Ford v. State

337 A.2d 81, 274 Md. 546, 1975 Md. LEXIS 1227

• Court: Court of Appeals of Maryland
• Decided: April 17, 1975
• Docket: [No. 94, September Term, 1974.]
• Status: Published

Opinions

Digges, J.,

delivered the opinion of the Court. Eldridge and O’Donnell, JJ., dissent and O’Donnell, J., filed a dissenting opinion in which Eldridge, J., concurs at page 556 infra.

Following affirmance by the Court of Special Appeals of the petitioner’s conviction in the Criminal Court of Baltimore for using “a handgun in the commission of a crime,” this Court granted certiorari to examine the contention of the petitioner, Leon Stephen Ford, that his conviction by the jury should be set aside because “it is [so] inconsistent, repugnant or absurd ... as to be void and meaningless.” Since in our view this issue must be resolved in a manner adverse to Ford’s position, we will uphold the jury’s verdict and affirm the judgment.

At the trial of this criminal cause the State primarily presented its case from the lips of the complaining witness, Robert Shaw. Shaw, a part-time taxi driver in Baltimore City for the Diamond Cab Company, testified that at about 2:00 a.m. in the early morning of December 23, 1972, Ford and the co-defendant, Bobby Wilson,¹ hailed his cab, seated themselves in the rear, and asked to be driven to the 2000 block of Edmondson Avenue. Shortly before they arrived at that destination, Ford reached over the back of the front seat and, while poking a pistol in Shaw’s ribs, demanded his money. The driver immediately brought the taxi to a standstill but allowed the motor to continue to run while both “guests” jumped from the cab. Wilson then instantly pulled open the right front door, flashed a pistol and also demanded that Shaw hand over his money. The cab driver further testified that, although he promptly complied with his assailants’ commands by emptying the entire contents ($36.40) of his change bag into Wilson’s hand, he so feared being shot by the two bandits that he stepped on the accelerator and thus managed to speed away without being further victimized. Immediately following his escape, Shaw, using his cab radio, contacted the police, who in turn responded with such quickness that they were able to apprehend both Ford and Wilson and seize their handgun as they were entering another cab.

In defending himself Ford does not deny being a passenger in Shaw’s vehicle, but claims that he was not involved in the robbery. His version of the happening is that while riding as a passenger in the taxi toward his destination, his companion, Wilson, began to play with a handgun, which impelled Ford to ask the cab driver to stop and let him out. However, Ford continues, after he emerged from the taxi but before he could dutifully pay for his trip, Shaw drove off.

These divergent versions of what occurred during those pre-dawn hours, as well as other evidence, were presented at the jury trial, with Judge Robert Watts presiding, in May of 1973. Under consideration at that trial was the disposition of an eight count indictment, which charged both Ford and Wilson with:

Count No. Charge

1. Robbery with a dangerous and deadly weapon.

Count No. Charge

2. Attempted robbery with a dangerous and deadly weapon.

3. Robbery.

4. Assault with intent to rob.

o. Assault.

6. Larceny.

7. Receiving stolen goods.

8. Use of a handgun in the commission of a crime of violence.

After all the evidence was presented, Judge Watts granted the defendants’ motions for judgment of acquittal on counts 2, 4, 6, and 7, and, after denying these motions as they related to the other four counts, submitted the remaining charges to the jury for its consideration. Following deliberation, the jury, through its forelady, announced that it found the defendants to be guilty of the charge made in count 8 but not guilty of the charges contained in counts 1, 3 and 5. Count 8 accuses the defendants with unlawfully using “a handgun in the commission of a crime of violence,” in violation of Maryland Code (1957,1971 Repl. Vol., 1974 Cum. Supp.) Art. 27, § 36B (d) which provides:

“ (d) Unlawful use of handgun in commission of crime. —

Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article,² shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

The petitioner, Ford, proposes two arguments to support his contention that it is “inconsistent, repugnant, or absurd” and therefore illegal for the jury to have convicted him of using “a handgun in the commission of [a felony or] a crime of violence,” while at the same time finding that he did not commit either a felony or a crime of violence. The first assertion is that a conviction under Art. 27, § 36B (d) is itself only viable when appended to a guilty verdict for one of the other designated criminal acts. Specifically, the petitioner focuses on the language of the statute which says that an individual who is guilty of the section 36B (d) offense shall be sentenced for its violation “in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor [(crime of violence)],” and then from this Ford claims that, under the statute, no sentence can be imposed, and therefore no separate section 36B (d) guilty verdict can stand, unless it is in conjunction with a felony or crime of violence conviction. The follow-up argument is that the acquittal of the charges contained in the first seven counts completely undermines and negates the existence of one of the elements (i.e., commission of a felony or a crime of violence) necessary to find him guilty under the eighth count, as there would thus remain “evidence not sufficient to support the conviction of ‘unlawful use of a handgun in the commission of a felony [or crime of violence].’ ”

We agree with the petitioner that section 36B (d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either.³ Nevertheless, in answering the petitioner’s first contention, we think it to be plain from the language of section 36B (d) that the offense delineated in that statute is separate and distinct from the felony or crime of violence during the commission of which the handgun was used. Since this is so, an individual on trial for the handgun charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in section 36B (d). And, when the trier of fact considers an indictment containing both a section 36B (d) handgun count and a felony or crime of violence count, a conviction on the former can still be sustained even if the trier of fact returns a finding of not guilty on the latter — in fact a finding of guilt under both, since they are not inconsistent, can each stand. A logical corollary then of each of these statements is that when section 36B (d) dictates that any person who is guilty of the handgun offense shall be sentenced “in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor,” it directs that irrespective of the number of years, if any, the defendant receives for the “said felony or misdemeanor,” the court must impose a penalty, within the limitations for confinement contained in the statute, for the independent handgun offense.

In answering Ford’s second contention it is only necessary for us to emphasize that this “hobgoblin” of what appears to be jury verdict inconsistency,⁴ which haunts the petitioner in this case, has long been exorcised not only by this Court but also by many other courts across this nation. See Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d (1968). In this Court the question of verdict inconsistency has been considered in several cases, and has been consistently rejected as forming the basis for voiding a conviction. For instance, in Leet v. State, 203 Md. 285, 293, 100 A. 2d 789 (1953), Chief Judge Sobeloff, in speaking for this Court, repudiated the assertion that jury verdicts must be consistent, by saying:

“While it is true that a finding of guilt on two inconsistent counts will be declared invalid in Maryland, Heinze v. State, 184 Md. 613, 617, 42 A. 2d 128, 130, it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count.”

And again, just one year later, Chief Judge Sobeloff reiterated this same proposition when,. in speaking for this Court in Williams v. State, 204 Md. 55, 64, 102 A. 2d 714 (1954), he opined:

“Each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts.”

See also the opinions of Chief Judge Hammond in Ledbetter v. State, 224 Md. 271, 273-74, 167 A. 2d 596 (1961) and Judge Oppenheimer in Johnson, Etc. v. State, 238 Md. 528, 540-46, 209 A. 2d 765 (1965), where they, for the Court, relying principally on the Leet and Williams cases, concluded that a conviction on one count need not be vacated because of an inconsistent not guilty verdict on another count. This same tenet was adopted by the United States Supreme Court in Dunn v. United States, 284 U. S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932), where Mr. Justice Holmes, in speaking for that Court, said:

“Consistency in the verdict is not necessary....

“That the verdict may have been the result of compromise, or of a mistake on the part of the jury,, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.”

See also United States v. Dotterweich, 320 U. S. 277, 279, 64 S. Ct. 134, 88 L. Ed. 48 (1943) (opinion by Mr. Justice Frankfurter). The decisions of this Court and the United States Supreme Court are not out, of step with those- of other courts as this reluctance to interfere with the results, of. unknown jury interplay has. been expressly shared! by all of the federal Circuit. Courts of Appeal, see cases cited in United States v. Fox, 433 F. 2d 1235, 1238, n. 21 (D.C. Cir. 1970); see also United States v. Maybury, 274 F. 2d 899, 902-03 (2d Cir. 1960) (opinion by Judge Henry Friendly); Steckler v. United States, 7 F. 2d 59, 60 (2d Cir. 1925) (opinion by Judge Learned Hand), as well as. by the courts, of most of our sister states, 18 A.L.R.3d 259 (1968). See generally, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649 (1953). Therefore,, based-on this near unanimous, authority,, it. is; clear that the- mere-assertion, without, proof of actual irregularity;, that the petitioner’s conviction should be reversed because the-jury’s verdicts,, pertaining- to this, multicount indictment,, of guilty on. one- count and not guilty on the other, counts,, were inconsistent, cannot be embraced by this Court as sufficient reason to vitiate-Ford’s, conviction.

The only proof which the petitioner can muster- tending, even, remotely,, to- establish, actual irregularity,, is. the disclosure at a bench, conference participated in principally by theforelady of the-jury and the trial, judge, but.alsoin the presence- of the- defense- attorneys;, Carl Brockman and- Lewis Bainder,. and; the Assistant State’s, Attorney,. Charles Kountz,, which, took, place- immediately after- the jury’s verdict was. announced and recorded by the-court clerk. That colloquy went, as-follows:

“The-Court: You found him guilty, of the eighth; which says.used’the-gun in the- commission of a felony, but you say he wasn’t guilty of the crime.

The Forelady: They thought that was him having a gun on his person.

The Court: They just found them guilty of hand-gun, both of them?

The Forelady: Uh-huh.

The Court: ... You say no felony is committed, then he can’t be guilty.

The Forelady: I understand that, but they thought it was just —

The Court [After paraphrasing the statute] : So, if you found him not guilty of robbery, you couldn’t have found him guilty.

The Forelady: Right.

The Court: They were trying — I think it’s obvious they were trying to find them guilty of just carrying a weapon.

The Forelady: Yes.

The Court: But no crime other than carrying that gun.

The Forelady: Right.

* * *

The Court: His position is that they must be guilty of the felony as they found him guilty of this. You can argue that way. You have only got the foreman. You haven’t got all the jurors. You don’t know what has gone on.

Mr. Brockman [ (Attorney for Wilson)]: She’s told the consensus.

That’s what they discussed upstairs — that just because he had a gun, they don’t think he did anything else but. The Forelady:

Just carrying a gun? The Court:

Uh-huh. The Forelady:

All right. Excuse the jury. I think that’s all we can do with that. The Court:

Members of the jury, you are excused from further service of this trial. Tomorrow morning report back to your respective Courtrooms.” The Clerk:

It is Ford’s contention that this dialogue demonstrates that the jury, though convicting him of using a handgun in the commission of a crime (count 8), really did not believe him to be guilty of that offense, but instead utilized this count of the indictment as a medium through which to transmit its belief that Ford was merely guilty of unlawfully carrying a firearm in violation of Art. 27, § 36B (b), a crime with which he was not charged. It is our clear opinion, however, that this colloquy only lends credence to the petitioner’s contention as it relates to one juror, the forelady, inasmuch as this discourse, not made known to or adopted by the other eleven jurors, took place at a bench conference, out of the hearing of the remaining members of that jury body, after the verdict finding the defendants only guilty of the charge contained in count 8, had been announced by the forelady, assented to by each juror when individually polled, harkened to by the entire panel, and recorded by the court clerk.⁵ Occurring in this manner, the forelady’s statements, in effect, constituted an unwitting effort by one juror to impeach the jury’s verdict, a procedure which is impermissible in this State as it is ‘‘Veil settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake.” Wiliams v. State, supra at 67. The reasons for this rule were stated by our predecessors long ago in Brinsfield v. Howeth, 110 Md. 520, 530, 73 A. 289 (1909), where it is said:

'“Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room and ¡afford an opportunity for fraud and perjury. It would open ¡such ¡a door for tampering with weak ¡and indiscreet men that it would render all verdicts insecure,; and, therefore;, the law has wisely guarded against all ¡such testimony ¡and has considered it unworthy of ¡notice. It would be a most pernicious practice, and • in its consequences dangerous to this much valued mode of trial, to permit a verdict, openly and solemnly declared in the 'Court, to be 'subverted by going behind it and inquiring into the secrets of the jury room.” See also Christ v. Wempe, 219 Md. 627, 640-43, 150 A. 2d 918 (1959); Williams v. State, supra.

•Consequently, this ¡attempt by the petitioner to add wind to his ¡sails -must also fail.

Judgment efthe Court (of Special Appeals affirming the judgment <ef the Criminal Court ofBaUimore (affirmed.

1 . Wilson, whose conviction was also affirmed by the Court of Special Appeals, did not join Ford in seeking review by this Court.

2 . Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.) Art. 27, § 441 (e) reads as follows:

“The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.”

3 . The Attorney General, in representing the State, also suggests that üie verdicts might be viewed as not being inconsistent at all as the jury might have believed Ford to be guilty of the “felony or . . . crime of violence” of attempted armed robbery despite the granting of a motion for judgment of acquittal on that charge. The jury, however, was not at liberty to so conclude, and we will not impute such a stance to it.

4 . See Emerson, Essays: First Series, Self Reliance where it is said: “A foolish consistency is the hobgoblin of little minds . . . .”

5 . By saying this we do not indicate our view of the result in a case where a similar colloquy takes place in the actual hearing of all of the jurors, after which they adopt, individually or collectively, what the foreperson reveals, but before the jurors leave the jury box or courtroom. See Heinze v. State, 184 Md. 613, 617-21, 42 A. 2d 128 (1945).