Ndunguru v. State

Graeff, J. David Deodatus Ndunguru, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of robbery, assault in the second degree, and theft of property having a value of less than $100. The court imposed a sentence of ten years’ imprisonment, all but three years suspended, for the robbery conviction, to be followed by five years’ probation. ⁶³³ The court merged the other convictions for sentencing purposes. On appeal, appellant presents two questions for this Court’s review: 1. Did the circuit court err in sustaining the State’s objection to appellant’s testimony about a police officer’s statement of intent? 2.

Did the circuit court err in asking the jury to resolve its inconsistent verdict sua spontel For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On April 25, 2015, members of the Tanzanian community held a party at “Signature Blue,” an event venue in Beltsville, Maryland. Among the attendees were Andrew Ngatena and his friend, David Mwimanzi, who had been hired as the “disc jockey” (“DJ”) for the party. During the party, Mr. Ngatena stood near Mr. Mwimanzi so he could observe him at work and learn “how to [DJ] the music.” At some point, Mr. Ngatena left “to grab a drink.” When he returned, appellant, whom he did not know, was standing near the DJ booth, impeding his path.

Mr. Ngatena asked appellant to move, but appellant refused to do so. Mr. Ngatena then decided to go “outside to grab a smoke.” Although Mr. Ngatena was unable to recall precisely when he went outside to smoke, he estimated that the time was between 9:00 and 11:00 p.m. Appellant followed Mr. Ngatena outside. At first, the two men engaged in conversation, but at some point, appellant “took offense” to something that Mr. Ngatena said and punched Mr. Ngatena in the face.

Both men began throwing punches at each other. A second unknown man, who was standing behind Mr. Ngatena, then knocked Mr. Ngatena to the ground. A third man, whom Mr. Ngatena also did not ⁶³⁴ know, joined the fight, and the three men kicked Mr. Ngatena repeatedly. The assailants eventually stopped kicking Mr. Ngatena and began to walk away.

At that point, Mr. Ngatena “started throwing the words at them,” prompting them to return and resume punching him. By then, Mr. Ngatena was struggling to retain consciousness, but he was able to “sense” that the three assailants began to rifle through his pockets, taking his cell phone, wallet, passport, and gold necklace. Finally, appellant and the two unknown assailants fled. Shortly after appellant and his accomplices fled, Mr. Mwim-anzi was notified that his friend had been beaten and robbed.

For the next few hours, Mr. Mwimanzi and others at the party attempted to contact appellant to recover the property taken from Mr. Ngatena and resolve the dispute without police involvement. Mr. Mwimanzi ultimately called the police, and Detective Ben Leach, a member of the Prince George’s County Police Department, responded to Signature Blue at approximately 2:46 a.m. on April 26. Mr. Mwimanzi was acquainted with appellant because the two men had attended several events held by the tightly-knit Tanzanian community, where Mr. Mwimanzi had been a DJ and appellant had performed as a member of a three-man rap ensemble. Mr. Mwimanzi identified appellant to Detective Leach as one of the assailants.

Detective Leach obtained a photograph of appellant and showed it to Mr. Ngatena, who identified appellant as the man who robbed him. An arrest warrant was issued for appellant. Prior to appellant’s arrest on June 1, 2015, Mr. Ngatena contacted appellant via Facebook and telephone, attempting to obtain his stolen property. When Detective Leach learned of those attempts at communication with appellant, he advised Mr. Ngatena “not to contact” appellant, and Mr. Ngatena thereafter took that advice.

Mr. Ngatena testified that, at one point, appellant called him. Mr. Ngatena’s property eventually was given to Mr. Mwimanzi, who returned it to Mr. Ngatena. ⁶³⁵ Appellant testified that he did not know Mr. Ngatena, did not see him the night of the incident, and he did not assault Mr. Ngatena or take his property. He denied that he ever called Mr. Ngatena. The jury initially returned an inconsistent verdict, convicting appellant of second-degree assault and robbery but acquitting him of theft.

As discussed in more detail, infra, the circuit court re-instructed the jury, advising it to continue its deliberations. The jury then convicted appellant of all three charges. DISCUSSION I. Appellant contends that the circuit court erred in sustaining the State’s objection to his testimony that a police officer told him that they were going to search his cell phone to determine if he called Mr. Ngatena. Appellant concedes that this testimony was hearsay, but he argues that it was admissible pursuant to Maryland Rule 5—803(b)(3), a hearsay exception addressing, among other things, a “statement of the declarant’s then existing state of mind, ... offered to prove the declarant’s then existing condition or the declarant’s future action.” Appellant argues that the “police officer’s statement to [ajppel-lant—that he or she intended or planned to examine his phone to determine whether he or she had called [Mr.] Ngatena— was admissible to prove that the officer had acted in conformity with that plan.” He contends that excluding this testimony prejudiced his defense because testimony regarding the police officer’s intent to search his cell phone would have east doubt on the victim’s testimony, as well as bolstered his testimony.

The State argues that this claim is not preserved for this Court’s review because appellant failed to proffer below the relevance of the excluded testimony. In any event, it argues that appellant answered the question and the State did not move to strike the testimony from the record, and therefore, appellant suffered no prejudice as a result of the court’s ruling. ⁶³⁶ We begin our analysis by setting forth the relevant factual background. During appellant’s testimony, the following colloquy occurred: [DEFENSE COUNSEL]: Okay. So is it your testimony that at no time did you assault Mr. Ngatena? [APPELLANT]: No. [DEFENSE COUNSEL]: Okay.

And did you at any time take possession of any of his property? [APPELLANT]: No. [DEFENSE COUNSEL]: Okay. And at any time have you assisted or been asked to assist in the return retrieval of his property? [APPELLANT]: No. [DEFENSE COUNSEL]: Did you ever call him? [APPELLANT]: No. [DEFENSE COUNSEL]: And you spoke with the police. Correct? [APPELLANT]: Yeah, after they came to arrest me. [DEFENSE COUNSEL]: Okay. And you actually made a statement at the police station? [APPELLANT]: I—when they came at my house to arrest me, they didn’t tell me why they are arresting me.

So, when we got to the police station, that’s when they told me I’m arrested because I assaulted somebody. [DEFENSE COUNSEL]: Okay. Did you offer your phone to them? [APPELLANT]: Yeah. I gave them my phone. [DEFENSE COUNSEL]: Did they—did anybody tell you they were going to search your phone to find out if you had called this person? [APPELLANT]: Yeah. [THE STATE]: Objection, Your Honor. THE COURT: Sustained. [DEFENSE COUNSEL]: Did they take your phone? [APPELLANT]: Yeah. ⁶³⁷ [DEFENSE COUNSEL]: Did they give it back at some point? [APPELLANT]: Yeah. [DEFENSE COUNSEL]: No farther questions, Your Hon- or.

(emphasis added). As the State points out, when the prosecutor objected to appellant’s testimony, and the court sustained that objection, appellant did not proffer the basis for the admissibility of the excluded testimony. At no time did appellant argue, as he does on appeal, that the testimony was admissible pursuant to Rule 5-803(b)(3). “Ordinarily, a formal proffer of the contents and relevancy of the excluded evidence must be made in order to preserve for review the propriety of the trial court’s decision to exclude the subject evidence.” Merzbacher v. State, 346 Md. 391, 416 , 697 A.2d 432 (1997). Accord Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984), abrogated on other grounds, Price v. State, 405 Md. 10 , 949 A.2d 619 (2008).

When “evi dence is inadmissible on its face and admissible only for a limited purpose or under some theory, the proponent must ... explain to the court how the evidence is admissible and why it should be received.” Randall v. State, 223 Md.App. 519, 557 , 117 A.3d 91 (2015) (quoting In re Adoption/Guardianship Nos. CAA92-10852 and CAA92-10853, 103 Md.App. 1, 33 , 651 A.2d 891 (1994)). Accord 5 Lynn McLain, Maryland Evidence, State and Federal, § 103:20 (May 2017) (“On appeal, the proponent cannot argue either that the evidence was admissible as nonhearsay or falls within a particular hearsay exception, unless the proponent made that particular argument below.”). Here, as indicated, appellant failed to explain why the excluded testimony was admissible. Accordingly, this contention is not preserved for this Court’s review, and we decline to address it. ⁶³⁸ II.

Appellant’s second contention is based on the jury verdicts. On the second day of trial, the jury returned its initial verdicts, finding appellant guilty of assault in the second degree and robbery, but not guilty of theft. Defense counsel then requested the court to poll the jury. Prior to the conclusion of the polling, however, the circuit court interrupted the proceedings and convened a bench conference, where the following occurred: THE COURT: How can it legally be guilty of robbery and not guilty of theft? [DEFENSE COUNSEL]: I’m waiting on that answer.

It’s inconsistent. THE COURT: Okay? So, we can accept that factual inconsistent verdict, but I don’t think factually there is anything here. This is a legally inconsistent verdict.

Right? [THE STATE]: Right. THE COURT: So, I’m inclined to tell them that it can’t be. That’s if it’s guilty of robbery he must be guilty of theft. [DEFENSE COUNSEL]: Of course my position is he is not guilty [of] theft. He is not guilty.

THE COURT: He must be—he must be not guilty of robbery? [DEFENSE COUNSEL]: Right. THE COURT: So, I will have them go back and continue their deliberation to reach a consistent verdict. [DEFENSE COUNSEL]: I guess, for the record, again I would proffer that he has been acquitted of the theft. Therefore he must legally be acquitted of the robbery, and that leaves us— THE COURT: He’s not acquitted or convicted of anything yet, because we haven’t accepted the verdict. So noted. [DEFENSE COUNSEL]: Thank you, Judge.

THE COURT: Okay. ⁶³⁹ The circuit court then advised the jury that the verdicts it had reached, finding appellant guilty of robbery but not guilty of theft, were inconsistent, explaining that theft was part of robbery, i.e., robbery is a theft by force or threat of force. The court instructed the jury: [Y]ou can’t have found him not guilty of theft but guilty of robbery. If he is guilty of robbery, he is also guilty of theft. If he is not guilty of theft, he ... must be not guilty of robbery.

Okay? So, what I’m going to do is ask you to go back to the jury room and continue your deliberations and come up with a consistent verdict. Fifteen minutes later, the jury came back with its verdict. It found appellant guilty of all charges: assault in the second degree, robbery, and theft.

The jury was then polled and the verdict hearkened. Appellant contends that the circuit court erred in sua sponte ordering the jury to reconsider its inconsistent verdict. He asserts that only the defendant can object to an inconsistent verdict, and because he did not do so, the proper remedy is to vacate the theft conviction. The State contends that this claim is not preserved for this Court’s review because appellant’s “requested relief below was different [from] what he now argues on appeal.” Moreover, the State argues that the circuit court did not err in instructing the jury to resume its deliberations to resolve the inconsistent verdict because appellant did object to the inconsistency, and by asking the trial court to enter an acquittal as to the theft count, counsel was “signaling to the court that he wanted the jury to continue deliberating in the hopes that the inconsistency would be resolved in his favor.” Until relatively recently, inconsistent verdicts of conviction and acquittal by a jury in a criminal case were permitted because the inconsistency could be the result of lenity.

Travis v. State, 218 Md.App. 410, 446 , 98 A.3d 281 (2014). In 2008, however, the Court of Appeals held that inconsistent verdicts would no longer be permitted in Maryland. Price, 406 Md. at ⁶⁴⁰ 29, 949 A.2d 619 . The concurring opinion written by Judge Harrell stated that the majority opinion applied only to “legally inconsistent verdicts,” not “factually inconsistent” verdicts.

Id. at 36, 949 A.2d 619 (Harrell, J., concurring). The Court of Appeals subsequently confirmed this assertion, holding that, although legally inconsistent verdicts are no longer permissible, jury verdicts that are illogical or factually inconsistent are permitted in criminal trials. McNeal v. State, 426 Md. 455, 465-66 , 44 A.3d 982 (2012). Accord Givens v. State, 449 Md. 433, 457-58 , 144 A.3d 717 (2016).

The Court of Appeals has explained that factually inconsistent verdicts occur “ ‘where a jury renders