Middleton v. State

545 A.2d 103, 76 Md. App. 402, 1988 Md. App. LEXIS 173, 1988 WL 85296

• Court: Court of Special Appeals of Maryland
• Decided: August 5, 1988
• Docket: No. 1488
• Status: Published

Opinions

GARRITY, Judge.

We shall examine the issue of whether the vacation of a guilty verdict as a predicate to an award of a new trial bars reconsideration, and ultimately reinstatement of the verdict, on the grounds of double jeopardy.

Factual Background

At 2:15 a.m. on July 9, 1986, the seventeen-year-old victim voluntarily accompanied Vincent C. Middleton (the appellant), after meeting him outside a bar, to his apartment located in Montgomery County. Once there, the victim helped the appellant fold his clothing and carry it into his bedroom where she began watching television. The appellant then left the room and returned clad only in his boxer shorts.

The prosecutrix testified that when she cautioned the appellant “not to get too comfortable,” and told him that she was “ready to go,” the appellant laid down on the bed and dragged her down on top of him. The appellant attempted, unsuccessfully, to remove the victim’s clothing. After the victim refused the appellant’s request to engage in sexual activity, the appellant withdrew a handgun from a duffle bag. The victim testified that the appellant forced her into a closet, closed its door and brandished a handgun in her face while threatening to use it if she did not submit. The young victim testified that she attempted to scream, but nothing came out. She subsequently submitted to the appellant and engaged in sexual activity, including vaginal intercourse. Upon being taken to the home of a friend, she called the police.

The appellant was charged with having committed first and second degree rape, first and second degree sexual offense, attempted first and second degree sexual offense, and of use of a handgun in the commission of a crime of violence. He was tried by a jury in the Circuit Court for Montgomery county (Weinstein, J., presiding). The jury convicted the appellant of first¹ and second degree rape and attempted first and second degree sexual offense, but acquitted him of first and second degree sexual offense, and use of a handgun in the commission of a crime of violence. The appellant moved for a new trial. One of the arguments he asserted in support of the motion was that his acquittal on the handgun charge “should have precluded the jury from finding guilt as to the first degree rape charge.”

When the matter came before the court for disposition and for hearing on the new trial motion, in addition to arguing the merits of the new trial motion, the appellant orally moved to strike the first degree rape guilty verdict. Once again, he relied upon the inconsistency of the jury’s findings as to the first degree rape and the handgun charge. After hearing from the State, apparently agreeing with the appellant’s argument, the court vacated the first degree rape verdict over the State’s objection, ruling:

All right. With respect to your Motion For a New Trial, that is denied.

With respect to your motion regarding the use of a handgun in the commission of the rape in this case, raising it from the second to first degree rape, I find that your point is well taken, and I grant your motion as to the first degree rape charge.

During a discussion that followed between the court and both counsel, defense counsel maintained that the court’s ruling was tantamount to a verdict of not guilty on the first degree rape charge. Although the trial judge, during the discussion, acknowledged that he had found the verdicts to be inconsistent,* ² he denied that his ruling was in effect a finding of not guilty as to first degree rape.³ He took the position that he had merely granted the appellant’s motion for new trial as to first degree rape. Agreeing with the appellant that he had vacated the verdict as to the first degree rape charge, the trial judge ultimately stated:

I do not find him not guilty. I find that the verdict was inconsistent vis-a-vis the 1st Degree Rape Charge. Your motion with respect to that is granted.⁴

The court having imposed sentence as to the remaining convicted counts, the appellant noted a timely appeal. Prior to the appellant’s noting of the appeal, however, the State filed a motion to reconsider the court’s ruling vacating the first degree rape verdict. While the appellant’s appeal was pending, the court held a hearing on the State’s motion, which it granted and then reinstated the conviction of first degree rape. The appellant was then sentenced on that charge and this appeal followed.⁵

Discussion of Law

The only issue presented on this appeal is whether, having vacated a jury’s guilty verdict on the grounds of inconsistency as a predicate to the award of a new trial, the trial court could ultimately, without offending the prohibition against double jeopardy, reinstate that verdict. For resolution of this issue, we look to the effect of the trial court’s actions and the decisions in Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974) and Block v. State, 286 Md. 266, 407 A.2d 320 (1979).⁶

In Pugh, the appellant had been charged in two indictments with violations of narcotics statutes. Indictment # 2110 charged him with possession of cocaine, and indictment # 2111 charged him with possession of cocaine with an intent to distribute. Pugh elected to be tried by the court instead of a jury. In rendering his verdict, the trial judge stated:

So, the verdict is guilty on the first count. Does anybody have the indictment? Guilty in 2110, and not guilty in 2111. I don’t think it’s in sufficient quantity.

Immediately subsequent to the pronouncement of “not guilty” as to indictment 2111, the following colloquy took place.

MR. IAMELE: 2111 would be the distribution charge. That’s what the State is pressing in this case.

THE COURT: I would be glad to hear from you.

MR. IAMELE: I believe that we have evidence, ample evidence of sale. That’s exactly what the State is going after. This man is a distributor of cocaine, and on the night of the 18th of February—

THE COURT: I see what you mean.

MR. IAMELE: —he made a sale.

THE COURT: I was thinking of it in a different way. So, the verdict is guilty of 2111, because it was an actual sale. What I was thinking of was the possession in quantity to indicate a distribution____

The trial court thereupon sentenced Pugh to 12 years imprisonment on the distribution charge. On appeal, the appellant claimed that the evidence was insufficient to convict him and that he had been twice placed in jeopardy.

Writing on behalf of the Court, Judge Eldridge stated: We agree with the argument in the State’s brief that where a judge “obviously inadvertently” says one thing when he means something else, and immediately thereafter corrects himself, a “verdict” would not be rendered for purposes of Rule 742 or the prohibition against double jeopardy. However, the trial judge’s initial statement of “not guilty” in this case was not “inadvertent” or a “slip of the tongue.” Instead it represented an intended decision based upon the judge’s view that the prosecution had failed to prove possession of cocaine in sufficient quantity as to indicate an intent to distribute. When the prosecution then argued that its case was grounded upon an actual sale, rather than an inference of distribution based on possession of the drug in sufficient quantity, the trial judge changed his mind. He decided that, in light of this theory of the prosecution, the evidence was sufficient to show distribution or an intent to distribute the drug.

Once a trial judge intentionally renders a verdict of “not guilty” on a criminal charge, the prohibition against double jeopardy does not permit him to change his mind.

Pugh v. State, 271 Md. at 707, 319 A.2d 542.

The Block case also dealt with a situation wherein a trial judge reversed his decision after having intentionally rendered a verdict of not guilty. At the conclusion of Block’s trial, the District Court judge rendered a verdict of guilty but deferred imposing sentence. Eleven days later, the defendant filed a motion requesting that the trial judge reconsider the verdict. The trial judge in open court stated that he had reconsidered the verdict in the defendant’s case, and he then rendered a verdict of not guilty. The following month, the prosecuting attorney filed a motion asking the judge to set aside the not guilty verdict and to reinstate the guilty verdict. Two months later, the trial judge struck his not guilty verdict, but instead of reinstating the prior guilty verdict, ordered that the defendant stand for a new trial. Eventually, the case, pursuant to a prayer for jury trial, was transferred to the Circuit Court for Montgomery County where Ms. Block filed a motion to bar the new trial on the ground of double jeopardy. After a hearing, the circuit court denied the motion and the Court of Appeals reviewed the case pursuant to a writ of certiorari.

Citing the Pugh decision, Judge Eldridge observed: [T]his court flatly held that when a trial judge “intentionally renders a verdict of 'not guilty,’ the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.” ... We pointed out in Pugh that from the earliest times, it has been settled that a verdict of not guilty “cannot be set aside. Any attempt to do so by the prosecutor is barred by what at common law was the plea of autrefois acquit." ____

Block, 286 Md. at 268, 407 A.2d 320.

The Court held that the District Court had jurisdiction over the offense at the time of the verdict of not guilty was rendered and that the verdict barred further criminal proceedings on the same charge.

In the case sub judice, rather than announce a specific and intentional verdict of “not guilty,” the trial judge expressly clarified that he did not intend to find the appellant not guilty. He stated that it was his intention merely to vacate the jury verdict because of the inconsistency and grant a new trial as to first degree rape.

As there was sufficient evidence, aside from the use of the handgun, to support a conviction of first degree rape, we shall affirm the judgment of the lower court.

JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.

1 . Md.Code Ann. art. 27, § 462, provides, in pertinent part:

A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and:

1) Employs or. displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or

(3) Threatens or places the victim in fear that the victim, or any person known to the person will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, ____ (Emphasis added).

2 . MR. McCARTHY [Assistant State’s Attorney]: Your Honor, did I understand the basis upon which the Court is going—

THE COURT: That it is inconsistent. They acquitted him or the use of a handgun, which in this particular case was the basis from raising it from 2nd to 1st degree.

MR. McCARTHY: The defense even conceded in their own argument that that is permissible. The jury can return an inconsistent—

THE COURT: I understand, but what other evidence was there of force, other than this handgun?

MR. McCARTHY: Well, she was pushed back on the bed at some point in time.

THE COURT: I understand, but do you think that would have raised it from 2nd to 1st Degree Murder without the handgun?

MR. McCARTHY: That by itself, absolutely not. I think the Court is invading the province of the jurors as fact finders in the case. They reached—

3 . MR. SEVERT: [Defense Counsel]: May I be heard? My Motion For A New Trial was denied. My Motion to Set Aside the Finding of Guilty as to Count I, I thought was just granted.

THE COURT; Well, is that not part of your Motion For A New Trial? Is that part of your motion?

MR. SEVERT: That is, but I want—

THE COURT; All right.

MR. SEVERT: —to be precise about it because it is important.

THE COURT: All right. Well, let me make sure that you understand. You are asking for a new trial on the grounds of the 1st Degree Rape Charge?

MR. SEVERT: The Court has denied that, Your Honor.

THE COURT: No, I denied the other grounds for your Motion For A New Trial, and I am granting it with respect to your argument as to the 1st degree.

MR. SEVERT: Well, my request, and I thought the Court just granted it, was to set aside the finding and guilt as to Count I, because it is inconsistent.

THE COURT: That is what I did.

MR. SEVERT: Which is tantamount to finding him not guilty.

THE COURT: Why is it tantamount to finding him not guilty? (Emphasis added).

MR. SEVERT: In effect, what you have done is granted what was not done in—which is basically indicating that there was not enough evidence to find him guilty of 1st Degree Rape.

THE COURT: No, your argument was based on inconsistent verdicts.

MR. SEVERT: Right.

THE COURT: I agree with you.

MR. SEVERT: I asked you to correct the verdict.

THE COURT: I am.

MR. SEVERT: By correcting the verdict you find him not guilty.

THE COURT: No, I vacate the verdict as to the 1st Degree Rape Charge.

4 . The docket entry reads: "Hearing On Defendants Motion For New Trial (# 55) (Weinstein, J.) Granted As To Count # 1 (RAPE—First Degree) Vacates Verdict; Denied On All Other Points----”

5 . We rendered a decision on the appellant's first appeal on February 24, 1988. See Middleton v. State, September Term, 1987, No. 848, Per Curiam. We affirmed the appellant’s conviction. Contrary to the State's assertion in its brief, we did not affirm “the propriety of the jury returning a verdict on first degree rape” as that issue was not presented on that appeal; given the procedural posture of the case, the appellant did not appeal and, indeed, could not have appealed, the first degree rape verdict. We did, however, address the issue of the propriety of inconsistent jury verdicts. The appellant had presented the issue whether the guilty verdict on the first degree sexual offense charge was improper in light of the not guilty verdict on the handgun charge. See slip op. p. 1. He argued that, given the victim’s testimony that he used a handgun to force her to submit to his sexual advances, the jury necessarily rejected that portion of the victim’s testimony when it found him not guilty of use of a handgun in a crime of violence. Citing Mack v. State, 300 Md. 583, 593, 479 A.2d 1344 (1984), we held: “Logical consistency in verdicts is not mandated by the law.” Slip op. at 7.

6 . We point out, "consonant with [the Court of Appeals’] consistent holdings, that inconsistent verdicts can stand.” Mack v. State, 300 Md. 583, 601, 479 A.2d 1344 (1984). See also Ford v. State, 274 Md. 546, 553, 337 A.2d 81 (1975). Thus, what we said in appellant’s first appeal is equally apposite here, “[l]ogical consistency in verdicts is not mandated by law.” Slip op. at 7. It is clear, therefore, that there was no infirmity in the jury verdicts finding appellant guilty of first degree rape, while, at the same time, acquitting him of the handgun charge.