.” no decision Ferrell v.
C. Challenging to be Procedure Followed at Inconsistent Verdicts Trial Majority properly The notes that “where the issue opinion ... no preserved” longer “inconsistent verdicts shall be 21. Majority slip op. allowed.” at Because of the “sea by the change” Majority’s opinion, prospec- announced some necessary tive highlight direction is desirable to the in order procedure required for a defendant to preserve challenge legally to appellate review inconsistent verdict. jury may legally render a inconsistent to show verdict Muller, 784; Comment, to lenity supra the defendant. at 28. supra The defendant should be foreclosed from jury’s lenity holding the as a accepting result the the Nevertheless, Majority opinion. permit we should not court, to accept jury’s defendant the trial to lenity seek windfall on appeal jury’s reversal that the arguing are inconsistent. a defendant must note Accordingly, objection her allegedly prior his or to inconsistent verdicts to becoming the verdicts final discharge jury. and the Otherwise, the is waived.9 claim “If defendant claims that a self-destructive, to the point being verdict he must that claim to the circuit court present before not, if discharged; he he does waives claim.” State v. Flemons, 881 (Mo.Ct.App.2004); S.W.3d see also fact, quite optimal 9. often a defendant's choice will be to remain silent, waiving challenge thus his inconsistent verdicts and defendant, may accepting the conviction that be inconsistent. A aware guilt, guilt, or overwhelming of his her or the evidence all of the charged, may accept of which he she crimes stands choose jury’s lenity. may accept A defendant wise the inconsistent sentence, accompanying gift conviction rather than look a horse in verdicts, objects the mouth. If the defendant chance, jury, given remedy a second choose to error in a not in manner the defendant's favor.
41 (“Defense Pelz, 565 (Mo.Ct.App.1992) State v. S.W.2d of the error and perusal the court’s during stood silent counsel verdict. This acceptance the positive prosecutor’s the verdict, any the waived silence, acceptance as an operating 745, 452 review....”); v. Satloff, 56 N.Y.2d People further (1982) (mem.) (“Follow- 12, 13, 437 N.E.2d N.Y.S.2d for complained, the jury, defense counsel ing discharge the point, it time, inconsistency. At this first of the asserted defect, any, by the if resubmis- remedy no to longer possible Such a of its verdicts. jury sion to the for reconsideration discharge the of the registered prior must be protest court.” the issue for review preserve properly (citation omitted)). or polling
“A has not been followed either verdict that recorded, and hearkening, properly has not been rendered A.2d Md.App. v. nullity.” is a Jones (2007). for a “It of a demand poll is the absence ver- the recordation of a hearkening required proper is for 151, 160 dict.” Jones (2005). jury polled,
In of a demand to have the proper the absence of the verdict hearkening ensuing acceptance finally the But, the jury’s the matter from consideration. removes hearkening, duly if a demand for a is made despite poll thereafter, poll it acceptance upon is the of the verdict province jury. that removes the from verdict words, until it other has control the verdict a poll, Absent a demand for the verdict becomes final final. is de- upon acceptance poll its when hearkened. When manded, acceptance its upon verdict becomes final poll. after the 168, 472 A.2d
Smith inconsis- Upon timely objection by legally the defendant10to verdicts, instruct or re-instruct the tent the trial court should against legally verdicts is intended to 10. Because rule defendant, protect object to the inconsis- the criminal State belongs only option tent verdicts. The defendant. on need consistency range permissible jurors The verdicts. then should be permitted resume free inconsistency deliberation. to resolve the by returning favor, either in the convicting verdict defendant’s counts, on the implicated deadlocking charge so that *27 no finding inconsistent results. “Until the announcement that recorded, the verdict has been the jury right has to amend verdict; or change any it and when is so amended it is real jury verdict of and it be properly accepted by the court.” Heinze A.2d (1945).11 sum,
In a defendant note objection must his to the inconsis- tent verdict while the remedy trial court has an opportunity ie., error, before the verdict is final discharged. Failure to do so constitutes waiver.
Judge represent BATTAGLIA authorizes me to that she joins concurring opinion generally. Judge WILNER authorizes me to represent joins he in Part C of this concurrence. jeopardy consequence
11. There is
permitting
no double
the trial
court, upon
request,
permit
defendant’s
to re-instruct
it
knowingly
affirmatively
return to deliberations. The defendant
any challenge
jury’s
waives
of the
reconsideration
by objecting
they
to the inconsistent verdicts before
become
final.
objects,
Even if
issue is not waived when the defendant
jeopardy prohibition only "prevents
double
further
an
deliberation on
Muller,
acquittal
829;
supra
after that
verdict
final.”
see
Peters,
(Mo.
(en
1993)
banc) ("We
State v.
855 S.W.2d
347-48
hold
attempted
the first two verdicts the
were
return
assault,
guilty
because if the defendant was not
he cannot be
armed criminal action
properly
based on assault. The
acted
court
sending
the matter back to the
for further
consideration.
addition,
subject
we hold that the
action
court did not
Peters
jeopardy.”)
double
notes
verdicts,
accepting
associated
difficulties
particular
analysis
Mary-
adopted
from that
case should not be
land.
Instead, Maryland should
safely
"majority
remain
in the
minority”
prohibit
legally
of states
inconsistent verdicts while
permitting logically
factually
nonetheless
Thus,
inconsistent verdicts.
Tucker,
join New
(People
we would
York
v.
55 N.Y.2d
447
(Naumowicz,
(1981)),
N.Y.S.2d
710),
N.E.2d
Florida
562 So.2d
(State
Flemons,
Missouri
(Mo.Ct.App.2004))
S.W.3d 877
(State
(R.I.2004))
Arroyo,
declining
Rhode Island