Hoffert v. State

CHARLES E. ORTH, Jr., Judge. Jackie Hoffert was convicted by a jury in the Circuit Court for Baltimore City of the misdemeanor of using a handgun in the commission of a crime of violence. He was sentenced to imprisonment for a term of 25 years pursuant to Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 643B (mandatory sentences for crimes of violence). He appealed from the judgment, and, on our own motion, we ordered the case certified to us before decision by the Court of Special Appeals.

We reverse. I The Trial The case went to the jury on four charges. As shown on the verdict sheet given the jury, they were: 1) Attempted murder in the first degree. 2) Attempted murder in the second degree. 3) Robbery with deadly weapon. 4) Use of a handgun in the commission of a crime of violence. When, in the course of his instructions, the trial judge reached the fourth charge, he told the jury that a handgun used in a crime of violence constitutes a separate and distinct offense.

He defined “handgun” and noted that before the jury could find Hoffert guilty of using it in the commission of a crime of violence, they must be convinced, ³⁸⁰ (1) that a handgun was used by Hoffert, and (2) that he used it in the commission of a crime of violence. The judge informed the jury that attempted murder, whether in the first degree or the second degree, and robbery with a deadly weapon are crimes of violence. He admonished the jury: You may not find the Defendant guilty of use of a handgun in the commission of a crime of violence unless you are convinced beyond a reasonable doubt that he is guilty of a crime of violence. That is, in order to find the Defendant guilty of use of a handgun in the commission of a crime of violence you must also be convinced beyond a reasonable doubt that he committed a crime of violence which is either attempted murder in the first degree, attempted murder in the second degree or robbery with a dangerous and deadly weapon.

After counsels’ closing arguments, the judge emphasized his admonition. He said: Finally, again I remind you that you may not find the Defendant guilty of use of a handgun in the commission of a crime of violence along with all the other elements required unless you find him guilty of the underlying crime of violence, either attempted murder in the first or second degree or robbery with a deadly weapon. Should the Defendant be found not guilty of attempted murder in the first degree, not guilty of attempted murder in the second degree, not guilty of robbery with a deadly weapon, you may not find him guilty of use of a handgun in the commission of a crime of violence. The foreman announced the verdicts.

The transcript of the proceedings reads: THE CLERK: Mr. Foreman, please stand. How do you find the Defendant Jackie Hoffert where he is charged with attempted murder in the first degree, not guilty or guilty? THE FOREMAN: Not guilty. ³⁸¹ THE CLERK: How do you find him in the charge of attempted murder in the second degree, not guilty or— THE FOREMAN: Not guilty. THE CLERK: How do you find him in the charge of robbery with a deadly weapon, guilty or not guilty?

THE JUROR: Not guilty. Before the verdicts could be hearkened, the judge asked the prosecutor if he wished to have the jury polled. Upon the prosecutor’s affirmative reply, the clerk conducted the poll. It showed that the verdicts were unanimous.

The clerk then proceeded to hearken, but the hearken went only to the first charge. The clerk said: Hearken the verdict as the record has recorded it. You say Jackie Hoffert where he is charged with attempted murder in the first degree that he is not guilty and so say you all. The judge addressed the jury: Members of the jury, having received your verdicts here today your service in this case is now complete.

I must tell you, however, that— The judge did not have the opportunity to disclose to the jury what he had in mind because he was interrupted by a juror. But some indication of his reaction to the verdicts may be gleaned from his immediately preceding question to defense counsel, “Can you also walk on water?” In any event, a juror called attention to the fourth charge on the verdict sheet, the use of a handgun in the commission of a crime of violence. The judge asked the foreman for the jury’s verdict on that charge. The answer of “guilty” obviously came as a surprise to the judge and counsel.

The judge said to counsel, “Come to the bench.” A conference ensued in the presence of Hoffert. The judge asked the prosecutor and defense counsel: [T]he verdicts as recorded in this court from the jury is that the Defendant is not guilty of any of the crimes of violence. Having been found guilty of use of a handgun in the commission of a crime of violence how can we enter that verdict? ³⁸² During the discussion that followed, the judge indicated that he was not going to accept the verdict and suggested that the prosecutor ask for a new trial, apparently on the fourth charge. The prosecutor was not amenable.

His view was to accept the verdict. He argued: Juries compromise all the time____ [T]hey find some rational reason for it____ [The jury] may have ignored your instructions but they found him guilty and the law says they can compromise. The judge gave counsel ten minutes to research the jaw. The jury was sent back to the jury room with the command not to discuss the case — “Just go to the jury room and wait.” After a brief recess the proceedings resumed.

The court informed counsel that he intended “to put the jury back in the box and take their verdict as to the [handgun charge].” He would have the jury polled if requested. He said: [D]uring the polling I will ask the jurors if their verdict is the same as the foreman and was that their verdict prior to the time we took the last recess. The jury was put in the box. The procedure announced by the judge was carried out.

The foreman said that the verdict of the jury was “guilty.” Defense counsel requested that the jury be polled. The judge asked each juror if his verdict was the same as stated by the foreman. Upon receiving an affirmative reply, the judge asked each juror, including the foreman, “Was [guilty] your verdict prior to the time we took the last recess?” Each juror answered that it was. At the direction of the judge, the clerk hearkened the guilty verdict and also the not guilty verdicts.

Upon being assured by the prosecutor and defense counsel that they had nothing “else on the verdict while the jury [was] intact,” the judge dismissed the jury in these words: Members of the jury, your service is now completed in this case. You are free to go. The jury was excused from the courtroom. During the disposition proceedings, defense counsel informed the judge that Hoffert would like the court to ³⁸³ explain, in light of the not guilty verdicts, what the crime of violence was in the handgun charge.

The judge replied: I can’t answer that. Maybe the Court of special Appeals will some day. The judge did not think it was “time to go to law school____” The only thing he could tell Hoffert was that the verdict was allowed to stand because it was permitted by Maryland law. We do not think it was. 1 II The Law (1) Inconsistent Verdicts Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 86B(d) provides: 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 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 subject to a separate sentence as therein prescribed].

A crime of violence as defined in § 441(e) includes attempted murder and robbery with a deadly weapon. We said in Ford v. State, 274 Md. 546, 550-551 , 337 A.2d 81 (1975) (footnote omitted): [S]ection 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 ³⁸⁴ convicted of unlawfully using a handgun in the commission of either. “Consequently,” we observed in Shell v. State, 307 Md. 46, 53 , 512 A.2d 358 (1986), “commission of a felony or crime of violence is an essential ingredient of the § 36B(d) handgun offense. It is an element of the crime.” If the jury determines that the accused did not commit a felony or crime of violence but is guilty of use of a handgun in the commission of such felony or crime of violence, the jury has obviously rendered inconsistent verdicts. Shell, 307 Md. at 53 , 512 A.2d 358 .

Thus, “verdicts [of] not guilty of the crime of violence and guilty of use of a handgun in the commission of such a crime ... would be contrary to law----” Mack v. State, 300 Md. 583, 595 , 479 A.2d 1344 (1984). Therefore, “a trial court in a criminal case must, if requested by the accused, instruct a jury that an accused cannot be found guilty of use of a handgun in the commission of a crime of violence under ... Art. 27, § 36B(d) if found not guilty of a crime of violence as defined in ... Art. 27, § 441(e).” Id. at 587, 479 A.2d 1344 , quoted in Shell [307 Md.] at 54, 512 A.2d 358 .

Nevertheless, inconsistent verdicts by a jury “are normally tolerated....” Wright v. State, 307 Md. 552, 576 , 515 A.2d 1157 (1986). See Shell, 307 Md. at 54 , 512 A.2d 358 . This is so because of “the unique role of the jury, [and has] no impact whatsoever upon the substantive law explicated by the Court.” Mack, 300 Md. at 594-595 , 479 A.2d 1344 . Due to the singular role of the jury in the criminal justice system, “there is a reluctance to interfere with the results of unknown jury interplay, at least without proof of ‘actual irregularity.’ ” Shell [307 Md.] at 54, 512 A.2d 358 , quoting Ford [274 Md.] at 553, 337 A.2d 81 .

The general view is that inconsistencies may be the product of lenity, mistake, or a compromise to reach unanimity, and that continual correction of such matters ³⁸⁵ would undermine the historic role of the jury as the arbiter of questions put to it. Shell at 54, 512 A.2d 358 . On the other hand an instruction directing the jury to render consistent verdicts is beneficial because it minimizes the possibility of inconsistent verdicts that result in a conviction contrary to law. Such an instruction does not in any way impair the jury’s function.

Even after such an instruction has been given, the jury retains its power to err, either fortuitously or deliberately, and to compromise or exercise lenity. It, therefore, retains the power to be the final arbiter in the determination of which, if any, of the crimes charged the accused is guilty. Mack, 300 Md. at 597 , 479 A.2d 1344 . 2 It follows from our decisions that the instructions given the jury were in full accord with the law, but that the jury was free to ignore them. (2) The Effect of the Not Guilty Verdicts It is apparent that when the jury announced the verdicts of not guilty and were polled, the judge thought that the trial was over.

As we have seen, the judge told the jury: ³⁸⁶ Members of the jury, having received your verdicts here today your service in this case is now complete. He was right. But he went astray by permitting the jury to render a verdict on the handgun charge. Then, when the jury returned a verdict of guilty, the judge was presented with a real dilemma.

He resolved the dilemma by allowing the verdict to stand and entering judgment on it. This was wrong. He was encouraged to travel the primrose path by the prosecutor. What both the judge and the prosecutor overlooked was the effect of the not guilty verdicts on the viability of the trial.

When the jury was polled on the verdicts of not guilty on the first three charges, see Md. Rule 4-327(e), and the poll disclosed that the verdicts were unanimous, the verdicts were final. Smith v. State, 299 Md. 158, 164-170 , 472 A.2d 988 (1984); Pugh v. State, 271 Md. 701, 705 , 319 A.2d 542 (1974). The verdicts were legally proper. They were not contrary to the law and, without more, were in full accord with the judge’s instructions which properly reflected the law.

Nor were they “ambiguous, inconsistent, unresponsive, or otherwise defective.” See Smith [299 Md.] at 170, 472 A.2d 988 . The verdicts stood complete without a verdict on the handgun charge. The guilt stage of the trial was over at that point. The jury had no further function to perform.

It had exhausted its power and authority and could not be called upon to exercise additional