McNeal v. State

⁵¹³ JAMES P. SALMON (Retired, Specially Assigned), J. Daniel A. McNeal was convicted by a jury in the Circuit Court for Baltimore City of unlawful possession of a regulated firearm by a prohibited person, and resisting arrest. The jury acquitted McNeal of wearing, carrying, or transporting a handgun. McNeal presents four questions, for our review, which he phrases as follows: 1. Did the trial court err in permitting inconsistent verdicts to stand over defense counsel’s objection? 2.

Did the trial court err in admitting extrinsic evidence of a prior inconsistent statement made by the Appellant when the Appellant admitted having made the statement and explained why he had made it? 3. Did the trial court err in refusing to instruct the jury that the State was required to prove a mens rea inconsistent with innocent possession of the handgun? 4. Was the seven-year sentence imposed for resisting arrest illegal because 1) it was imposed for a common law crime that no longer existed at the time of Appellant’s trial; and because 2) it exceeded the statutory maximum for that offense? I. Evidence Produced By The State On October 15, 2008, Baltimore City Police Officer Michael Gold saw appellant in the 100 block of Poplar Grove Street and decided to interview him.

Officer Gold asked if he could speak to appellant and the latter consented. Officer Gold next asked appellant “if he had anything on him that he shouldn’t have.” Appellant replied: “Yes. I have a gun in my left front pants pocket.” Officer Gold searched appellant and recovered a .9 millimeter Luger from appellant’s left front pants pocket. Officer Gold then told appellant he was under arrest.

When a fellow officer attempted to handcuff appellant, appellant resisted, got free, and fled. A chase ensued and appellant was captured. ⁵¹⁴ Following Officer Gold’s testimony, the parties stipulated that McNeal had previously been “convicted of a crime that would prohibit his possession of a firearm.” II. A. First Issue The jury convicted McNeal of unlawful possession of a regulated firearm in violation of Md.Code (2003, 2008 Supp.), Section 5-133(b) of the Public Safety Article (“PS”), 1 and acquitted him of wearing, carrying, and transporting a handgun in violation of Md.Code (2002, 2008 Supp.), Section 4-203 of the Criminal Law Article (“CL”). 2 After the jury announced its verdict but before the jury had harkened to its verdict, defense counsel objected and, at the bench argued that the verdicts as to wearing, carrying, or transporting a handgun (acquittal) and possession of a handgun by a prohibited person (guilty) were inconsistent and that the jury should therefore be sent back to the jury room for further deliberation to resolve the inconsistency. The prosecutor conceded that the verdicts were factually inconsistent but claimed that they were not legally inconsistent.

The trial judge agreed with the prosecutor and accepted the verdicts. McNeal contends on appeal that, “[i]n light of the manifest inconsistency in the verdicts, the [court] erred in refusing to either strike the guilty verdict for possession of a regulated firearm or return the counts to the jury for further deliberation.” Price v. State, 405 Md. 10 , 949 A.2d 619 (2008), is instructive. Following his trial on “various drug ... and ... ⁵¹⁵ firearms offenses,” Price was “acquitted ... of all drug trafficking charges” and “two firearms counts charging possession of a regulated firearm after having been convicted of a prior felony, and unlawfully carrying or transporting a handgun.” Id. at 13, 15 , 949 A.2d 619 . “[T]he jury found Price guilty of possession of a firearm during and in relation to a drug trafficking crime, under circumstances constituting a nexus to the drug trafficking crime.” Id. On appeal, Price contended that “the Circuit Court erred when it refused to strike the conviction for possession of a firearm during and in relation to a drug trafficking crime because the conviction was inconsistent with the acquittals on all counts charging drug trafficking crimes.” Id. at 16-17, 949 A.2d 619 .

Reversing Price’s conviction, the Court of Appeals held that, “in criminal jury trials ..., inconsistent verdicts shall no longer be allowed.” Id. at 29, 949 A.2d 619 . In a concurring opinion, in which Judge Battaglia joined, Judge Harrell said: .... I think it important to note explicitly that the Majority’s holding applies only to “legally inconsistent” verdicts, not “factually inconsistent” verdicts. The Court should continue to recognize factually or “logically” inconsistent verdicts rendered by juries in criminal cases.

Id. at 35, 949 A.2d 619 (internal citations, footnotes, and quotations omitted). Since Price, this Court has adopted albeit in dicta 3 the distinction between factual inconsistency and legal inconsistency as explained by Judge Harrell in his concurrence in Price. See Tate v. State, 182 Md.App. 114, 130-31 , 957 A.2d 640 , cert. denied, 406 Md. 747 , 962 A.2d 373 (2008). Judge Charles E. Moylan, Jr., speaking for this Court in Tate , quoted Judge Harrell’s explanation and said: ⁵¹⁶ A factually inconsistent verdict is one where a jury renders “different verdicts on crimes with distinct elements when there was only one set of proof at a given trial, which makes the verdict illogical.” Ashlee Smith, Comment, Vice-A-Verdict: Legally Inconsistent Jury Verdicts Should Not Stand in Maryland, 35 U. BALT.

L. REV. 395, 397 n. 16 (2006). The feature distinguishing a factually inconsistent verdict from a legally inconsistent verdict is that a factually inconsistent verdict is merely illogical. By contrast, a legally inconsistent verdict occurs where a jury acts contrary to a trial judge’s proper instructions regarding the law. The difference between the two is perhaps best illustrated by examples from other jurisdictions.

Assume a legally intoxicated or otherwise reckless driver causes a head-on collision, killing on impact the driver and passenger of the other car. The intoxicated driver is charged with two counts of vehicular homicide. The jury convicts the defendant of vehicular homicide as to the death of the driver of the other car, but finds the defendant not guilty of the same crime with regard to the death of the passenger. Such a result would constitute factually inconsistent verdicts. 405 Md. at. 35-36 [ 949 A.2d 619 ] (emphasis supplied).

A legal inconsistency, by contrast, occurs when the crime for which a defendant is acquitted is, in its entirety, a lesser included offense within the greater inclusive offense for which a defendant is convicted. The commission of the greater crime cannot, as a matter of law, take place without the commission of the lesser crime. The lesser crime is a required element of the greater. The acquittal of the lesser crime precludes the finding of that required element of the greater crime for which the defendant was convicted.

That is legal, as opposed to factual, inconsistency. It is something that does not involve speculation about possible or probable factual findings. ’ It is something that can be explained in algebraic terms. The Price case itself contained a set of factually inconsistent verdicts as well as a set of legally inconsistent verdicts. ⁵¹⁷ The concurring opinion pointed out that the factual inconsistency would not, in and of itself, have been an occasion for reversing the conviction. The verdicts in the present case also contain a factual inconsistency.

Price was acquitted of being a felon in possession of a handgun, but convicted of possessing a handgun in the course of drug trafficking. There was no dispute at trial as to Price’s prior felony convictions. Therefore, it is illogical for the jury to find that Price is guilty of possessing a firearm in the course of drug trafficking without possessing a firearm as a convicted felon. Despite the illogical verdict, this does not rise to the level of a legally inconsistent verdict.

Thus, if this were the only grounds for challenging Price’s conviction for possession of a handgun in the course of drug trafficking, his conviction should be affirmed. 405 Md. at 37 [ 949 A.2d 619 ] (emphasis supplied). The majority opinion itself eschewed any reliance on this factual inconsistency. Id. at 131-32, 957 A.2d 640 . We adopt as the holding in this case what Judge Moylan said in dicta in Tate : Our holding is dispositive of the first issue raised by appellant because the verdicts were not legally inconsistent.

The crime for which appellant was acquitted, and the crime for which he was convicted, each contained elements that the other did not. While the verdicts were factually inconsistent, reversal of the conviction on that ground is not warranted. A violation of § 5-133 of the Public Safety Article requires proof of a prior disqualifying conviction; a violation of § 4-203 of the Criminal Law Article does not. A violation under Criminal Law section 4-203 requires that the weapon be carried on the defendant’s person or in a vehicle traveling on a highway, waterway, or airway generally used by the public; Under section P.S. § 5-133, other forms of possession are also forbidden.

As the jury was instructed, possession (for purposes of section 5-133 of the Public Safety Article) may be ⁵¹⁸ “actual or indirect ... exclusive or joint possession.” Thus the convictions were not legally inconsistent. In this appeal appellant does not contend that the convictions were legally inconsistent. Instead, appellant argues that we should not recognize the distinction between a legally inconsistent verdict, and a factually inconsistent verdict. Appellant does not even cite Tate , much less try to distinguish it.

For the reasons enunciated in Tate , we hold that the trial judge did not err in declining to set aside the conviction for possession of a handgun by a prohibited person simply because that conviction was factually inconsistent with the jury’s acquittal of appellant for wearing, carrying, or transporting a handgun.

III

Prior to trial, McNeal moved to suppress “all evidence obtained by police authorities” and “all statements and/or confessions taken from [McNeal] by police authorities.” At a hearing on the motion, McNeal, testified, in pertinent part, as follows: [DEFENSE COUNSEL:] Prior to the time that the police came, did something unusual happen to you— ... with regard to this gun? [McNEAL:] Yes. Well, as I was coming from Poplar Grove and Winchester, I was walking up the street. I found the gun on the sidewalk and I picked the gun up and put it in my pocket, because I seen [sic] there was other people walking up and down the street and there was children out there; and I have four children of my own. I picked the gun up and I was going to turn it into the police department or take it down to homicide to, either, possibly get some money for it, or just take it up the street because there was [sic] children up there. ⁵¹⁹ [DEFENSE COUNSEL:] Now, from the time you put that gun in your pocket until the time the police officer approached you, how much time elapsed? [McNEAL:] Maybe five, ten minutes. [DEFENSE COUNSEL:] And, during that five, ten minutes, were you walking, or were you all standing there? [McNEAL:] I continued to walk.

I would not stand up there with no [sic] gun on me. [DEFENSE COUNSEL:] So, the place where the officer stopped you was how far from where you actually found the gun? [McNEAL:] I’d say about afoot. (Emphasis added.) McNeal also testified at the suppression hearing that when he found the gun he was “in the company” of two other people but, after finding the gun, he said nothing to his companions. At trial, appellant elected to testify. Insofar as is here pertinent, what appellant testified to at trial and what counsel did (or contended) during the course of appellant’s testimony was accurately summarized by the State, in its brief, as follows: 4 [Appellant testified at trial] that he found a handgun in the grass near a bus stop, and — for the benefit of the children, — put the gun in his pocket and walked the distance of “two or three houses” along Poplar Grove Street before police stopped him.

On cross-examination, McNeal stated that he had been walking alone with the gun in his pocket for two or three minutes before the police stopped him. At that point, the State advised the court that it wished to impeach McNeal with his prior statements at a motions hearing. The court allowed it, with no objection from McNeal’s attorney. The prosecutor showed McNeal a copy of the transcript of his testimony at the motions hearing, and asked McNeal if ⁵²⁰ he had previously stated that he was walking with two other people when he was arrested.

McNeal flatly denied having said that. The portion of the transcript in which McNeal stated that he was walking “between two other people” as he proceeded down Poplar Grove Street was then read to McNeal. The prosecutor [next] read a portion of the transcript from the motion’s hearing where McNeal stated that “five or ten minutes” elapsed between picking up the gun and being arrested. Another passage was read wherein McNeal stated that the distance from where he found the gun to where he was arrested was “one foot.” McNeal explained to the jury that he had his “measurements mixed up” and also “[t]he time was mixed up.” On redirect, McNeal’s attorney asked McNeal to give his most accurate answer as to the time and distance that separated his discovery of the gun from his arrest.

McNeal reiterated that it was a “couple of minutes” and “two or three houses” from where he picked up the gun to where police stopped him. His attorney then asked him: Q. So, if you did say, and I don’t know if you did or not. But if you did say one foot, what was that all about? A. It was just the measurements was mixed up.

Like I said, I wasn’t out there taking no — with no tape measurer [sic] measuring no time from where they stopped me, none of that. Q. Do you remember saying one foot? Do you recall using that expression? A. I could have said it.

(Emphasis added.) When the State sought to admit a redacted transcript of the prior motions hearing testimony, McNeal’s attorney objected on the grounds that “if he admits saying it, then that transcript doesn’t go in.” The State countered that the statement was admissible as “a prior inconsistent statements[sic].” McNeal’s attorney again objected, arguing ⁵²¹ “[w]hat is the inconsistency? He didn’t deny that he said a foot.... He’s admitted it.” 521 (Reference to Record Extract omitted.) Appellant argues: The trial judge erred in admitting extrinsic evidence of a prior inconsistent statement made by the appellant when the appellant admitted having made the statement and explained why he had made it. In support of that argument appellant relies on Md. Rule 5-613, which reads: (a) Examining witness concerning prior statement.

A party examining a witness about a prior written or oral statement made by the witness need not show it to the -witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it. (b) Extrinsic