Cross v. State

Moylan, J., delivered the opinion of the Court. The appellant, Melvin Alfonzo Cross, was convicted by a Howard County jury, presided over by Judge Joseph Mattingly, of grand larceny. Upon this appeal, he raises five contentions, the first four of which are interestingly intertwined: (1) That a new trial should have been granted because the jury’s verdicts of guilty of both larceny and receiving stolen goods were inconsistent and, therefore, fatally defective; (2) That the evidence was not legally sufficient to support the grand larceny verdict; ⁵⁰⁴ (3) That irrelevant testimony from one Cindy Brosenne was erroneously admitted; (4) That prejudicial evidence of another crime was erroneously admitted; and (5) That an in-court identification was the product of an impermissibly suggestive pretrial photographic viewing. The Inconsistent Verdicts The jury returned verdicts against the appellant of guilty of grand larceny and guilty of receiving stolen goods, both charges arising out of the same incident.

The appellant is absolutely correct in his major premise that “a defendant cannot be both a thief and a receiver when it is apparent that the property alleged to have been stolen is the same as that alleged to have been received.” Bell v. State, 220 Md. 75, 81 , 150 A. 2d 908 . It is also true “that a general verdict of guilty on two inconsistent counts, such as larceny and receiving, is defective.” Id., at 80 ; Heinze v. State, 184 Md. 613 , 42 A. 2d 128 . The question before the Court, however, is not that of whether the verdicts were inconsistent but rather that of what should be done when such inconsistencies unfortunately occur. The appellant urges further that the best of all solutions, when such inconsistent verdicts are rendered, is to send the jury back to the jury room, with appropriate instructions, so that they can exercise their choice between the verdicts, either of which might be appropriate but both of which cannot.

He quotes correctly from Heinze v. State, at 184 Md. 618 , that “it is the safer practice to send the jury back to their room with instructions as to the corrections that ought to be made, so that they can amend the verdict as they think proper unhindered by the presence and possible influence of others.” To the same effect, we said in McDuffie v. State, 12 Md. App. 264, 267 , 278 A. 2d 307 : “It is clear that in the case now before us, the better procedure would have been for the trial judge to have asked the jury to return to the jury room and, if they were indeed intent upon returning a verdict ⁵⁰⁵ of guilty under the first count charging robbery with a dangerous and deadly weapon, then to return verdicts of not guilty on the other counts....” Although this would indisputably be the best of all remedies, the flaw in the appellant’s argument is that nobody, significantly including the appellant, even spotted the problem, let alone suggested the preferred remedy, at the time it occurred. The rendition of the jury verdicts occurred as follows: “(THE JURY RETURNED TO THE COURT ROOM AT 4:55 P.M. WITH A VERDICT AS FOLLOWS:) Count Two—Breaking and Entering Not Guilty Count Three — Grand Larceny Guilty Count Five — Receiving Stolen Goods Guilty Whereupon, by request of Defense Counsel, the Jury was polled and all twelve answered in the affirmative. The jury was then dismissed. MR.

GOLDBERG: Your Honor, for the record, the Defense requests a PSI. THE COURT: Very well, sir. A pre-sentence report is therefore ordered and sentence will be delayed pending the receipt of the report from the Parole Department. MR.

GOLDBERG: Thank you, Your Honor. MR. PEKLO: Thank you, Your Honor. THE COURT: Thank you.

COURT RECESSED AT 5:10 P.M.” The short answer to the contention would be simply to point out that the issue has not been preserved for appellate review. Maryland Rule 1085. In Bell v. State, supra, a case also involving inconsistent verdicts of guilty of both larceny and receiving, the Court of Appeals made it clear that the ⁵⁰⁶ failure to raise the issue at the trial court could be dispositive, saying at 220 Md. 81 : “When a verdict of guilty is rendered on inconsistent counts, the defendant has a right to require the trier of facts to specify on which of the counts he is guilty, but it is a right which may be waived. Since the question was not raised below in any manner, it may be that the defendant waived the inconsistency.

"(Emphasis supplied) We spoke to the same point in Thomas v. State, 2 Md. App. 645, 648 , 236 A. 2d 747 : “The next complaint concerns the conviction of grand larceny and receiving stolen goods on the basis that the counts were mutually exclusive. It is true that the verdict is inconsistent, however, there was no objection below and there was no prejudice.” In the exercise of our discretion, however, we would go further and address the merits. Even if the point had been preserved for appellate review, it would avail the appellant little. The trial concluded with the rendering of the verdicts on April 20, 1976.

The appellant first raised the question of inconsistent verdicts at the hearing on his Motion for a New Trial on September 24, 1976. The jury had not simply been dismissed but it had, as of then, been totally dispersed for over five months. There was no way under the sun that that jury could be reconstituted. The sole thrust of the appellant’s argument both upon the Motion for a New Trial and before this Court was not for such corrective action as was still available to the court, but for a complete reversal and a remand for a new trial before a new jury.

The injury did not compel so radical a cure. The State had, in the meantime, taken corrective action of its own. It nolle prossed the charge of receiving stolen goods so that the only sentence ultimately imposed was for the conviction of grand larceny. The appellant now questions the power of the State’s Attorney to enter a nolle pros after a verdict has been rendered by the fact finder.

Although we ⁵⁰⁷ perceive no impediment to the entering of a nolle pros by the State at that stage of the proceedings, 1 the entry of the nolle pros is not the subject of this appeal. The judgment appealed from was the sentence upon the conviction of grand larceny. We are concerned not with the method by which the conviction for receiving stolen goods was dissolved, but with the propriety of the conviction for grand larceny remaining undissolved. The ultimate harm flowing from inconsistent verdicts is not the possibility that the jury may have been confused in its decisional process (for illogical and “compromise” jury verdicts are countenanced without question, if not indeed without power to question) but rather the risk that a defendant will erroneously be subjected to double and inconsistent punishments.

That threat was removed in this case by the State’s prompt dismantling, via the nolle pros, of one horn of the dilemma. The appellant was relieved of potential prejudice. That the agency of that relief happened to be the State’s Attorney rather than the trial judge is of no moment. The appellant would have us believe, however, that the inconsistency of the jury was in and of itself a sin beyond redemption, except at the hands of that jury.

We cannot take so stern an attitude toward the technical missteps that frequently bedevil the complicated and snare-strewn trial process. The philosophy, rather, which invigorates our ⁵⁰⁸ approach was that quoted with approval by the Court of Appeals in Heinze v. State, supra, at 184 Md. 619 . The words were those of Chief Justice Paxson in Appeal of Nicely, 130 Pa. 261 , 18 A. 737 , 739: “There was a time in the history of the English criminal law when great crimes were left unpunished because of harmless, technical errors. This greater strictness was perhaps due to the fact that at that period the Criminal Code was especially bloody.

Capital punishment was inflicted for very trifling offenses; and, it may be, the judges sought to ameliorate its rigor by holding the crown to the observance of the nicest technicalities. * * * With the advancement of judicial science, and a more enlightened administration of the law, mere technicalities are less regarded, where they work no harm to a defendant.” These words were applied in Bell v. State, supra, where the Court of Appeals declined to reverse on the basis of inconsistent verdicts, absent ultimate prejudice. It said, at 220 Md. 81 : “In any event, the court passed but one sentence of a year’s duration and then provided that it should run concurrently with the previous sentence of three years for the receiving and unauthorized use of the automobile referred to in the first indictment. Since it does not appear that the defendant has been prejudiced [Heinze v. State, supra] by the rendition of inconsistent verdicts under the second indictment, we see no reason to make such inconsistency the basis for a remand of the case for further proceedings or a new trial. Novak v. State, 139 Md. 538 , 115 A. 853 (1921).” Similar results were reached in Hardesty v. State, 223 Md. 559 , 165 A. 2d 761 ; Novak v. State, 139 Md. 538 , 115 A. 853 ; Price v. State, 3 Md. App. 155 , 238 A. 2d 275 ; Tender v. State, 2 Md. App. 692 , 237 A. 2d 65 ; and Boone v. State, 2 Md. App. ⁵⁰⁹ 80, 117, 233 A. 2d 476 .

In terms of diagnosing what probably-happened and the innocuous nature of the happening, we feel in this case exactly as we did, in looking at .a patient with similar symptoms, in McDuffie v. State, supra, at 12 Md. App. 267 -268: “A common-sense review of what transpired, however, permits of no other conclusion than that the jury found the appellant guilty under the most major count — robbery with a dangerous and deadly weapon — and then, subsidiarily but erroneously, concluded that all of the other counts were lesser-included constituent parts of the major count and that a finding of guilt thereon was logically compelled. . . . To forestall any danger of multiple convictions and multiple sentencing on either the lesser-included or the inconsistent counts, the trial judge promptly directed the clerk to enter verdicts of not guilty on counts 2 through 7. The appellant was sentenced only upon the first count, of which the jury obviously found him to be guilty. We feel that he, thereby, suffered no prejudice.” In this case, the evidence (as we shall presently see) was legally sufficient for the judge to let the charge of grand larceny go to the jury.

The jury found the appellant guilty of grand larceny beyond a reasonable doubt. The appellant was ultimately sentenced only for the crime of grand larceny. Whatever traps and snares there may have been along the path have now been rendered moot. We perceive no prejudice.

The Legal Sufficiency of the Evidence Our analysis of the legal sufficiency of the evidence to establish grand larceny has two aspects to it. In a moment, we shall assay the affirmative evidence in terms of its sufficiency to establish the necessary elements of the crime of grand larceny. Initially, it is meet to comment upon the ⁵¹⁰ jury’s ultimate finding as to receiving in terms of its arguably erosive effect upon the evidentiary sufficiency as to larceny. The motion that the finding of guilt as to receiving ipso facto represents a finding that the appellant was not the thief and that it, therefore, fatally erodes the legal sufficiency of the evidence as to theft is without any persuasiveness whatsoever.

Yet, just such arguments are regularly made whenever a jury renders inconsistent verdicts. The answer to such arguments is twofold. Secondarily, one half of the inconsistent verdict serves to demolish the creaking edifice of strained reasoning erected upon the other half. The direct jury conclusion, necessary for the larceny verdict, that the appellant was the thief refutes the deduction, flowing from the receiving conviction, that the jury somehow found that the appellant was also not the thief.

There are too many plausible explanations of how a jury comes up with inconsistent results to let defense exercises in arid logic unduly trouble us. Even when inconsistent verdicts are rendered by legally trained judges, we recognize that what is called for is simply the untangling of a procedural or logical snarl and not the aborting of an entire adjudicative process that was itself free from fatal snarls. It was of this very problem that we spoke in McDuffie v. State, supra, at 12 Md. App. 271 : “In both Tender v. State, supra, [ 2 Md. App. 692 ] and Price v. State, supra, [ 3 Md. App. 155 ] inconsistent verdicts were handed down by trial judges, sitting without juries. In each case, there was a verdict finding guilt for the consummated crime of armed robbery and also for the attempt to commit that crime.

In neither case did we permit ourselves to be boxed into the logical absurdity of holding that the fact-finder had somehow concluded, beyond a reasonable doubt, both that the defendant had completed the crime and also that he had failed to complete the crime. In each case, recognizing the error for what it was, we simply ⁵¹¹ reversed the judgment of guilt as to the count charging the attempt.” 2 More significantly, nothing that the fact finder does in the deliberative stage of the case can conceivably have any bearing whatsoever upon the question of the legal sufficiency of the evidence. A criminal trial has at least three distinct stages which are pertinent to the present analysis. One is the adjudicative stage, wherein all evidence is adduced that will go to the fact finder.

Only after that adjudicative stage has been completed do we enter into the deliberative stage, in the course of which the fact finder weighs the evidence earlier adduced and reaches a verdict. At the conclusion of the deliberative stage, we enter into the judgmental stage. If the verdict of the deliberative stage is guilty, the judgmental stage consists of imposing an appropriate sentence; if the verdict of the deliberative stage is not guilty, the judgmental stage is a simple, “Hail and farewell.” When we measure the legal sufficiency of evidence, we do so at the control point where the adjudicative stage connects with the deliberative stage. The judge, either at trial or on appeal, is sitting at a sluice gate measuring the flow of evidence from the adjudicative stage into the: deliberative stage.

If it is not sufficient, quantitatively and qualitatively, the trial is terminated and the deliberative stage never begins. If it is sufficient, the deliberative stage does begin. That stage is in the unfettered control of the fact finder. We may not inquire into that decisional process, beyond seeing that it was kept free from contaminating external influences.

In terms of measuring the legal sufficiency of the evidence, the situation is frozen as of the moment when the deliberative process is permitted to begin. This is true whether the fact finder be a jury or a judge. As Judge Orth ⁵¹² meticulously and lucidly brought out in his pioneering analyses of the process in Williams v. State, 5 Md. App. 450 , 247 A. 2d 731 , and Metz v. State, 9 Md. App. 15 , 262 A. 2d 331 , we ask only whether the evidence is sufficient, as it passes that control point, to permit the fact finder, court or jury, to be convinced beyond a reasonable doubt. What the fact finder then does with legally sufficient evidence — logical or illogical, cogent or fanciful, consistently or by way of compromise, by sound avenues of reasoning or by nonsensical blind alleys of the mind, by thought or by prayer, by deduction or by intuition — is forever beyond our ken and beyond our power to review.

We control simply what goes into that process, not the process itself nor what comes out of it. When the deliberative stage moves into the judgmental stage, we do have limited control over inconsistent verdicts. This, however, is simply to see that a defendant is not punished twice for two offenses, either of which he could have committed but both of which he could not have committed. This control, for sentencing purposes, has nothing whatsoever to do with the question of legal sufficiency.

The determination to open the sluice gate and let the deliberative process begin is right or wrong at the moment it is made. Nothing that happens thereafter can date back to make its propriety other than it was at that instant when it was frozen in time for purposes of appellate review. Legal sufficiency is not concerned with whether the fact finder did the right thing. It is rather concerned with whether the fact finder had sufficient raw material with which to work so that he could have done the right thing.

It is a problem of supply and not of execution. In this case, the ultimate jury verdicts can have no bearing on the trial judge’s earlier determination that the evidence was legally sufficient to let the case go to the jury, because subsequent events cannot, by definition, relate back to influence anterior decisions. We now turn our attention to the affirmative evidence in the case, as the trial judge, directed by' the appropriate motion, measured the evidence passing the control point ⁵¹³ between the adjudicative stage and the deliberative stage and determined that it was sufficient to trigger deliberation. The home of Mr. and Mrs. Robert L. Fridell, in Howard County, was burglarized at approximately 4 p.m. on Sunday, February 15, 1976.

Forty=seven items of personal property were discovered to be missing, including a diamond engagement ring, which had been owned by Mrs. Fridell for 42 years, which was split where it finally had to be cut from her finger and which had been kept in a cigarette box in the den of the Fridell home. That ring, later identified by Mrs. Fridell, could be traced to an automobile owned by the appellant. Although the ring was not literally recovered by the police until February 18, three days after the burglary, it could inferentially be located in the appellant’s car as early as February 16, one day after the burglary. The evidence established that the appellant’s automobile was involved in an accident in Prince George’s County on February 16.

The automobile was towed to a filling station in Bowie. On that same day, the appellant presented himself to the operator of the towing business at the filling station and displayed a release form from the police for personal property contained in the vehicle. He removed a number of items of personal property. His automobile was subsequently moved to the police impounding lot, where a search on February 18 revealed the diamond ring.

For whatever reasons, the appellant offered no explanation for the presence of the recently stolen ring in his automobile. Nor for that matter did he offer any explanation by way of indicating that his automobile had not been in his possession during the period February 15-February 16. If it had