OGUNDIPE v. State

JAMES A. KENNEY, III, Judge (retired, specially assigned). Olusegun Hakeem Ogundipe was tried before a jury sitting in the Circuit Court for Washington County and convicted of first degree murder, attempted first degree murder, two counts of first degree assault, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. The jury announced its verdict in open court, no juror objected to the verdict when hearkened by the clerk of the court, and all of the jurors individually agreed to the verdict when polled. Ogundipe was sentenced to life imprisonment plus ten years.

Days after the court entered judgment reflecting the jury’s verdict, defense counsel was made aware that the verdict sheet reflected that the jury had answered “yes” to questions asking whether Ogundipe was guilty of the charges of murder, attempted murder, and two counts of assault in the first degree, but, rather than skipping questions related to the same charges in the second degree as instructed, the verdict sheet indicated that the jury answered “no” as to whether Ogundipe was guilty of those crimes. Ogundipe presents two questions on appeal, which we have reworded: 1 ³⁷³ I. Did the circuit court err by accepting an inconsistent verdict?

II

Did the circuit court err by failing to disclose the verdict sheet to Ogundipe? For the reasons that follow, we answer “no” to both questions and affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The charges against Ogundipe stem from an altercation that occurred on July 23, 2006, in which one person was killed and another person was seriously injured. Ogundipe was charged with the following offenses: first and second degree murder and first and second degree assault of Jackson Augustin Rodriguez; attempted first and second degree murder and first and second degree assault of Tony Perry; first and second degree assault of Steven Ramel Broadhead; use of a handgun in the commission of a crime of violence; wearing, carrying, and transporting a handgun; and felon in possession of a handgun. 2 After a two-day trial, which began on May 13, 2008, the judge instructed the jury concerning its deliberations, as follows: Alright, ladies and gentlemen of the jury, you will retire to consider your verdict in this matter.

As I indicated, there is a verdict sheet that will be given to you. It consists of twelve questions. ³⁷⁴ Questions One and Two relate to the charges of first and second degree murder of Jackson Rodriguez. Question is: As to the charge of first degree murder of Jackson Augustin Rodriguez, on or about July twenty-three 2006, how do you find the defendant Olusegun Hakeem Ogundipe, guilty or not guilty? You’re given further instruction then: If your answer to that question would be not guilty, then I would ask you to consider Question Number Two, which is second degree murder of Jackson Rodriguez.

After you have done that, then Question Three and Four relate to the attempted first and second degree murder of Tony Perry. You would consider first degree murder. If your answer to that would be not guilty then you would consider attempted second degree murder of Tony Perry. Questions Five and Six relate to the first degree assault of Jackson Augustin Rodriguez.

Using the same means of analysis, Questions Seven and Eight relate to the first and second degree assault of Tony Perry. And Questions Nine and Ten relate to the first and second degree assault of Steven Broadhead. Question Eleven relates to the charge of the use of a handgun in the commission of a crime of violence. I would ask you to once again consider the instructions that were given.

Before you consider that question and the last question is as to the charge of wearing and carrying and transporting a handgun. How do you find the defendant, guilty or not guilty? Once again, I would remind you that your decision must be unanimous. In other words, all twelve of you must agree.

Two hours after the jury retired to deliberate, the court reconvened, and the following discourse took place: The Court: Alright, the defendant is present. Please bring the jury in. (The jury returns to the jury box.) ³⁷⁵ Alright, the jury is present. The defendant and counsel are present.

It’s my understanding the jury has reached a verdict. Is that correct? Foreman: Yes, sir. The Court: Okay.

Mr. Clerk, if you would take the verdict of the jury, please. Clerk: Yes, sir. Ladies and gentlemen of the jury, are you agreed as to your verdict? If so, please answer, “We are.” Jury: We are.

Clerk: Who shall say for you? Jury: Our foreman. Clerk: Please stand. As to the charge of first degree murder of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty?

Foreman: Guilty Clerk: As to the charge of attempted first degree murder of Tony Perry ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty Clerk: As to the charge of first degree assault of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty? Foreman: Not guilty. Clerk: As to the charge of second degree assault of Jackson Augustin Rodriguez ... how do you find the defendant ... guilty or not guilty?

Foreman: Not guilty. Clerk: As to the charge of first degree assault of Tony Perry ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty Clerk: As to the charge of use of a handgun in the commission of a crime of violence ... how do you find the defendant ... guilty or not guilty? Foreman: Guilty ³⁷⁶ Clerk: As to the charge of wearing, carrying and transporting a handgun ... how do you find the defendant ... guilty or not guilty?

Foreman: Guilty. After the foreman reported the jury’s verdict, the clerk of the court hearkened the verdict. The clerk stated: Ladies and gentlemen of the jury, hearken your verdict as the Court hath recorded it. Your foreman saith that Olusegun Hakeem Ogundipe is guilty of first degree murder of Jackson Augustin Rodriguez on or about July 23, 2006.

That Olusegun Hakeem Ogundipe is guilty of attempted first degree murder of Tony Perry on or about July 23, 2006. That Olusegun Hakeem Ogundipe is not guilty of first degree assault of Jackson Augustin Rodriguez on or about July 23, 2006. That Olusegun Hakeem Ogundipe is not guilty of second degree assault of Jackson Augustin Rodriguez on or about July 23, 2006. And Olusegun Hakeem Ogundipe is guilty of first degree assault of Tony Perry on or about July 23, 2006.

That Olusegun Hakeem Ogundipe is guilty of first degree assault of Steven Ramel Broadhead on or about July 23, 2006. That Olusegun Hakeem Ogundipe is guilty of the charge of use of a handgun in the commission of a crime of violence on or about July 23, 2006. And that Olusegun Hakeem Ogundipe is guilty of wearing, carrying and transporting a handgun on or about July 23, 2006. And so say you all?

If so, please answer, “We do.” After the jury replied, ‘We do,” Ogundipe’s counsel requested that the jury be polled. Each juror was asked individually, “[I]s this your individual verdict?” Each responded, “Yes.” At some time, in the days following the trial, appellant’s counsel learned that the verdict sheet, signed by the jury foreman, read as follows: Question # 1: First degree murder of Jackson Rodriguez Guilty Question # 2: (To be answered only if the answer to Question # 1 is Not Guilty) Second degree murder of Jackson Rodriguez Not Guilty ³⁷⁷ Question # 3: Attempted first degree murder of Tony Perry Guilty Question # 4: (To be answered only if the answer to Question # 3 is Not Guilty) Attempted second degree murder of Tony Perry Not Guilty Question # 5: First degree assault of Jackson Rodriguez Not Guilty Question # 6: (To be answered only if the answer to Question # 5 is Not Guilty) Second degree assault of Jackson Rodriguez Not Guilty Question # 7: First degree assault of Tony Perry Guilty Question # 8: (To be answered only if the answer to Question # 7 is Not Guilty) Second degree assault of Tony Perry Not Guilty Question # 9: First degree assault of Steven Broadhead Guilty Question # 10: (To be answered only if the answer to Question # 9 is Not Guilty) Second degree assault of Steven Broadhead Not Guilty Question # 11: Use of a handgun in the commission of a crime of violence Guilty Question # 12: Wearing, carrying and transporting a handgun Guilty Discussion Ogundipe argues that the circuit court erred by accepting an inconsistent verdict: When the trial court took the verdict from the foreperson, it only asked the jury foreperson for verdicts on questions numbered One (first degree murder of Jackson Rodriguez), Three (attempted first degree murder of Tony Perry), Five (first degree assault of Jackson Rodriguez), Six (second degree assault of Jackson Rodriguez), Seven (first degree assault of Tony Perry), Nine (first degree assault of Steven Broadhead), Eleven (use of a handgun during the commission of a crime of violence), and Twelve (wearing/carrying a handgun.) The jury’s verdict in Appellant’s case is irreconcilably inconsistent in violation of Maryland’s common law. The verdict shows Appellant not guilty of lesser included offenses and guilty of the greater offenses as they pertain to each victim in the case. ³⁷⁸ He relies on Price v. State, 405 Md. 10, 23-24 , 949 A.2d 619 (2008), in which the Court of Appeals ruled that inconsistent verdicts in criminal cases would no longer be tolerated under Maryland common law. According to the Court, a “legally inconsistent verdict occurs where a jury acts contrary to a trial judge’s proper instructions regarding the law.” Id. at 35 , 949 A.2d 619 .

We explained, in Tate v. State, 182 Md.App. 114, 131 , 957 A.2d 640 , cert. denied, 406 Md. 747 , 962 A.2d 373 (2008): A legal inconsistency ... 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 ... 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 State characterizes the jury’s responses to the charges of second degree murder, attempted second degree murder, and second degree assault, where the jury had found appellant guilty of the first degree charges, as “simply erroneous.” According to the State: “The only properly returned verdicts [were] those announced in open court, hearkened, and about which the jury was polled.” In Jones v. State, 384 Md. 669, 675 , 866 A.2d 151 (2005), four counts against the defendant went to the jury: attempted robbery with a dangerous and deadly weapon, attempted robbery, possession of a firearm by a person convicted of a crime of violence, and use of a handgun in commission of a crime of violence.

On the verdict sheet, the jury found the defendant guilty on all four counts. Id. at 675 , 866 A.2d 151 . ³⁷⁹ Presumably, the verdict sheet was handed by the foreman to the court clerk. 3 The court clerk only asked the foreman whether the jury found the defendant guilty as to the counts of “attempted robbery with a dangerous and deadly weapon,” “attempted robbery,” and “possession of a handgun in the commission of a crime of violence.” Id. at 676 , 866 A.2d 151 . The foreman answered “guilty” as to each count. Id.

The jury was polled and the verdict was hearkened as to only these three counts. Id. at 676-77 , 866 A.2d 151 . The defendant was sentenced for “attempted robbery with a dangerous and deadly weapon,” “use of a handgun in the commission of a crime of violence,” and “possession of a firearm by a person previously convicted of a felony or crime of violence.” Id. On appeal, the defendant argued that the sentence imposed for “possession of a firearm by a person previously convicted for a felony or crime of violence should not stand because the jury foreman did not announce the guilty verdict in open court,” and the sentence for that count was, therefore, illegal.

Id. This Court stated that “where it is unmistakable that the jury found the defendant guilty, ‘substance will prevail over form even if the guilty verdict is not announced and even if it is neglected again when the jury is polled.’ ” Id. at 677 , 866 A.2d 151 . This Court ultimately “declined to disturb the sentence imposed for the firearm possession charge and concluded that the issue was not properly preserved by Jones because he had failed to object at any time when the verdict was delivered or when he was sentenced.” Id. at 678 , 866 A.2d 151 . The Court of Appeals granted Jones’ petition for a writ of certiorari and reversed.

Id. The Jones Court reviewed the history of procedures used for returning the verdict from the