Pitts v. State

Rodney Pitts v. State of Maryland, No. 0552 of the September, 2020 Term, Opinion by Moylan, J. HEADNOTE: MARYLAND RULE 4-345(A) AND INCONSISTENT JURY VERDICTS – A LONG, LONG TRAIL A-WINDING – TWO CONTENTIONS – WHAT IS AN INHERENTLY ILLEGAL SENTENCE? – VARIETIES OF INCONSISTENT VERDICTS – LEGAL INCONSISTENCY VERSUS FACTUAL INCONSISTENCY – A STICKY WICKET: VERDICT INCONSISTENCIES AND INHERENT ILLEGALITIES – PRICE V. STATE: A 180° CHANGE OF COURSE – HEINZE V. STATE: A FALSE LIGHT ON THE SHORE – THE CASELAW PRE-PRICE: INCONSISTENT VERDICTS BY A JURY WERE TOLERATED – THE CASELAW POST-PRICE: PRICE CHANGED THE LAW – TIME IS OF THE ESSENCE – AN ALTERNATIVE HOLDING: THE ROAD TO GIVENS – THE PRICE-GIVENS SINGULARITY – A FORLORN CONTENTION – THE LACK OF SUBSTANTIVE MERIT – THE LACK OF PRESERVATION – THE LACK OF ANY PERSUASIVE REASON FOR NOTICING “PLAIN ERROR” – THE LACK OF ANY INHERENT ILLEGALITY IN THE SENTENCE Circuit Court for Baltimore City Case No. 196026023-24 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0552 September Term, 2020 RODNEY PITTS v. STATE OF MARYLAND Fader, C.J., Ripken, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. Filed: April 29, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-04 12:58-04:00 Suzanne C. Johnson, Clerk The fields of law involved in this appeal are two-fold, each highly complicated in its own right, and intricately interwoven in the case before us. One of them is Maryland Rule of Procedure 4-345(a), which provides, “The court may correct an illegal sentence at any time.” The other is the curious phenomenon of inconsistent jury verdicts. Involved is the interwoven and subtly nuanced issue of which, if any, of the many varieties of verdict inconsistency might produce an “illegal sentence” within the strict contemplation of Rule 4-345(a).

A Long, Long Trail A-Winding The appellant, Rodney Pitts, was charged with the cold-blooded murders of two sisters, G’Angela Johnson and Trina Johnson, that occurred on December 21, 1995 in Baltimore City. Following a trial that ran from September 23 through October 3, 1997, the jury, presided over by Judge Joseph McCurdy, rendered its verdicts. With respect to each of his two victims the appellant had been charged with the Intent-to-Kill variety of murder. The three other varieties or kinds of murder, 1) Intent-to-Inflict Grievous Bodily Harm Murder, 2) Felony Murder, and 3) Depraved Heart Murder, are not at all involved in this case.

With respect to each victim, the appellant was charged with 1) Premeditated Intent- to-Kill Murder in the first degree and 2) Simple Intent-to-Kill Murder in the second degree.1 The second-degree murder count was, inter alia, a lesser included offense within 1 It is tempting to call second-degree murder of this type “unpremeditated murder,” but that would not be literally correct. Non-premeditation is not an affirmative element of the second-degree crime. What is involved in proving the lesser-degree of murder is not proof of non-premeditation but only the non-proof of premeditation. There is a big difference between the two. the first-degree murder count, indistinguishable from the greater inclusive offense except that it lacked the aggravating element of premeditation.

As it rendered its verdicts, victim by victim and count by count, the jury found the appellant guilty of murder in the first degree with respect to both G’Angela and Trina. It also found the appellant guilty of murder in the second degree as to Trina, but, bizarrely, not guilty of murder in the second degree as to G’Angela.2 This inexplicable incongruity now looms before us 24 years later.3 Judge McCurdy sentenced the appellant to a term of life imprisonment without the possibility of parole for the first-degree murder of G’Angela Johnson. The appellant does not now challenge his conviction or sentence for the first-degree murder of Trina Johnson. In the immediate wake of the sentences, the appellant appealed both convictions to this Court.

We affirmed in an unreported opinion filed on December 7, 1998, simply vacating 2 There is no conceivable, let alone logical, explanation for this weird and aberrant not guilty verdict other than the overwhelming probability that the jury foreperson inadvertently misspoke or that the clerk inadvertently misheard or misrecorded what was said. As was noted by Alexander M. Bickel, Comment, “Judge and Jury – Inconsistent Verdicts in the Federal Courts,” 63 Harv. L. Rev. 649 , 653 (1950): The possibility of inconsistent verdicts increases in direct ratio to the number of counts. 3 One of the recent benefits of Givens v. State, 449 Md. 433 , 144 A.3d 717 (2016) is that such incongruities may not lie unnoticed at the time but then loom up, as here, decades later. For an apparently inconsistent verdict to be worthy of later appellate notice, defense counsel must bring it to the attention of the trial judge before the jury has been discharged.

This provides the opportunity for the court to send the jury back to clarify an apparent inconsistency. 2 one of two redundant convictions for openly carrying a dangerous weapon. The Court of Appeals denied the appellant’s request for a writ of certiorari on March 12, 1999. The appellant’s Motion to Correct an Illegal Sentence was filed in the Circuit Court for Baltimore City 19 years later on November 4, 2018. A telephonic hearing was held before Judge Pamela J. White on July 2, 2020.

In a Memorandum Opinion and Order filed on July 7, 2020, Judge White denied the motion and this appeal followed. Two Contentions On this appeal, the appellant raises two contentions. In the appellant’s express terms, they are: 1. MR.

PITTS’ SENTENCE IS INHERENTLY ILLEGAL BECAUSE IT ARISES FROM A LEGALLY INCONSISTENT VERDICT, AND 2. THE COURT’S FAILURE TO INSTRUCT THE JURY THAT SECOND- DEGREE MURDER IS A LESSER-INCLUDED OFFENSE OF FIRST- DEGREE MURDER IS REVERSIBLE ERROR. What Is An Inherently Illegal Sentence? The appellant claimed that his sentence for the first-degree murder conviction of G’Angela Johnson was an “illegal sentence.” The appreciation of what is an “illegal sentence” within the strictly limited coverage of Rule 4-345(a) is an appropriate place to begin our analysis.

In Carlini v. State, 215 Md. App. 415, 419-20 , 81 A.3d 560 (2013), this Court examined that nuanced definition: What is an illegal sentence? That all depends upon what one means by “an illegal sentence.” There are countless illegal sentences in the simple sense. They are sentences that may readily be reversed, vacated, corrected or modified on direct appeal, or even on limited post-conviction review, for a wide variety of procedural glitches and missteps in the sentencing process. Challenges to such venial illegalities, however, are vulnerable to such common pleading infirmities as non- 3 preservation and limitations.

There is a point, after all, beyond which we decline to revisit modest infractions. There are, by contrast, illegal sentences in the pluperfect sense. Such illegal sentences are subject to open-ended collateral review. Although both phenomena may casually be referred to as illegal sentences, there is a critically dispositive difference between a procedurally illegal sentencing process and an inherently illegal sentence itself.

It is only the latter that is grist for the mill of Maryland Rule 4-345(a). (Emphasis supplied.) Rule 4-345(a) focuses narrowly on the sentence itself. It is not a broadscale review of the antecedent trial procedure culminating in the sentence. The evolving caselaw has drawn a dispositive distinction between illegal sentences in the sense that the antecedent procedure was somehow legally flawed, which are not cognizable under Rule 4-345(a), and illegal sentences in the more limited cases where the illegality is inherent in the sentence itself, which are cognizable.

The Court of Appeals, in Tshiwala v. State, 424 Md. 612, 619 , 37 A.3d 308 (2012), was emphatic that some illegal sentences are not covered by Rule 4-345(a): Where the sentence imposed is not inherently illegal, and where the matter complained of is a procedural error, the complaint does not concern an illegal sentence for purposes of Rule 4-345(a). A sentence does not become an illegal sentence because of some arguable procedural flaw in the sentencing procedure. (Emphasis supplied.) See also Johnson v. State, 427 Md. 356, 367 , 47 A.3d 1002 (2012) (“The scope of this privilege…is narrow. To constitute an illegal sentence under Rule 4- 345(a), the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.

Accordingly, we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.”). 4 This Court examined the same distinction in Matthews v. State, 197 Md. App. 365, 375 , 13 A.3d 834 (2011), rev’d on other grounds, 424 Md. 503 , 36 A.3d 499 (2012): Emerging from a survey of a quarter of a century of Maryland caselaw is the overarching principle that the values of finality and closure still abide, Rule 4-345(a) has been consistently interpreted to be a narrow window that permits a trial judge to correct at any time a sentence that is obviously and facially illegal in the sense that it is a sentence that the court had never been statutorily authorized to impose. It is not, on the other hand, some unlimited “Reopen, Sesame,” licensing the court to revisit and to relitigate issues that have long since become faits accompli. (Emphasis supplied.) See also Ray v. State, 230 Md. App. 157, 162-63 , 146 A.3d 1157 (2016). As this Court warned in Ray v. State, 230 Md. App. at 167 , “To recite that for Rule 4-345(a) applicability, the illegality must inhere in the sentence itself is one thing.

Instinctively to be able to identify such a phenomenon is something else again.” An obvious example of an inherently illegal sentence is a sentence that exceeds the sentencing cap. (An 11-year sentence for a crime carrying a statutory maximum sentence of 10 years). A recent prolific expansion of this type of inherent illegality are sentences exceeding a sentencing cap imposed not by statute but by a negotiated plea bargain. Cuffley v. State, 416 Md. 568 , 7 A.3d 557 (2010).

Another type of inherently illegal sentence is one where the sanction imposed is one that has not been authorized by statute, such as restitution, Walczak v. State, 302 Md. 422 , 488 A.2d 949 (1985) or home detention, Holmes v. State, 362 Md. 190 , 763 A.2d 737 (2000). Another type of inherent illegality and the one pertinent to the case before us is a sentence that is illegal because it was imposed in a case where no sentence should have 5 been imposed in the first place. Alston v. State, 425 Md. 326, 339 , 40 A.3d 1028 (2012), spoke of this type of inherently illegal sentence: There is one type of illegal sentence which this Court has consistently held should be corrected under Rule 4-345(a). Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief under Rule 4-345(a).

(Emphasis supplied.) See also Ridgeway v. State, 369 Md. 165 , 797 A.2d 1287 (2002) (“A court cannot punish a defendant for a crime for which he or she has been acquitted.”); Johnson v. State, 427 Md. 356 , 47 A.3d 1002 (2012) (A sentence for assault with intent to murder should never have been imposed where the defendant had never been charged with assault with intent to murder.); State v. Garnett, 172 Md. App. 558, 559 , 916 A.2d 393 (2007) (“A sentence of restitution cannot be imposed on a defendant who has been found not criminally responsible by reason of insanity.”). The concept was well summed up by Judge Wilner in Chaney v. State, 397 Md. 460, 466 , 918 A.2d 506 (2007): We have consistently defined this category of “illegal sentence” as limited to those situations in which the illegality inheres in the sentence itself; i.e., there either has been no conviction warranting any sentence for the particular offense or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantively unlawful. (Emphasis supplied.) With this preliminary reconnoitering of inherently illegal sentencing behind us, let us now proceed to search the present case to see if there was, indeed, an inherently illegal sentence within the special contemplation of Rule 4-345(a). What was the nature of the allegedly illegal sentence that the appellant claims needed correcting in this case? 6 Varieties Of Inconsistent Verdicts “[I]nconsistency between verdicts is by no means a simple or one-dimensional problem.

It is a collection of very different problems.” Travis v. State, 218 Md. App. at 436. As our analysis proceeds, it is as important to take careful notice of what this case is not about as it is to note what it is about. Inconsistency in verdicts is a vast subject, most of which is not remotely pertinent to the appeal before us. 4 There is a critical difference between how the law handles inconsistent verdicts in a civil case and in a criminal case. Our concern here is only with an inconsistency in verdicts in a criminal case.

There is also a critical difference between inconsistent verdicts in a bench trial and in a jury trial. Our concern here is exclusively with inconsistent verdicts in a jury trial and not with inconsistent verdicts by a judge alone in a bench trial.5 There is also a critical difference, even in criminal jury trials, between two inconsistent convictions and between a conviction and an inconsistent acquittal. Our only concern in this case is between a conviction and an inconsistent acquittal. There is finally, even in jury trials in criminal cases, a critical 4 See Eric L. Muller, “The Hobgoblin of Little Minds?

Our Foolish law of Inconsistent Verdicts,” 111 Harv. L. Rev., 771 (1998); Steven T. Wax, “Inconsistent and Repugnant Verdicts In Criminal Trials,” 24 N. Y. L. Sch. Rev. 713 (1979); Ashlee Smith, Comment, “Vice-A-Verdict: Legally Inconsistent Jury Verdicts Should Not Stand In Maryland,” 35 U. Balt. L. Rev. 395 (2003). 5 There is also occasionally an interesting hybrid trial in which a verdict as to one issue in the trial is rendered by the judge and in which a verdict as to some other aspect of the trial is rendered by the jury.

The law as to inconsistency may be of some attenuated pertinence. It should, in any event be handled with extreme sensitivity. See Galloway v. State, 371 Md. 379 , 809 A.2d. 653 (2002). 7 difference between actual legal inconsistencies and less virulent inconsistencies that are only factual or logical. Our concern in this case is only with actual legal inconsistencies.6 Our focus in this case is narrowly and scrupulously on the inconsistency between a conviction and an acquittal rendered by a jury in a criminal case that is an actual legal inconsistency and not merely a factual or logical inconsistency.

Similar factual situations or beguiling verbal phrases cherry-picked by counsel out of the other categories of inconsistency cases are simply snares and false lures to be meticulously avoided.7 Legal Inconsistency Versus Factual Inconsistency This case is a textbook example of how intricate a question the difference between a factual inconsistency and a legal inconsistency can be. It is sometimes a very easy question but at other times a very difficult one. The gap between the two types of inconsistency is sometimes self-evidently obvious “from way down the canyon.” Sometimes, however, the gap is so infinitesimal as to suggest identity between the inconsistencies. The intent-to-kill, highly pertinent in this case as the mens rea of murder, is of a dual nature and can be a factor in either type of inconsistency.

The presence of an 6 In Travis v. State, 218 Md. App. at 450, this Court continued: The difficulty is that although the respective heartlands can be clearly distinguished from each other, the borderline between legal inconsistency and factual inconsistency is often a blurred boundary. 7 In Travis v. State, 218 Md. App. at 464, this Court continued: Our analysis would be a lot cleaner, therefore, if we could carefully differentiate between the different types of inconsistency and refrain from trying to squeeze dissimilar problems under a single umbrella. Too many cases are cited that are not pertinent, and we spend too much time distinguishing. 8 intent to kill may be a finding of fact, contributing importantly to the jury’s decision- making process. The intent to kill, on the other hand, may also be a constituent legal element of a crime, its presence or absence arising out of the jury’s decision. Whether on a given occasion the intent to kill is a vitally important piece of evidence contributing to the jury’s verdict, on the one hand, or is a legal element of the crime determined by the jury’s verdict, on the other hand, will determine which type of verdict inconsistency is involved.

Is the intent to kill evidence going into the jury or an element of the crime whose presence or absence is being announced coming out of the jury? In this case, the intent to kill was an element of the crime of murder, an element in this case found not to have existed by the jury’s verdict of not guilty of second-degree murder. In this case, therefore, the variety of verdict inconsistency was legal inconsistency rather than factual inconsistency. All attendant procedures having been satisfied (see Givens v. State infra), the trial judge should not have received the guilty verdict.

Absent that verdict, there would have been nothing on which the appellant should have been sentenced and any sentence for a non-existent conviction, therefore, would have been quintessentially illegal per se. The sentence now before us, therefore, would have been inherently illegal within the contemplation of Rule 4-345(a). A Sticky Wicket: Verdict Inconsistencies And Inherent Illegalities Thus far, the inconsistency in the verdicts before us in this case would qualify for further examination pursuant to Rule 4-345(a) as possibly being of the type of illegal sentence that may be corrected by the court at any time. The verdicts were rendered in a 9 criminal case, not in a civil case.

They were rendered in a jury trial, not a bench trial. The inconsistency was between a conviction and an acquittal, not between two convictions. The inconsistency, moreover, was a legal inconsistency, and not merely an evidentiary or logical inconsistency. This last qualification for justiciability was satisfied because the inconsistency was not with respect to the evidence or the facts of the case, but was an inconsistency with respect to an actual legal element of the crime of murder, to wit, the murderous mens rea of an intent to kill.

Of the four possible types or varieties of murder (depending on the particular mens rea involved), the type of murder before us in this case is “intent-to-kill” murder. Glenn v. State, 68 Md. App. 379, 384-85 , 511 A.2d 1110 , cert. denied, 307 Md. 599 , 516 A.2d 569 (1986); Oates v. State, 97 Md. App. 180, 185-86 , 627 A.2d 555 (1993). The mens rea of an intent to kill is per se the common law malice that raises an act of homicide to the felony of murder. In this case, the crime of first-degree murder contained as an indispensable legal element the mens rea of an intent to kill.

The fact that it was premeditated was simply the aggravating factor that raised the degree of the crime from the second degree up to the first degree. The charge of second-degree murder also included, as one of two alternative mentes reae, the mens rea of an intent to kill. The alternative mens rea of an intent to inflict grievous bodily harm, which alternatively could have supported a conviction for second-degree murder, is irrelevant for present purposes. The jury said that neither mens rea existed.

The legal inconsistency in this case, therefore, was with respect to a legal element of the crime of murder itself. The verdict of guilty of first-degree murder asserted that the 10 appellant had the mens rea of an intent to kill. The verdict of not guilty of second-degree murder asserted that the appellant did not have the intent to kill (he didn’t have the alternative mens rea either but that is irrelevant). He could not simultaneously have had the intent to kill but not have had the intent to kill.

That legal inconsistency, absent waiver problems, would have meant that the verdict of guilty should not have been received. Without a verdict of guilty, there would have been nothing on which to pass sentence. Such a sentence, therefore, would have been illegal per se. As a legal inconsistency rather than a factual inconsistency, therefore, the claim is thus far at least ripe for further consideration.

To wit, it is justiciable. Price v. State: A 180° Change of Course The vintage of this principle that inconsistent jury verdicts are not permitted in Maryland is, however, a matter of dispositive sensitivity in and of its own right. In this Rule 4-345(a) case, the very heart of the appellant’s claim is that his sentence to life imprisonment without the possibility of parole for the first-degree murder of G’Angela Johnson was illegal and that that illegality is inherent in the very sentence itself, thus calling for correction by the court even decades after it was originally imposed. The syllogism around which the appellant constructs his argument in that regard may collapse, however, with the very statement of its major premise.

That major premise is that any sentence on a conviction after the trial judge has erroneously accepted inconsistent jury verdicts with respect to that charge is ipso facto illegal within the contemplation of Rule 4-345(a). If, however, that major premise should prove to be untrue, 11 the remainder of the syllogism cannot validly follow. Our job on this appeal, inter alia, will be to assess the truth of that major premise. If that major premise be untrue, the syllogism implodes.

The truth of this major premise, moreover, is not only a question of What?, but also a question of When? What then is the basis for the appellant’s claim that the inconsistency between the jury’s conviction of him for first-degree murder and its acquittal of him for second-degree murder was somehow illegal under the law of Maryland? No act of the General Assembly ever made it so. Nor did it arrive at St. Clements’s Island as part of the unseen cargo of the Ark and the Dove, the English common law.

Whence then this core proposition of the case before us? Not only Whence? but When? The appellant expends but scant attention to this question of his core contention’s origins. He does, in little more than a passing comment, cite Price v. State, 405 Md. 10, 18 , 949 A.2d 619 (2008) for the proposition that “legally inconsistent verdicts are impermissible in criminal cases.” Otherwise the appellant, in his primary appellate brief, says absolutely nothing about the origins of that proposition on which his entire thesis completely depends.

Heinze v. State: “A False Light On The Shore” In reply brief, the appellant seems to realize for the first time that he may have a problem with a parvenu precedential lineage for his core argument that traces back only to 2008, if it, indeed, depends on Price v. State for its age. Without so much as mentioning Price, the appellant then boldly proclaims in a subheading, “Legally inconsistent verdicts 12 have been illegal for at least 75 years.” His reply brief is nothing less than his appropriation of H.G. Wells’ Time Machine, and he has set the dial for 1945: In Heinze v. State, 184 Md. 613 (1945), the Court of Appeals both acknowledged that legally inconsistent verdicts are illegal and that the court has an affirmative duty to correct them, stating: “It is a generally accepted rule that if the jury should return a verdict which is defective in form or substance, it should not be accepted by the trial judge.” Id. at 617 . (Emphasis supplied.) That is a classic example of cherry-picking an unquestionably beguiling sentence completely out of context. The reply brief then sought to bring Heinze v. State more up to date: Not only has Heinze remained good law, it was cited by the Court of Special Appeals in Givens v. State, 449 Md. 433 (2016), as an example of the well-settled legal precedent that legally inconsistent verdicts in criminal proceedings are unlawful.

See id. at 448 . As we have explained at some length in cataloguing the varieties of verdict inconsistencies, one may not misapply the law controlling one variety of inconsistent verdicts to a case involving another distinct variety or cherry-pick language from one variety and apply it to another. As this Court warned in Travis v. State, 218 Md. App. 410, 439 , 98 A.3d 281 (2014), “Caution should be employed, therefore, not to draw glib or inept analogies between phenomena that are not analogous.” As we had earlier pointed out in Tate v. State, 176 Md. App. 365, 384-85 , 933 A.2d 447 (2007) (“Tate I”): Statements made in the context of inconsistent conviction cases may have no applicability at all in the very different world of an inconsistency between a jury’s conviction and a jury’s acquittal. Pronouncements quite correctly made in the first context can be treacherous if uncritically misapplied in the second.

Such a doctrinal transplant does not always take. (Emphasis supplied.) 13 The Heinze v. State opinion, and the language quoted by the appellant, involved an inconsistency between two verdicts of guilty. (One could not at that time, e.g., be guilty of both larceny and the receiving of stolen goods.) Ours, on the other hand, is a case involving an inconsistency between a conviction and an acquittal.8 Heinze v. State, therefore, is simply one of Longfellow’s “false lights on the shore,”9 which should be vigilantly avoided. In a word, we are unbeguiled.

The Caselaw Pre-Price: Inconsistent Verdicts By A Jury Were Tolerated If not Heinze v. State in 1945, what then is the starting point for the non-toleration principle on which the appellant’s thesis completely depends? The age of this principle is pivotal in this case. Because, in oral argument, the appellant adamantly maintained that the birth of the principle goes back before the filing of Price v. State in 2008, it behooves us to examine every scrap of pertinent caselaw – pre-Price, Price, and post-Price – with granular meticulosity. The general toleration of inconsistent jury verdicts in criminal cases, as opposed to our present non-toleration, traces back at least to 1925.

In Travis v. State, 218 Md. App. 410, 443 , 98 A.3d 281 (2014) we summarized that early history: The entire subject of inconsistent verdicts first achieved national prominence in 1925 as federal courts, soon followed by state courts, carved out a massive exception to the former prohibition for an inconsistency between a conviction and an acquittal 8 This Court analyzed Heinze v. State at significant length in Travis v. State, 218 Md. App. 410, 438-40 , 98 A.3d 281 (2014). 9 Henry Wadsworth Longfellow, “O Ship of State.” 14 both rendered by a jury. Instead of being strictly forbidden, inconsistency at the hands of a jury became almost universally tolerated. (Emphasis supplied.) The pioneering opinion for the toleration of inconsistent verdicts had been that of Judge Learned Hand10 for the United States Court of Appeals for the Second Circuit in Steckler v. United State, 7 F.2d 59 (2d. Cir. 1925).

The Supreme Court followed the lead of Judge Hand with the opinion of Justice Oliver Wendell Holmes in Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932). Lest any wonder whether Dunn v. United States has now somehow been supplanted, the 1984 opinion for a unanimous Supreme Court by Chief Justice Rehnquist in United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 reassures us that it has not. See also the widely acclaimed opinion of Judge Henry Friendly in United States v. Maybury, 274 F.2d 899 (2d. Cir. 1960).

Maryland became a part of this national tide at least as early as 1953, joining 37 other states in tolerating inconsistent verdicts. What then are the Maryland origins of the legal proposition around which the appellant’s case revolves? Those origins are incontrovertibly rooted in June of 2008. They are rooted in Price v. State.

Price expressly and affirmatively changed the law in Maryland. At the outset of the opinion, 405 Md. at 18 , Price pointed out that the Maryland law with respect to inconsistent verdicts is governed by neither statute nor rules of court. The Maryland law with respect to the various forms of verdict inconsistency is exclusively a product of Maryland’s interpretation of the common law: 10 Referred to by many judges and legal scholars in those days as the “tenth justice.” 15 In Maryland, the principles concerning inconsistent verdicts have judicially developed over time as part of this State’s common law. Unlike several other jurisdictions, there are no Maryland statutes or promulgated procedural rules which relate to inconsistent verdicts generally or relate to specific types of inconsistent verdicts.11 (Emphasis supplied.) Judge Eldridge’s opinion in Price squarely acknowledged that for at least 55 years, numerous opinions of the Court of Appeals had consistently held that in jury trials in criminal cases, an inconsistency between an acquittal on one charge and a conviction on another would not be interfered with by the courts and would not mandate the reversal of the conviction.

The appellant’s present argument would have had no footing then. In Leet v. State, 203 Md. 285, 293 , 100 A.2d 289 (1953), Chief Judge Sobeloff quoted with approval from both Dunn v. United States and Steckler v. United States in holding for the Court of Appeals: While it is true that a finding of guilt on two inconsistent counts will be declared invalid in Maryland, Heinze v. State, it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count. (Emphasis supplied.) See also Williams v. State, 204 Md. 55, 64 , 102 A.2d 714 (1954) (“[A] conviction on one count may stand even in the face of an inconsistent acquittal on another count.”); Ledbetter v. State, 224 Md. 271, 273-74 , 167 A.2d 596 (1961); Johnson v. State, 238 Md. 528, 540-46 , 209 A.2d 765 (1965); Ford v. State, 274 Md. 546, 552-53 , 337 A.2d 81 (1975) (“Therefore, based on this near unanimous authority, it is clear that the 11 Judge Eldridge’s opinion, 405 Md. at 23 , set out the lawful authority of the Court of Appeals to change, if change seemed called for, the common law of Maryland. The sole purpose of this analysis, indeed its expressed purpose, was to justify the change in inconsistent verdict law that Price was therein announcing. 16 mere assertion that the petitioner’s conviction should be reversed because of the jury’s verdicts, pertaining to this multicount indictment, of guilty on one count and not guilty on the other counts, were inconsistent, cannot be embraced by this Court as sufficient reason to vitiate Ford’s conviction.”); Mack v. State, 300 Md. 583, 601 , 479 A.2d 1344 (1984) (Trial court’s denial of relief “was consistent with this Court’s…holdings that inconsistent verdicts can stand.”); Shell v.