McNeal v. State

⁴⁵⁸ HARRELL, J. This case beckons us to examine our opinion in Price v. State, 405 Md. 10 , 949 A.2d 619 (2008), in which we broke with the majority of jurisdictions nationwide and our own jurisprudence to conclude clearly that legally inconsistent jury verdicts in criminal cases were prohibited henceforth in Maryland. The concurring opinion in Price went to some lengths to explain that the scope of the Court’s opinion should be read to extend only to legally inconsistent jury verdicts, but not to factually inconsistent jury verdicts. 405 Md. at 35 , 949 A.2d at 634 (Harrell, J., concurring). A legally inconsistent verdict is one where the jury acts contrary to the instructions of the trial judge with regard to the proper application of the law. Id.

Verdicts where a defendant is convicted of one charge, but acquitted of another charge that is an essential element of the first charge, are inconsistent as a matter of law. 1 Id. Factually inconsistent verdicts are those where the charges have common facts but distinct legal elements and a jury acquits a defendant of one charge, but convicts him or her on another charge. 2 Id. The latter verdicts are illogical, but not illegal. Id.

Petitioner, Daniel A. McNeal, was convicted by a jury of possessing a handgun after conviction of a disqualifying crime but, in the same trial, acquitted of wearing, carrying, or transporting a handgun. McNeal urges that the ⁴⁵⁹ Court’s opinion in Price prohibits these factually inconsistent jury verdicts. Rather, we adopt as our holding here the thrust of the concurring opinion in Price, that jury verdicts which are illogical or factually inconsistent are permitted in criminal trials for reasons we shall explain. I. FACTUAL AND PROCEDURAL BACKGROUND On 15 October 2008, McNeal was standing on a sidewalk in the 100 block of Poplar Grove Street, in the City of Baltimore, when four police officers approached him. 3 Officer Gold, after observing what he believed to be suspicious behavior by McNeal, asked McNeal if he had “anything he shouldn’t have” (i.e., guns, knives, or drugs).

McNeal responded forthrightly that he had a gun in his left front pants pocket. Officer Gold removed from McNeal’s pocket a 0.9 millimeter Luger, with nine live rounds of ammunition in the magazine. Officer Allen told him that he was under arrest and attempted to place him in handcuffs. McNeal pulled away and ran down Poplar Grove Street.

Sergeant Carterbea chased McNeal and used a Taser in an attempt to detain him. McNeal recovered quickly from the “tasing” and resumed the foot race. The officers chased him into a nearby alley, where he was apprehended finally. McNeal was charged with: 1) unlawful possession of a regulated firearm in violation of Maryland Code (2003, 2008 Supp.) Public Safety Article, § 5 — 133(b)(1); 4 2) wearing, carrying, or transporting a handgun in violation of Maryland ⁴⁶⁰ Code (2002, 2012 Repl.Vol., 2008 Supp.), Criminal Law Article, § 4-203; 5 and 3) resisting arrest in violation of Criminal Law Article, § 9-408. 6 At his jury trial in the Circuit Court for Baltimore City in 2009, McNeal explained that he saw the gun laying in a grassy area next to the sidewalk and picked it up to prevent children or other passers-by from recovering the weapon.

After collecting the gun and placing it in his pocket, McNeal testified further that he walked for a few blocks before the police confronted him. His trial testimony as to where the gun was located when he picked it up, how far he was from the gun’s original location when the police approached him, and whether he was alone or with other people differed from his statements made at a prior motions hearing in the case. The State employed these inconsistencies to impeach McNeal’s credibility during cross-examination at trial. McNeal’s explanation for why he had the gun in his pocket was that his intent was to turn in the handgun to the police in order to protect the public and possibly obtain reward money.

The parties stipulated to the introduction of a crime lab report that concluded the recovered handgun was operable. 7 The jury returned a verdict finding McNeal guilty of possessing a regulated firearm after his prior conviction of a disqualifying crime and resisting arrest. The jury, however, concluded that McNeal was not guilty of wearing, carrying, or transporting a handgun. After the verdict was read, but prior ⁴⁶¹ to the jury’s harkening, McNeal objected timely to the alleged inconsistent verdicts and requested the case be sent back to the jury to resolve the inconsistency. The State argued that, under Pnce, only legally inconsistent verdicts were prohibited and the jury verdict in McNeal’s case was, at worst, a factually inconsistent one only.

The trial judge agreed with the State. McNeal appealed timely to the Court of Special Appeals. A panel of the intermediate appellate court, in an unreported opinion, vacated the sentence for resisting arrest, but otherwise affirmed the trial court’s judgment. The State filed a Motion Requesting Publication of an Unreported Opinion, which the Court of Special Appeals granted.

McNeal v. State, 200 Md.App. 510 , 28 A.3d 88 (2011). In McNeal’s direct appeal, the Court of Special Appeals adopted as its holding the considered dicta from Tate v. State, 182 Md.App. 114, 130-31 , 957 A.2d 640, 649 (2008), which quoted extensively from the concurring opinion in Price. McNeal, 200 Md.App. at 515-16 , 28 A.3d at 90-91 . The concurring opinion in Price concluded that factually inconsistent verdicts were illogical, but not prohibited in the same manner as legally inconsistent verdicts.

Id. Thus, the intermediate appellate court upheld McNeal’s guilty verdict because the inconsistency between an acquittal for wearing, carrying, or transporting a handgun and a conviction for possession of a handgun after prior conviction of a disqualifying crime was based on the jury’s conclusions of fact, not of law. McNeal, 200 Md.App. at 517-18 , 28 A.3d at 92 . 8 McNeal filed timely a petition for a writ of certiorari, which we granted, McNeal v. State, 424 Md. 55 , 33 A.3d 981 (2011), to consider the question: Should this Court’s decision in Price v. State, 405 Md. 10 , 949 A.2d 619 (2008), holding that inconsistent verdicts are no longer allowed in Maryland, apply to verdicts which are ⁴⁶² factually inconsistent as well as those which are legally inconsistent? We shall hold that the Court’s opinion in Price does not apply to jury verdicts in criminal cases that are merely inconsistent factually, illogical, or “curious.” In doing so, we preserve the historic role of the jury as the sole fact-finder in criminal jury trials.

II

DISCUSSION This case presents us with a question of law and, as such, we review the trial court’s decision under a non-deferential appellate standard. Parker v. State, 408 Md. 428, 437 , 970 A.2d 320, 325 (2009). A. The Price Case In Price , Maryland parted ways with the Supreme Court’s long-standing jurisprudence allowing inconsistent jury verdicts. See United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984).

In Price , Baltimore City police officers, conducting surveillance of an apartment complex where drugs were known to be sold, observed Lawrence Price standing in a breezeway with approximately 15 other persons. Price, 405 Md. at 12-13 , 949 A.2d at 621 . The officers observed the people around Price, but not Price himself, receiving cash and, in return, dispensing small objects. Price, 405 Md. at 13 , 949 A.2d at 621 .

After observing these perceived drug transactions, the officers called for back-up and approached the breezeway. Id. Everyone fled. Id.

Price and another man ran to the third floor of an apartment building in the complex and locked themselves inside an apartment. Id. Because the man running with Price dropped along their route what the officers thought were drugs, they requested a key from the apartment manager in order to investigate further. Id.

The officers entered the apartment and arrested Price, who threw to the floor a bag containing a handgun and cash. Id. ⁴⁶³ Price was charged with 18 counts of drug and firearm charges. Id. Three of the charges were drug trafficking crimes, including possession with the intent to distribute cocaine, heroin, and marijuana.

Price, 405 Md. at 14 , 949 A.2d at 621 . Nine of the charges charged conspiracies with intent to distribute or possess heroin, cocaine, or marijuana. Id. Price was charged also with possessing a firearm during and in relation to a drug trafficking crime, possession of a regulated firearm after being convicted previously of a disqualifying crime, and unlawfully carrying or transporting a firearm.

Price, 405 Md. at 14 , 949 A.2d at 621-22 . Rounding out the array were charges of simple possession of marijuana, cocaine, and heroin. Price, 405 Md. at 14 , 949 A.2d at 622 . Among the jury instructions given at trial, the judge instructed the jury that it could find Price guilty of possessing a firearm during and in relation to a drug trafficking offense only if it convicted him also of one of the drug trafficking offenses.

Id. The jury acquitted Price of the drug trafficking charges and conspiracies. Price, 405 Md. at 15 , 949 A.2d at 622 . Price was acquitted also of the possession of a regulated firearm after conviction for a disqualifying felony and the unlawful wearing, carrying, or transporting of a firearm charges.

Id. In spite of the trial judge’s instruction, however, the jury convicted Price of possession of a firearm during and in relation to a drug trafficking crime. Id. Price was convicted also of the simple drug possession charges.

Id. Price moved to strike the guilty verdicts contending that they were inconsistent impermissibly. Id. The trial court, after receiving legal memoranda on the issue from both parties, denied Price’s motion because prior cases from this Court and the federal courts allowed inconsistent verdicts generally.

Id. Price appealed timely to the Court of Special Appeals, which upheld the inconsistent verdicts. Price, 405 Md. at 17 , 949 A.2d at 623-24 . We approached Price’s appeal by accepting the premise that there was theretofore a general rule allowing inconsistent verdicts in Maryland.

Price, 405 Md. at 18-21 , 949 A.2d at 624-26 . The Court noted the historic role of the jury in our ⁴⁶⁴ judicial system and the various explanations for inconsistent verdicts, including juror lenity, mistake, or compromise. Price, 405 Md. at 18-19 , 949 A.2d at 624 . Judge Eldridge, writing for the Court in Price, noted several cases from this Court that upheld inconsistent verdicts.

Price, 405 Md. at 18-19 , 949 A.2d at 624 (citing, among others, State v. Williams, 397 Md. 172, 189 , 916 A.2d 294, 305 (2007); Wright v. State, 307 Md. 552, 576 , 515 A.2d 1157, 1169 (1986); Shell v. State, 307 Md. 46, 54 , 512 A.2d 358, 362 (1986); Galloway v. State, 371 Md. 379, 408 , 809 A.2d 653, 671 (2002)). The Court observed, however, that there also were recognized exceptions to the general rule when inconsistent verdicts were disallowed, including cases where inconsistent verdicts arose in the context of rulings in a bench trial or a trial where some counts were submitted to the trial judge and some to the jury. Price, 405 Md. at 19 , 949 A.2d at 624 -25 (citing Williams, 397 Md. at 189-90 , 916 A.2d at 305 ; Shell, 307 Md. at 55 , 512 A.2d at 363 ; Johnson v. State, 238 Md. 528, 541-43 , 209 A.2d 765, 771-72 (1965)). In addition to cataloging the exceptions, Price critiqued that Maryland courts applied inconsistently the general rule, sometimes disallowing some inconsistent verdicts in some criminal trials. 405 Md. at 20 , 949 A.2d at 625 (citing, among others, Shell, 307 Md. at 55 , 512 A.2d at 362 ; Johnson, 238 Md. at 541 , 209 A.2d at 771 ; Stuckey v. State, 141 Md.App. 143 , 157 n. 3, 784 A.2d 652 , 660 n. 3 (2001)).

The discretionary power of the trial court to disallow inconsistent jury verdicts was delved into in Price, 405 Md. at 21 , 949 A.2d at 626 (citing Mack v. State, 300 Md. 583, 599-600 , 479 A.2d 1344, 1352 (1984)). Quoting from its opinion in Mack , the Court reiterated “it is the duty of a jury to decide a criminal case according to established rules of law, however, the trial court is empowered to set aside the verdict when the jury misapplies the law.” Id. Inconsistent jury verdicts are contrary to the law, “contrary to the trial court’s instructions,” and granting of relief “is within the discretion of the trial court.” Id. The Court was concerned, however, that the holding in Mack did not supply criteria to trial judges as to how and when inconsistent verdicts may be accepted.

Id. The ⁴⁶⁵ Court noted also our prior expression of intolerance for inconsistent jury verdicts in civil actions, even though we left open there the question of whether the Court would prohibit inconsistent verdicts in a criminal context. Price, 405 Md. at 21 , 949 A.2d at 626 (citing S. Mgmt. Corp. v. Taha, 378 Md. 461, 467 , 836 A.2d 627, 630 (2003)).

Of persuasive force to the Court seemed to be the reasoning supporting another state’s common law prohibition of inconsistent jury verdicts in criminal trials, quoting DeSacia v. State, 469 P.2d 369, 377 (Alaska 1970), which explained that there is “no basis to assume ... that inconsistent verdicts are the product of a jury’s disposition toward treating the accused leniently; nor can we see a basis for assuming that, in allowing inconsistent jury verdicts in criminal trials to stand, we run only ‘the risk that an occasional conviction may have been the result of compromise.’ The truth is simply that we do not know, nor do we have any way of telling how many inconsistent verdicts are attributable to feelings of leniency, to compromise, or, for that matter, to outright confusion on the part of the jury.” Price, 405 Md. at 28 , 949 A.2d at 630 . Based on this reasoning, Maryland’s exceptions to the general rule allowing inconsistent verdicts, and the holding in Taha that inconsistent verdicts in civil cases were prohibited, the Price Court concluded that inconsistent jury verdicts should no longer be permitted in criminal cases. Price, 405 Md. at 29 , 949 A.2d at 630 . Price’s conviction for possession of a firearm during and in relation to a drug trafficking crime was reversed.

Price, 405 Md. at 34 , 949 A.2d at 633 . 9 The Price concurring opinion urged that the Court’s opinion should be read as applying only to legally inconsistent verdicts, but not factually inconsistent verdicts. Price, 405 Md. at 35 , 949 A.2d at 634 (Harrell, J., concurring). The concurring opinion observed that “[t]he feature distinguishing a ⁴⁶⁶ factually inconsistent verdict from a legally inconsistent verdict is that a factually inconsistent verdict is illogical merely. By contrast, a legally inconsistent verdict occurs where a jury acts contrary to a trial judge’s proper instruction regarding the law.” Id.

Concluding that appellate courts are especially “ill equipped to determine whether a jury’s verdict is illogical factually, or merely ‘curious,’ ” the concurring opinion urged that Maryland should join New York, Florida, Missouri, and Rhode Island which prohibit legally inconsistent verdicts, but allow factually inconsistent verdicts to stand. Price, 405 Md. at 36 , 949 A.2d at 635 (Harrell, J., concurring) (citing People v. Tucker, 55 N.Y.2d 1 , 447 N.Y.S.2d 132 , 431 N.E.2d 617 (1981); Naumowicz v. State, 562 So.2d 710 (Fla.Dist.Ct.App.1990); State v. Flemons, 144 S.W.3d 877 (Mo.Ct.App.2004); State v. Arroyo, 844 A.2d 163 (R.I.2004)). The Price concurring opinion cautioned also reviewing courts against engaging in an inquiry that may mistake a curious verdict for a legally inconsistent verdict. Price, 405 Md. at 36 , 949 A.2d at 635 (Harrell, J., concurring).

The concurring opinion explored also the procedure by which a defendant should challenge a legally inconsistent verdict. Price, 405 Md. at 40 , 949 A.2d at 637 (Harrell, J., concurring). Id. Only a defendant, not the State, may object to an inconsistent verdict.

Price, 405 Md. at 42 n. 10, 949 A.2d at 638 n. 10 (Harrell, J., concurring). The objection must be made prior to verdict finality and discharge of the jury (as McNeal did in the present case), thus preventing the defendant from accepting the inconsistent verdict and seeking thereafter a windfall reversal on appeal. Price, 405 Md. at 40 , 949 A.2d at 637 (Harrell, J., concurring). Upon proper and timely objection by the defendant, the trial court must instruct the jury to resume deliberations and “resolve the inconsistency either by returning verdict in the defendant’s favor, convicting on the implicated counts, or deadlocking on a charge so that no inconsistent finding result.” Price, 405 Md. at 42 , 949 A.2d at 638 (Harrell, J., concurring). ⁴⁶⁷ B. Other States’ Approaches to Factually Inconsistent Verdicts As noted by the concurring opinion in Price, several jurisdictions allow factually inconsistent verdicts to stand although, at the same