Hudson v. State

THIEME, Judge. Gerard A. Hudson appeals from the judgments of conviction by a Baltimore City jury on two counts charging second degree murder, and two counts of conspiracy to commit first degree murder. By separate indictments filed in the Circuit Court for Baltimore City, Hudson was charged with two counts each of first degree murder, use of a handgun in the commission of a crime of violence, carrying a handgun, and conspiracy to commit first degree murder. 1 After his convictions, he was sentenced to two consecutive terms of thirty years’ imprisonment on the murder convictions and a consecutive life sentence for one conspiracy; the additional conspiracy was merged for purposes of sentencing. In his appeal, Hudson presents the following issues, which we have recast: 1.

Did the trial court abuse its discretion in admitting hearsay evidence? 2. Must the convictions for conspiracy to commit murder be reversed in view of the jury’s inconsistent finding of guilt for second degree murder? 3. Did the trial court’s denial of the defense motion for a mistrial constitute an abuse of discretion? ⁴⁹⁴ 4. Was the evidence sufficient to support the convictions for second degree murder and conspiracy?

We shall affirm the convictions. Pacts The appellant’s prosecution emanated from the murders of A1 Duante “Dante” Brown and Clarence “Pops” Miller on December 30, 1999, in Baltimore City. The two victims were dropped near the comer of North Avenue and Ashburton Street. The Murders Catherine Lee was an eyewitness.

She was Miller’s fiancée, and was also acquainted -with Dante Brown, who hung out for a while at Miller’s house in Baltimore. Around 9:00 p.m. on December 30, Miller accompanied Lee to the “Cut Rate,” a liquor store/bar, on Braddish at North Avenue. On the way they encountered Brown near North and Ashburton. When Lee entered the “Cut Rate,” Miller remained outside with a friend; Brown stayed farther down the block.

After Lee left the “Cut Rate,” she and Miller crossed over to North Avenue, met Brown, and the trio proceeded to walk down North Avenue back toward Ashburton. As they turned onto Ashburton, Lee happened to turn around to see an individual approaching from behind. This person, who obscured his face with a bandanna, overtook Miller and Lee and headed straight for Brown. The stranger briefly addressed Brown, got no reply, and reached for “something” from his pants.

Lee could not identify the object, but she anticipated trouble. Perhaps presaging a robbery about to occur, she began “easing back.” As she started to cross Ashburton, a gunshot rang out, and she ducked behind a parked van. She claimed to be scared, because “they” were shooting. Lee saw that Miller was struggling with Brown’s assailant, and heard two separate, additional volleys of gunfire. ⁴⁹⁵ After the shooting ended, Lee remained behind the van for a brief period.

She saw a person, resembling the assailant from the back, running away from the scene. She did not recall seeing anyone else, but, she remained safely behind the van and thus did not watch all of the action. 2 After this, Lee went to the police. Admissions of Guilt On December 31, 1999, at about 11:00 a.m., appellant arrived at the apartment of Rene Knight to visit with Knight’s son. Knight, who was 43 years old at the time of her testimony, had known both appellant and his friend Pierre 3 for about five years.

She had been a former neighbor of appellant’s on Braddish Avenue. At the time of these events, Knight lived with her daughter in a second-floor apartment located over a flat that was occupied by appellant’s sister, Tamika Hudson, on Barnes Street in Baltimore. Appellant, wearing a black bandana, approached Knight and asked whether she knew about the events of the previous evening. When Knight professed ignorance, appellant told her that he had shot someone on North and Ashburton, claiming as a reason that “his mother had been disrespected.” Appellant said that he had waited until dark before shooting his victim.

He also claimed that he had been accompanied by his friend “Pierre,” who in turn “dealt” with the other person ⁴⁹⁶ because that individual had “disrespected his grandmother.” Knight unsuccessfully attempted to encourage appellant to go “talk to somebody” or turn himself in. During this conversation, Pierre Easter, who was present, maintained his silence. After this episode, appellant went to another room to play a video game with Knight’s son and son-in-law. Although appellant appeared to be upset that his mother had been insulted, he showed to Knight “no conviction, no remorse, no nothing” about the previous night’s events.

Knight recalled seeing a handgun that morning in the hands of appellant’s cousin, Bianca Young. She had heard what appeared to be “gunshots,” and went to investigate. Appellant seemed amused when Knight inquired about them. Knight thought this weapon was a .38 caliber pistol with a brown handle and a quarter-inch barrel, and ordered that it be taken from the apartment away from “unreliable teenagers.” At trial, Knight identified a .32 caliber handgun as the weapon she had seen on the 31st.

This was the handgun removed from appellant’s home by Detective Williams. 4 Knight admitted that she had not contacted the authorities about appellant’s statements. Bianca Young, appellant’s cousin, was fourteen years old at the time of her testimony. Bianca testified that appellant had admitted to her that he had gotten into an argument with a man the previous day because the latter had “disrespected [appellant’s] mom,” calling her a “bitch.” Appellant said that he shot this person once, and that his Mend Pierre Easter had shot the victim’s companion, because that man was “running his mouth.” Pierre Easter was present, and, according to Bianca, had blood on his coat and a cut on his head. In ⁴⁹⁷ contrast, appellant had no blood on his clothes and no apparent injuries.

The pair displayed a black handgun. Bianca identified this handgun as the same weapon recovered from appellant’s home and also identified by Knight. Bianca noticed that both appellant and Pierre had bandannas. Eva Coleman is Dante Brown’s mother.

She admitted that her son was a cocaine addict, and that he would often entrust her with money from his paycheck so that he would not spend all of his earnings on drugs. On December 30, Coleman accompanied Brown to pick up his paycheck, and then took him to the bank to deposit all but $40. Concerning the money, she said that Brown paid money to “a guy named Little Glenn[,]” a member of the extended family, and guessed that the debt was “for drugs.” She then took Brown to the vicinity of Coppin State College. She did not see him again until he returned home at 4:30 that afternoon.

Coleman recalled that Brown was in a rush, and was not wearing his coat. She became concerned for his welfare; he obtained more money. She did not know what would happen to her son “out on the streets.” Coleman explained that “he might get killed, stabbed. Anything could have happened to him because I knew he had a problem ... a drug problem.” Other than this, she could not recall anything in particular that prompted her concerns.

On cross-examination, Coleman responded in the affirmative when questioned whether she had a “lot of concerns about [Brown’s] safety generally ... because he was a drug user and he was out running the streets[.]” She then agreed with trial counsel’s question that, “... because he was a drug user, he would have debts to drug dealers____” The Investigation Police investigations brought them to appellant’s home on January 5, 2000. Appellant, 16 years old at the time of the homicides, lived with his mother, Mattie Hudson, at 1906 Braddish Avenue. On that date, a number of plainclothes officers, including Detective Antoine Williams, were cruising in an unmarked sedan near appellant’s home. They encountered ⁴⁹⁸ appellant on the street, and one of the officers conducted what Detective Williams described as a “field interview.” 5 As a result of this, the officers proceeded to appellant’s house, where they were met by his mother, from whom they obtained permission to search appellant’s bedroom.

Detective Williams located a loaded Burgo .32 caliber revolver from under a mattress in what was thought to be Gerard Hudson’s room. Appellant was interviewed by police on March 10, 2000, and provided a recorded statement that was played at trial. 6 He told officers that on the night of the 30th, he was sitting in his brother’s bedroom when Pierre Easter “came in there and he asked me let him hold the gun.” He had told Easter where it was kept. Easter explained to appellant that someone had insulted his grandmother. According to appellant, Easter “grabbed the gun from under the mattress and he put this black scarf on his face and went downstairs and came outside.” Appellant said that he then went outside, walked to the corner, saw that Easter was down at Ashburton, “and [saw that] he [Easter] raised the gun up to the man ... and he fired one shot.” Appellant went home, then returned to the street, heard three more shots, then went toward Ashburton “to see who—Pierre before he fired the three, the other three shots the man was tussling.” Appellant said that as the last three shots were fired he “got to the comer[.]” Both Easter and appellant then ran back to appellant’s home.

Appellant admitted that the weapon found in his brother’s room, the one recovered by Detective Williams, had been used in the shootings. Dr. Wayne Fowler, Deputy Chief Medical Examiner, performed the autopsies on both Miller and Brown. From the former post mortem examination, Dr. Fowler recovered three bullets, two from a large caliber weapon and the third from a “much smaller” caliber. In addition to his other wounds, ⁴⁹⁹ Miller had been shot in the back four times with the larger caliber weapon.

Detective Jones conducted part of the interview, and asked appellant about the gun. Appellant replied that the weapon had been placed under a mattress in his brother’s room. When asked to explain how the police had obtained the weapon, appellant replied: They ... when I was ... arrested for a CDS 7 charge and ... the police asked me where I lived at and I told him and I showed him where I lived at. And he asked my mother could he check[ ] the house and ... she replied yes[.] ...

And he went in there and checked the house and he found the ... gun. When asked to describe the victims, appellant said he couldn’t see them, but recalled, “I think one of them had on a red jacket.” Additional facts as necessary will be presented in our discussion below. Discussion I. Victim’s Hearsay Statement Introduction Appellant attacks the trial court’s admission, through the testimony of an investigating detective, of certain statements the decedent Dante Brown purportedly made to his mother, Ms. Coleman. Citing this as “double hearsay,” and exhorting prejudice, appellant insists that the statements made by Dante to his mother “provided the jury with a much more compelling motive for murder than the ‘disrespecting’ of relatives[.]” That motive, appellant observes, was a supposed drug debt.

The State counters initially that the defense failed to preserve its objection to the admission of the specific statement at issue, and secondly that the action taken by the trial judge ⁵⁰⁰ was well within his discretion, and finally that any error was harmless. We find that any error in the admission of the contested statements was harmless beyond a reasonable doubt. To place this issue into its appropriate perspective, we must rehearse the course of the trial that led to the admission of Dante Brown’s hurried words. During the State’s examination of Detective Wayne Jones, who interviewed Eva Coleman, the following occurred: [PROSECUTOR]: All right.

And directing your attention to State’s Exhibit 10 for identification purposes only, would you take a moment to review that, please, and tell us if that is your summary of what she told you and if it’s accurate? [WITNESS]: Yes. [PROSECUTOR]: The questions I’m about to ask you, you cannot answer with telling us what Dante said, okay? [WITNESS]: Correct. [PROSECUTOR]: I’m going to ask you what if any reason did she give for Dante coming into the house without his coat on? [DEFENSE]: Objection. THE COURT: Basis? [DEFENSE]: Leading and it’s asking for hearsay. THE COURT: Well, the witness is available. I suspect this witness will be back here to be cross-examin[ed]— [PROSECUTOR]: Yes, Your Honor.

THE COURT:—for cross-examination? I’ll overrule the objection. [PROSECUTOR]: You can answer. [WITNESS]: Okay. Can you repeat the question again, please? [PROSECUTOR]: Yes. What if any reason did Ms. Coleman give for why Dante came back into the house at 4 to 5:00 in the afternoon without his red coat? ⁵⁰¹ [WITNESS]: The reason was he was being pursued by someone. [PROSECUTOR]: Did she tell you that? [WITNESS]: Yes. [PROSECUTOR]: All right.

And how— THE COURT: Excuse me, counsel. Now let’s base this on the understanding that Ms. Coleman will be brought back. [PROSECUTOR]: Absolutely. THE COURT: And, therefore, Ms. Flynn will have an opportunity to cross-examine— [PROSECUTOR]: Absolutely. THE COURT: Ms. Coleman.

Let’s go. [PROSECUTOR]: Thank you, Your Honor. [PROSECUTOR]: And how, if at all, did she say he was behaving at 5:00 when he came back into the house? [WITNESS]: He was very, very erratic. He had changed his clothing. He was very nervous. She tried to get him to stay inside the house. [PROSECUTOR]: And why did she tell you she wanted him to stay inside the house? [WITNESS]: For fear of his safety.

She had concerns that something was wrong. [PROSECUTOR]: What, in particular, was she—did she tell you she was concerned—- [WITNESS]: She was concerned, that after he rushed in excited, she tried to encourage him to, to avoid going back out for fear of being harmed. [PROSECUTOR]: And did she tell you what, in particular, she was worried would harm him? [WITNESS]: Persons whom he owed money to for drug debts. [PROSECUTOR]: And what, if anything, did she believe had just happened right before he came into the house? [DEFENSE]: Objection. Leading, Your Honor. [PROSECUTOR]: I’ll rephrase it. ⁵⁰² THE COURT: Also requiring the witness to speculate about another- person’s state of mind, so I’ll sustain the objection. [PROSECUTOR]: What, if any, understanding did she— THE COURT: Excuse me. Counsel, come up. Let’s come up.

THE COURT: This has become— [PROSECUTOR]: Well, I can do it that way. That’s fine. THE COURT:—having him speculate—speaks for itself. [PROSECUTOR]: Okay, I’ll do it.... [DEFENSE]: Then I’ll put my objection on the record for that. He indicated that he spoke to her shortly after the murder for identification purposes, which would have been December 31st.

This is dated January 3rd. But on the bottom, on the printout, it’s dated January 5th, so these are not notes that were made simultaneously with the interview based on what I’ve been given. THE COURT:—lay a foundation for that. [PROSECUTOR]: He can explain. THE COURT: He can explain—dates and—I’ll sustain that objection.

Anything else, Ms. Flynn? [DEFENSE]: No. Your Honor. THE COURT: All right. * * * [PROSECUTOR]: Detective Jones—... — can you, by reviewing your case folder, tell us precisely when you had the conversation with Ms. Coleman? Detective, did you find—did you determine from your notes the precise date that you took the statement? ⁵⁰³ [WITNESS]: The date would be the 3rd, January the 3rd. Of 2000, the date of the report. [PROSECUTOR]: Okay.

Now directing your attention to the particular area of the report I’m going to show you, I’d ask you to read— Detective, the document which is marked for identification purposes only as State’s Exhibit 10, this is a—you’ve testified this is a summary of the statement she gave on or about January 3rd of 2000? [WITNESS]: Correct. [PROSECUTOR]: And are documents such as this one made in the ordinary course of business by you as a homicide detective? [WITNESS]: Yes, they are. [PROSECUTOR]: Are documents such as this one kept in the ordinary course of business by you as a homicide detective? [WITNESS]: Yes, they are. [PROSECUTOR]: Was this particular document made and kept in the ordinary course of your business, the investigation of this particular pair of murders? [WITNESS]: Yes. [PROSECUTOR]: Thank you. And directing your attention specifically to the sentence that begins “At” and ends with the following sentence, “excited,” can you please read that out loud? THE COURT: Well, before it gets read to the jury, can you move to put it in evidence—Ms. Flynn make her objection? [PROSECUTOR]: Well, Your Honor, we’ve agreed to do [it] this way. [DEFENSE]: I’m sorry, can we approach one more time? THE COURT: All right. ⁵⁰⁴ ❖ ❖ * [DEFENSE]: Your Honor, what the State is attempting to get in is a sentence—a statement made by the decedent to his mother.

I think under any circumstance that’s hearsay. The fact— THE COURT: What’s he say? [DEFENSE]: “I just ran into somebody I don’t need to see.” That’s hearsay. Whether or not it comes in through the officer or through the mother, it’s still hearsay. THE COURT: And you don’t think the business record exception— [DEFENSE]: It’s double hearsay.

THE COURT: You don’t think it’s an exception to the hearsay rule since it’s a business record? [DEFENSE]: Well, it wasn’t the decedent giving the statement, it’s the mother giving a hearsay statement to the police officer. So I don’t think just because she gives it to a police officer it cures the original hearsay that the statement was made by the decedent. And the mother couldn’t testify to it simply on the grounds of hearsay. So I’m not sure when—the recollection of it wasn’t complete.

She can’t get on the stand and say my son said this to me. And simply because she told the police officer that and it’s recorded at the time doesn’t cure the hearsay nature of his statement to her. THE COURT: I just ran into somebody I don’t need to see? [DEFENSE]: Right. THE COURT: One more try. [DEFENSE]: Despite the fact that she read the statement out in the hall, she can’t remember it.

Like, it—simply because she told the police officer what he said does not cure the nature of the hearsay. She can testify that he was upset, which she wasn’t able to do. She can testify that he ⁵⁰⁵ was in and out in a rush. She couldn’t testify that he changed his clothes, which she didn’t because she doesn’t remember.

But she cannot testify as to what he said to her, which is being offered for the truth of the matter, so— THE COURT: I will deny the objection—overrule the objection. The case may come down to—hearsay rules and—and the whole circumstances here. The testimony of the previous witness—she’ll be back again because—indicating that-very excited and— [PROSECUTOR]: Sergeant, directing your attention to State’s Exhibit 10 for identification purposes only— THE COURT: I think we are at the point where I suggested that I really don’t want it read unless it’s in evidence. [PROSECUTOR]: Oh, good point. Your Honor, I would offer, State’s 10 into evidence at this time.

THE COURT: All right. Continuing objection, Ms. Flynn? [DEFENSE]: Yes, Your Honor, and we also discussed a redaction. [PROSECUTOR]: Which I will do. THE COURT: Objection overruled. Go ahead.

(Whereupon, State’s Exhibit No. 10 was received into evidence.) [PROSECUTOR]: Thank you, Your Honor. [PROSECUTOR]: Detective, I’d like you to read out loud from “At approximately 4 to 5 p.m.” and stop at “excited,” if you would, please. [WITNESS]: Yes, ma'am. “At approximately 4 to 5 p.m., the victim ran into his home through the rear entrance, without a coat and a hat, then said, T just ran into someone I didn’t need to see.’ The victim said to his mother that he took off his hat and red coat to change his appearance to the person or persons. The victim was rushed and excited.” ⁵⁰⁶ Preservation The State energetically maintains that appellant failed to preserve “in part” his objection to some of the testimony at issue by failing explicitly to object to all of Detective Jones’s testimony. The State discounts the defense, specifically objecting to the testimony considered to be the more damaging to its case, viz. Dante’s statements to Ms. Coleman.

We disagree with the State. Counsel, as shown by the above-quoted testimony, vigorously contested those aspects of the detective’s testimony that rested upon statements collected from Ms. Coleman. Further, defense counsel voiced a “continuing objection” after the State offered into evidence Detective Jones’s record of the interview of Ms. Coleman, and, while losing that skirmish, saw to it that the State would introduce only a redacted version of the detective’s report. The defense appropriately objected to the evidence at issue in this appeal.

The overall hearsay issue has been adequately preserved. 8 Borchardt v. State, 367 Md. 91, 131 , 786 A.2d 631 (2001), cert. denied, 535 U.S. 1104 , 122 S.Ct. 2309 , 152 L.Ed.2d 1064 (2002); Graves v. State, 334 Md. 30, 37-38 , 637 A.2d 1197 (1994). Nature of the Hearsay Problem Initially, we must determine the nature of the asserted secondary hearsay present in the form of Dante’s statement, and then the primary hearsay consisting of Eva Coleman’s ⁵⁰⁷ interview, which was then recorded by Detective Jones. There are two approaches to the problem of hearsay. 9 One focuses on the purpose for which the evidence is offered: hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. This is a traditional definition of hearsay as articulated in Md. Rule 5-801(e).

The other focuses on the origin of the evidence: hearsay is evidence the probative force of which depends on the competency and credibility of a person other than the testifying witness. See Md. Rule 5-804(b)(5). “Generally, statements made out of court that are offered for their truth are inadmissible as hearsay, absent circumstances bringing the statements within a recognized exception to the hearsay rule.” Su v. Weaver, 313 Md. 370, 376 , 545 A.2d 692 (1988) (citing Kapiloff v. Locke, 276 Md. 466, 471 , 348 A.2d 697 (1975)). The Hearsay Rule is a rule of exclusion, and thus the proponent of the disputed evidence bears the burden of showing that the Rule does not apply. See Cassidy v. State, 74 Md.App. 1, 7-8 , 536 A.2d 666 , cert. denied, 312 Md. 602 , 541 A.2d 965 (1988).

No statement at issue here would offend the hearsay rule if the evidence was “offered for some purpose other than to prove the truth of the matter asserted therein[.]” See Ashford v. State, 147 Md.App. 1, 75 , 807 A.2d 732 (quoting Ali v. State 314 Md. 295, 304 , 550 A.2d 925 (1988)), cert. denied, 372 Md. 430 , 813 A.2d 257 (2002). At first blush, it may appear that Dante Brown’s statement to his mother, who in turn relayed it to Detective Jones, presents a prototypal “hearsay within hearsay” para ⁵⁰⁸ digm. See Ashford, 147 Md.App. at 73-74 , 807 A.2d 732 . But this problem is easily unscrambled.

We begin by accepting the trial court’s ruling that Dante’s statement constituted an excited utterance embraced by Rule 5—803(b)(2). But its admissibility lies not with the secondary hearsay (Dante’s exclamation to Eva Coleman) but with the primary hearsay that came after Detective Jones’s recitation of Ms. Coleman’s assertion of her deceased son’s words: “I just ran into someone I don’t need to see.” Statements made to an investigating officer are not hearsay unless and until they are offered into evidence for their truth. Daniel v. State, 132 Md.App. 576, 589 , 753 A.2d 545 , cert. denied, 361 Md. 232 , 760 A.2d 1106 (2000). 10 The State begrudgingly concedes that Detective Jones’s “testimony does appear to have been [hearsay].” The testimony is glaringly hearsay. Ms. Coleman’s remarks were offered, through Detective Jones, pellucidly for their substance and effect: to show that Dante was being “pursued by someone.” Indeed, appellant’s objection to the introduction of the hearsay is framed as a challenge to what it implies—Dante Brown did not take care of his drug debt—and not what it portrays— Dante was scared.

Thus, this out-of-court assertion was hearsay. This, however, is not dispositive of the issue. We must now determine whether any prejudice requires a new trial. Harmless Error Appellant correctly asserts that the introduction of Ms. Coleman’s statement through Detective Jones’s testimony was error.

We are nevertheless satisfied that the admission of ⁵⁰⁹ this hearsay was harmless beyond a reasonable doubt. 11 Given the extant record, we conclude on a number of grounds that the trial court’s lapse in giving such free rein to Detective Jones on the stand “could not possibly have influenced the verdicts.” See Borchardt, 367 Md. at 131 , 786 A.2d 631 (citing Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976)). See also Farewell v. State, 150 Md.App. 540 , 579 n. 17, 822 A.2d 513 (2003). First, the disputed statement, that Dante had just run into someone he wanted to avoid, is fairly innocuous by itself. We do not see this statement, taken alone, as necessarily indicating a more “compelling motive” for the murders than the fact that Dante may have insulted appellant’s mother—the reason he gave to Rene Knight and Bianca Young—a fact which, on the streets, may be a compelling reason for exacting revenge.

In addition, appellant must hurdle the prospect of waiver by failing to object to appellant’s two separate admissions, in his statement that was read into evidence, that he had been arrested on a CDS charge. See Williams v. State, 131 Md.App. 1, 26-27 , 748 A.2d 1 , cert. denied, 359 Md. 335 , 753 A.2d 1032 (2000). 12 Although appellant complains of the “double hearsay” in the form of Detective Jones’s testimony, he ⁵¹⁰ does not contest on appeal the admission of Eva Coleman’s testimony, which highlighted her concerns that Dante had a drug problem, that he had paid one person, “Little Glenn,” money for drugs, and that he left the house with more money. On cross-examination of Ms. Coleman, defense counsel specifically raised the issue of drug debts by suggesting that because Dante was a drug user, “he would have debts to drug dealers[.]” Ms. Coleman’s testimony, both on direct and on cross-examination, effectively conveys the same message as her hearsay statement, admitted through Detective Jones, to the effect that she was afraid that Dante would be harmed by “tpjersons to whom he had owed money to for drug debts.” 13 Alternatively, we conclude that, without Brown’s statement, the State presented a compelling case. The admissions by appellant to Rene Knight and Bianca Young provide sufficient evidence of guilt that would have permitted the jury to convict.

Their statements are in turn underpinned by the fact that police recovered one of the murder weapons from a room to which appellant had access in his house. Appellant’s statement, read into the transcript at trial, reveals that he was able to tell Pierre Easter the location of this handgun, and allowed his friend to take it in order to use it. We conclude that, based on our independent review of the record as a whole and convinced beyond a reasonable doubt, “there is no reasonable possibility that the [hearsay evidence ⁵¹¹ admitted in error] may have contributed to the rendition of the guilty verdict.” Dorsey, 276 Md. at 659 , 350 A.2d 665 .

II

Instructions and Inconsistent Verdicts Citing instructional error, appellant contests his conviction for conspiracy to commit murder. The trial court instructed the jury: The Defendant has also been charged with conspiracy to commit murder. Conspiracy is an agreement between two or more persons to commit a crime. In order to convict this Defendant of conspiracy, the State must prove that the Defendant entered into an agreement with at least one other person to commit the crime of murder and that the Defendant entered into the agreement with the intent that the murder be committed.

This instruction roughly tracks the language of the Maryland Criminal Jury Instructions. 14 Appellant’s attack is two-pronged. In his first prong, he deprecates the trial court’s instruction because it does not set forth the “required elements of premeditation, deliberation, and a specific intent to kill[.]” In his second prong, he argues that the prejudice from this incorrect charge is clear because in its confusion the jury rendered inconsistent verdicts— acquitting him of first degree murder of both victims and clearing him of using a handgun in the commission of a felony. Appellant then concludes that, because the trial judge failed to instruct on the requisite mental state for first degree murder, “the jury may well have believed that it could convict [him] of ⁵¹² conspiring to commit an unplanned and unpremeditated murder.” The State urges that we affirm. The State first interposes a preservation argument, pointing out that the defense failed to challenge the jury instructions at trial.

The government then proclaims that the guilty verdicts on conspiracy to commit first degree murder and murder in the second degree are not necessarily inconsistent with acquittals on the first degree murder and handgun counts. Finally, the State, humoring appellant’s assignment of error, avers in any event that we should not disturb the verdicts rendered on the basis of their inconsistency. Preservation We can speedily dispose of the State’s non-preservation argument. As Judge Davis has noted: The State suggests that defense counsel’s failure to object to the court’s instructions or to request an instruction on consistent verdicts precludes Beharry from complaining on appeal about the inconsistent verdicts.

See Md. Rule 4-325(e). We do not agree. As we explained in Jenkins v. State, 59 Md.App. 612, 620-21 , 477 A.2d 791 (1984), modified on other grounds, 307 Md. 501 , 515 A.2d 465 (1986) (regarding whether guilty verdicts of assault with intent to murder and assault with intent to maim were inconsistent): Ordinarily, a defendant’s failure to make a