MacK v. State

DAVIDSON, Judge. The primary question presented in this case is whether under Maryland Rule 4-325(c) 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 Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 36B(d) if found not guilty of a crime of violence as defined in Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 441(e). Maryland Rule 4-325(c) 1 provides in pertinent part: “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding____ The court need not grant a requested instruction if the matter is fairly ⁵⁸⁸ covered by instructions actually given.” (Emphasis added). Article 27, § 36B(d) 2 provides in pertinent part: “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____” (Emphasis added).

Article 27, § 441(e) 3 provides in pertinent part: “The term ‘crime of violence’ means ... assault with intent to commit any ... offense punishable by imprisonment for more than one year.” (Emphasis in original). On 29 July 1981, the petitioner, Verina Lee Mack, was charged in a multicount indictment with 1) assault with intent to murder; 2) assault with intent to maim; 3) assault and battery; 4) carrying a handgun; and 5) use of a handgun in the commission of a crime of violence (use of a handgun). During a jury trial held in the Circuit Court for Prince George’s County, the petitioner conceded that he had shot and injured the victim. The petitioner contended, however, that the shooting occurred in self-defense.

At the conclusion of the trial, the trial court instructed the jury in pertinent part as follows: “The State has to prove each and every element of each and every crime with which the defendant is charged. Now, in this case we have five counts____ [T]he lead count is assault with intent to murder, and others are related counts. This is what we call a multiple count indictment. There are five counts you will be deliberating about and you’re to consider each one of these counts ⁵⁸⁹ separate and distinct from the others.

In other words, you make up your mind on one count, then forget about what your judgment was and move on to the next count. So that you’re not being influenced by your own decision. You’re giving consideration on each separate count as if you were deciding that count alone. “Later on I’m going to give you legal definitions of the particular crimes.... “And when I give you the legal definitions, I will tell you that is binding on you. You have to apply the law to the case as I give you the law with respect to the definitions of the law. “Once you have determined what happened in the case, then you apply the law as I define the law.... [W]e also have the final count, which is the use of a handgun in the commission of a crime of violence. [WJhere you find there has been a commission of a crime of violence, assault with intent to murder and assault with intent to maim are crimes of violence, in fact. “Assault and battery does not fall within that definition, so your first two counts, assault with intent to murder, assault with intent to maim are crimes of violence.

Assault and battery is not considered a crime of violence. “Now, did the defendant use a handgun in the commission of a crime of violence? Because the mere use of a handgun where there are one of those violence crimes is in and of itself a separate and distinct crime. ” (Emphasis added). Thereafter, the following colloquy took place at the bench: “MR. PARKER [Defense Counsel]: I ask the Judge to instruct if the defendant is found [not] guilty of assault with intent to murder or maim, then he cannot ⁵⁹⁰ be found guilty of the use of a handgun in the commission of a violent crime.

I don’t believe that is quite clear. I think that’s important. “MS. LIEBERMAN [State’s Attorney]: I don’t think you can do that, Your Honor. “THE COURT: You have all of the counts listed. They give a verdict on all counts or how about the incident involving the guy?

Is that assault and battery? “MR. PARKER: Assault and battery does not constitute a violent crime. “THE COURT: I told them that. “MR. PARKER: I just think—one way they can find assault, I mean with the use of a handgun in the commission of a violent crime is if they find count one or two. “THE COURT: I instructed them. I made that very clear to them. “MR.

PARKER: Very well, Your Honor. I just ask that you specify it as I’ve asked. “THE COURT: I think I have.” (Emphasis added). On 28 January 1982, the jury found the petitioner guilty of assault and battery and carrying a handgun, neither of which is a crime of violence as defined in Art. 27, § 441(e). The jury found the petitioner not guilty of assault with intent to murder and assault with intent to maim, both of which are crimes of violence as defined in Art. 27, § 441(e).

Notwithstanding those verdicts, the jury found the petitioner guilty of use of a handgun. Subsequently, the petitioner filed a motion for a new trial. At a hearing on that motion, the following colloquy took place: “MR. PARKER: ...

I asked that you reinstruct as to, if the defendant was found not guilty of count 1 and count 2, that, in fact, he could not be found guilty of count 5. ... I believe, had that instruction been given, that my client would not be facing the mandatory sen ⁵⁹¹ tence he is facing today, which is the 5 years for the use of a handgun in the commission of a crime of violence, and for that reason, I would ask that you grant us a new trial ... on the count, which is count 5, as to the use of a handgun in the commission of a crime of violence, I believe if the motion for new trial on that particular count were granted, that justice would be done, and that a reasonable sentence, if any, or a suspended sentence with probation could be given as to the other two charges____ “THE COURT: ... With respect to the last argument in your motion for a new trial, the legislature has seen fit to make an independent and separate crime out of use of a handgun in the commission of a crime of violence. As I understand your argument, if the jury found him not guilty on the crimes of violence, how could they find him guilty on use of a handgun in a crime of violence.

This has happened before. It is, in all probability, a compromise verdict, and you and Ms. Lieberman and me, none of us know what went on in that jury room, in the deliberations of the jury. There have been a number of cases that have upheld a conviction on use of a handgun in a crime of violence where the crime of violence, itself, there has been an acquittal. They have indicated it is a separate and distinct crime....” (Emphasis added).

On 10 March 1982, the petitioner was sentenced to a term of seven years for assault and battery; a concurrent term of 30 days for carrying a handgun; and a concurrent term of five years for use of a handgun. The petitioner appealed to the Court of Special Appeals. In an unreported per curiam opinion, that Court affirmed the judgments of the trial court. Mack v. State, No. 535, September Term, 1982, filed 10 February 1983.

The petitioner filed a petition for a writ of certiorari that we granted. We shall affirm the judgments of the Court of Special Appeals. ⁵⁹² I This Court has consistently held that the requirements of Md.Rule 757 b (now Md.Rule 4-325(c)) are mandatory and that under that Rule a trial judge must give a requested instruction that correctly states the applicable law and that has not been fairly covered in instructions actually given. Indeed, the failure to give such an instruction constitutes error. Lansdowne v. State, 287 Md. 232, 239 , 412 A.2d 88, 91 (1980).

Here, the petitioner requested an instruction that “if the defendant is found [not] guilty of assault with intent to murder or maim, then he cannot be found guilty of the use of a handgun in the commission of a violent crime.” 4 In deciding whether the trial court was required to give such an instruction, we must determine whether the requested instruction constitutes a correct statement of the law; whether it is applicable under the facts and circumstances of this case; and whether it has been fairly covered in the instructions actually given. This Court’s decision in Ford v. State, 274 Md. 546 , 337 A.2d 81 (1975), establishes that the requested instruction constitutes a correct statement of the law. In Ford , the accused was charged in a multicount indictment with, insofar as here relevant, 1) robbery with a dangerous and deadly weapon; 2) robbery; and 3) use of a handgun. The jury found the accused not guilty of robbery with a dangerous and deadly weapon, and robbery, both crimes of violence as defined in Art. 27, § 441(e).

Notwithstanding these verdicts, the jury found the accused guilty of use of a handgun. In Ford , this Court considered the question whether the conviction of use of a handgun should be reversed because it was inconsistent with the jury’s finding that the ⁵⁹³ accused was not guilty of committing a crime of violence. 5 In resolving this question, the Court initially examined the relationship between the commission of a crime of violence and use of a handgun during the commission of that crime. There, Judge Digges, writing for a majority of the Court, said: “[Sjection 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. [W]e 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.” Ford, 274 Md. at 550-51 , 337 A.2d at 84-85 (footnote omitted) (emphasis added). Thus, this Court established as a matter of substantive law that use of a handgun in the commission of a crime of violence is a separate and distinct crime from the underlying crime of violence and that in order to convict an accused of use of a handgun in the commission of a crime of violence it is necessary that the trier of fact find beyond a reasonable doubt that the accused committed a crime of violence.

In essence, this Court recognized that when an accused is charged in a multicount indictment with the commission of a crime of violence and use of a handgun in the commission of such a crime, a verdict of guilty of the crime of violence is a prerequisite to a verdict of guilty of use of a handgun in the commission of such a crime. Additionally, in Ford , this Court pointed out that if an accused is found guilty of both the crime of violence and use of a handgun in the commission of such a crime, the ⁵⁹⁴ verdicts are consistent and they can both stand. If, however, there is a verdict of not guilty of the crime of violence and a verdict of guilty of use of a handgun in the commission of such a crime, the verdicts are inconsistent. There, this Court said: “[WJhen 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.” Ford, 274 Md. at 551 , 337 A.2d at 84-85 .

More particularly, with respect to inconsistent verdicts, this Court said: “[VJerdict inconsistency has been considered in several cases, and has been consistently rejected as forming the basis for voiding a conviction.” Ford, 274 Md. at 552 , 337 A.2d at 85 . We further recognized that the rationale underlying the principle that inconsistent verdicts can stand was expressed in Dunn v. United States, 284 U.S. 390, 393-94 , 52 S.Ct. 189, 190-91 , 76 L.Ed. 356 (1932), where Justice Holmes, writing for the United States Supreme 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.” Applying this rationale, this Court in Ford determined that although the jury’s verdict of guilty of use of a handgun in the commission of a crime of violence was inconsistent with its verdict of not guilty of the crimes of violence, the inconsistent verdicts could stand. Ford, 274 Md. at 553 , 337 A.2d at 86 .

Manifestly, this holding, premised upon the unique role of the jury, had no impact whatsoever upon the ⁵⁹⁵ substantive law explicated by the Court. Accordingly, the instruction requested in the instant case, which in essence would have explained that a verdict of guilty of a crime of violence is a prerequisite to a verdict of guilty of use of a handgun in the commission of such a crime, constituted a correct statement of the law. We must next consider whether under the facts and circumstances of this case the requested instruction was applicable within the meaning of Rule 4-325(c). Generally, each count of an indictment is regarded as if it were a separate indictment and the jury is required to determine whether to make a finding of guilt on each count “without regard to the disposition of other counts.” Williams v. State, 204 Md. 55, 64 , 102 A.2d 714, 718 (1954); see Poole v. State, 295 Md. 167, 174-75 , 453 A.2d 1218, 1223 (1983); Ford, 274 Md. at 552 , 337 A.2d at 85 .

However, if this general rule is applied when there is a multicount indictment under which a verdict of guilty of a crime of violence is a prerequisite to a verdict of guilty of use of a handgun in the commission of such a crime, the jury may be misled and may render inconsistent verdicts—not guilty of the crime of violence and guilty of use of a handgun in the commission of such a crime. Under such circumstances, although the verdict of guilty of use of a handgun would be contrary to law, it nonetheless could stand. In order to avoid this deleterious result, the possibility of inconsistent verdicts must be minimized. This goal can be accomplished by a modification of the general rule when there is a multicount indictment that charges a crime of violence and use of a handgun in the commission of such a crime, as well as other crimes.

Under circumstances such as those presented in this case, with respect to those counts other than the count charging use of a handgun, the jury should be required to determine guilt on each count without regard to the disposition of the other counts. With respect to the count charging use of a handgun, the jury should be required to consider the disposition of the counts charging ⁵⁹⁶ crimes of violence. Accordingly, when there is a multicount indictment that charges a crime of violence and use of a handgun in the commission of such a crime, as well as other crimes, a requested instruction explaining, in essence, that in order to find an accused guilty of use of a handgun in the commission of a crime of violence, there must be a finding that the accused was guilty of a crime of violence is applicable within the meaning of Md.Rule 4-325.(c) and should be given. Here the record shows that the petitioner was charged in a multicount indictment with two crimes of violence and use of a handgun in the commission of those crimes, as well as other crimes.

Under these circumstances, the requested instruction, which in essence explained that a verdict of guilty of either of the charged crimes of violence was a prerequisite to a verdict of guilty of use of a handgun in the commission of such crimes, was applicable. Accordingly, the trial court was required to instruct the jury that the petitioner could not be found guilty of use of a handgun if found not guilty of either of the charged crimes of violence. In reaching this result, we recognize that some few courts in other states in which inconsistent verdicts are permitted have determined that an instruction directing the jury to render consistent verdicts need not be given. State v. Morgan, 179 Conn. 617, 620 , 427 A.2d 429, 431 (1980); State v. Barnes, 30 N.C.App. 671, 673-74 , 228 S.E.2d 83, 85 (1976); Commonwealth v. Stegmaier, 247 Pa.Super. 159, 161 , 371 A.2d 1376, 1377 (1977).

The rationale underlying