Sequiera v. State

HEADNOTE: SEQUEIRA V. STATE, No. 2148, Sept. Term, 2019 USE OF A FIREARM IN THE COMMISSION OF A FELONY OR CRIME OF VIOLENCE - - MULTICOUNT INDICTMENT CHARGING PREDICATE CRIMES - - UNITY OF OPERATION OF MULTICOUNT INDICTMENT - - CONVICTION BASED ON UNCHARGED PREDICATE CRIMES - - CONSPIRACY TO USE A FIREARM IN THE COMMISSION OF A FELONY OR CRIME OF VIOLENCE. After an altercation with one of three security guards working at a restaurant, during which the defendant claimed to resolve disputes by shooting, the defendant rounded up two accomplices, made threats against the security guards, waited in his car in the surface parking lot outside the restaurant for the guards to come outside, and then drove his car forward and through the lot while an accomplice shot a gun out of the window. At the same time, two restaurant patrons were walking to their car in the parking lot. One of the security guards fired back.

No one was injured. In a multicount indictment, the defendant was charged with several counts of first-degree assault (felonies/crimes of violence), each of which named a security guard as a victim, and with use of a firearm in the commission of a felony or crime of violence and conspiracy to do the same, neither of which named a victim. The State’s original theory of prosecution was that the defendant committed first- degree assaults (as an accomplice) against the security guards. During trial, when there was conflicting evidence about the direction in which the shots were fired, the State took the position that the defendant could be convicted of the charged first-degree assaults against the security guards, or uncharged first-degree assaults against the two restaurant patrons.

The court approved a verdict sheet and jury instructions that would permit both theories of prosecution to go to the jury. Ultimately, the defendant was acquitted of all first-degree assaults against the security guards but was convicted of use of a firearm in the commission of a felony or crime of violence (first-degree assault) and conspiracy to commit that crime. Held: Judgment of conviction for use of a firearm in the commission of a felony or crime of violence reversed. When the State charges a defendant by multicount indictment with lead felonies/crimes of violence and with use of a firearm in the commission of a felony/crime of violence and it is not facially evident that the use of a firearm stemmed from an entirely separate incident, the indictment operates as a whole and the predicate crime that is an element of the compound crime of use of a firearm takes its meaning from the lead counts of the indictment.

Because the defendant was charged with predicate crimes against specific victims, he could not be convicted of use of a firearm based on uncharged predicate crimes against other possible victims. The trial court erred by allowing jurors to be instructed in such a way that they could base convictions for use of a firearm and conspiracy to use a firearm on uncharged first-degree assaults. Because the defendant was acquitted of the first-degree assaults against the security guards, the only predicate crimes that could have supported his use of a firearm conviction, he cannot be retried on the use of a firearm count. With respect to the conspiracy to use a firearm count, the acquittals of the charged predicate crimes do not have the same effect, as the essence of the crime is the agreement to commit the predicate crime(s).

The evidence was legally sufficient to support a conviction of conspiracy to use a firearm to commit the charged crimes of first-degree assault against the security guards. It was not legally sufficient to support a conviction of conspiracy to use a firearm to commit the uncharged crimes of first-degree assault against the restaurant patrons walking through the parking lot, however. Because of the trial court error, we cannot tell whether the conspiracy was based on the former or the latter. For that reason, the judgment of conviction is vacated and the conspiracy count is remanded for further proceedings.

Circuit Court for Montgomery County Case No. 135196C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2148 September Term, 2019 ______________________________________ MARCOS DANIEL SEQUEIRA v. STATE OF MARYLAND ______________________________________ Kehoe, Gould, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Eyler, Deborah S., J. ______________________________________ Filed: April 1, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act * Leahy, J., did not participate in the Court’s (§§ 10-1601 et seq. of the State Government Article) this document is authentic. decision to designate this opinion for 2021-04-01 09:22-04:00 publication pursuant to Maryland Rule 8-605.1. Suzanne C. Johnson, Clerk A jury in the Circuit Court for Montgomery County convicted Marcos Sequeira, the appellant, of use of a firearm in the commission of a felony or crime of violence (“use of a firearm”), for which he was sentenced to 17 years in prison, and conspiracy to commit that offense, which the court merged for sentencing. The jury acquitted Sequeira of three counts of first-degree assault, each of which named a specific victim.

Those were the only counts sent to the jurors that were predicate crimes for the use of a firearm charge. The use of a firearm and related conspiracy counts did not identify a particular victim or victims. This case raises as a primary issue whether, when a multicount indictment identifies particular victims in the counts charging predicate crimes, the defendant may be convicted of use of a firearm not in the commission of those charged predicate crimes but in the commission of uncharged predicate crimes against other victims in the same incident. We answer that question in the negative and shall reverse Sequeira’s conviction for use of a firearm.

For the reasons we explain, that count cannot be retried. We shall vacate Sequeira’s conviction for conspiracy to commit the charged predicate crimes and remand for further proceedings on that count. FACTS AND PROCEEDINGS The incident giving rise to this case took place at 2 a.m. on December 1, 2018, on the surface parking lot of a strip shopping center in Silver Spring. As Sequeira drove his car through the lot, in front of Sole D’Italia restaurant, one of his two passengers fired a handgun out the window.

At the time, restaurant security guards Jermaine Brown, Desmond Brown, and Alvester Jacobs, and disc jockey John Callahan, were standing on the sidewalk in front of the restaurant and two customers, Rashad Hall and William Powell, were walking through the parking lot to their vehicle. Fortunately, no one was injured. Sequeira and Quinnton Brown, one of Sequeira’s passengers, were separately charged in identical multicount indictments (differing only in their names) setting forth the following counts, in this order: • Counts One, Two, and Three: Attempted first-degree murder • Counts Four, Five, and Six: Conspiracy to commit first-degree murder • Counts Seven, Eight, and Nine: First-degree assault • Counts Ten, Eleven, and Twelve: Conspiracy to commit first-degree assault • Count Thirteen: Use of a firearm in the commission of a felony or crime of violence • Count Fourteen: Conspiracy to commit use of a firearm in the commission of a felony or crime of violence. In each of counts one through twelve, one of the security guards was named as the victim.

The last two counts did not name a victim. Sequeira and Brown were tried jointly. The State called thirteen witnesses, including the security guards1, Callahan, Hall, police officers who responded to the scene, and a firearms examiner. The evidence included surveillance footage from four Sole D’Italia cameras, three inside and one outside.

The following was adduced. The three security guards were working at Sole D’Italia on the night of November 30, 2018, and into the early morning hours of December 1, 2018. Desmond and Jacobs 1 We will use first names for Jermaine Brown and Desmond Brown to distinguish them from Quinnton Brown. -2- were armed. At 11:43 p.m., Sequeira parked his black Mercedes coupe directly in front of the restaurant and entered, alone.2 Around midnight, he overheard Jermaine tell a regular patron that she and her friend could not use the men’s restroom and heard the patron make a “smart” remark in response.

Jermaine noticed Sequeira standing nearby and, recognizing him as the bartender’s ex-boyfriend, said, “no offense,” adding, “just doing my job.” Sequeira looked Jermaine “up and down” and replied, “I’m good.” Jermaine asked, “sure you good[?]” and suggested they could go outside to have a conversation. Jermaine thought Sequeira was acting “defensive.” The patron and her friend alerted Desmond and Jacobs about the “heated discussion.” Desmond and Jacobs tried to de- escalate the situation, which Desmond described as “tense.” Jacobs heard Sequeira tell Jermaine, “I don’t fight, I shoot.” Sequeira left the restaurant around 1:00 a.m., an hour before closing time. He returned at 1:41 a.m., accompanied by Brown and Daniel Rivas.3 This time, he did not park his car near the entrance. The three men entered the restaurant and walked through the bar area, where the security guards saw them.

All three security guards described Brown as a tall African American man wearing a gray or black hooded jacket and Rivas as a Hispanic man with his hair in a bun and wearing a grey puffy coat. 2 Because, as mentioned, there was surveillance footage introduced into evidence, we use the time stamps from the videos rather than the time estimates from the witnesses. The time stamps on the videos were advanced by one hour and, thus, we have corrected the times. 3 Rivas was not charged because he could not be located. -3- Three minutes later, Sequeira, Brown, and Rivas left. As they walked to the door, past the security guards, Sequeira told Jermaine, “I’m going to see you, OG.” Jermaine understood OG to mean “original gangster” and took the words as a threat. Brown asked Jermaine, “What’s up with you?” Jermaine also took that as a threat.

Jacobs and Desmond overheard these remarks. Jacobs characterized Sequeira’s tone as “aggressive” and said Brown got “kissing close” to Jermaine before saying, “What’s up?” Jermaine stayed inside the restaurant for a while, helping to close the bar. Desmond and Jacobs stood outside in front of the restaurant and waited for Jermaine. The interaction with Sequeira and his companions had made them concerned for Jermaine’s safety.

At 1:56 a.m., Jermaine joined Desmond and Jacobs outside.4 They stood in the parking lot, just past a row of parked cars immediately in front of the restaurant. They noticed an occupied black Mercedes coupe parked in the middle of the parking lot, facing the restaurant. All three security guards identified Sequeira as the person sitting in the driver’s seat of that vehicle. Desmond could not see the other occupants.

Jermaine saw Brown in the front passenger seat. Jacobs thought Rivas was in the front passenger seat and Brown was in the back seat, on the passenger side. A minute later, Jermaine, Desmond, and Jacobs walked back to the sidewalk right outside Sole D’Italia. Callahan, the disc jockey, had just finished packing his equipment into his Honda CRV, which was parked directly in front of the restaurant, and was standing on the sidewalk too. 4 Jermaine’s close friend Todd Caldwell was there too.

He left to buy cigarettes at a nearby gas station and was not present for the shooting incident. -4- Seconds before 2 a.m., Sequeira drove forward and turned right out of his parking space, then drove the Mercedes parallel to the sidewalk near, but not directly in front of, Sole D’Italia and then away from the restaurant.5 As he did so, an arm emerged from a window of the vehicle and began firing a gun. The security guards testified that the Mercedes continued driving away from Sole D’Italia, made another right turn, toward an exit onto Layhill Road, and then made a third right turn onto the southbound lane of Layhill Road. From this position, the shooter fired several more rounds toward the parking lot. The eyewitness testimony varied from witness to witness and internally with respect to the shooter’s location in the Mercedes and where the shots were fired.

Jermaine testified that the shooter was an African American man in the front passenger seat whose arm was clothed in a gray sweatshirt sleeve and that the shots were fired “in the direction of where [Jermaine, Desmond, and Jacobs] were [standing].” Later in his testimony, he acknowledged that the first round of shots was fired in the direction of Hall and Powell.6 In a police interview at the scene, captured on an officer’s body camera, Jermaine said, “they shot over there first[,]” meaning where Hall and Powell were walking. 5 The State theorized that Sequeira was aware of the surveillance cameras and did not want the Mercedes to be captured on video. 6 None of the testimony established a link between the security guards and Hall and Powell or that they even knew each other. We are using Hall and Powell’s names instead of “the two men walking across the parking lot” for ease of discussion. -5- According to Jacobs, a “black arm” emerged from the rear passenger side window of the Mercedes and fired shots in his direction. He returned fire. He agreed that he may have told officers at the scene that the shots were fired in the direction of Hall and Powell, one of whom was wearing a yellow construction vest.

Desmond testified that an African American man’s arm holding a gun came out of the passenger’s window on the side of the Mercedes closest to the restaurant. He did not say where the shots were fired but acknowledged telling a police officer at the scene that the passenger fired the gun in the direction of a man on the parking lot who was wearing a neon hooded sweatshirt. Callahan testified that he heard gunshots and saw a flash from near the Mercedes but could not say where the shots came from. He agreed that he had told the police at the scene that the gunshots were not close to him and it seemed as if the shooter had fired into the air.

Hall testified that Powell was wearing a bright yellow vest. He explained that, as he and Powell were walking across the parking lot, he saw someone shooting out of the passenger side of a Mercedes. He did not think the shots were directed at him. He acknowledged that he may have told police at the scene that the shots were fired into the air.7 Surveillance footage and crime scene evidence showed that, in response to the gunshots, Jacobs fired five shots in the direction of the Mercedes.

At the same time, 7 Powell did not testify. -6- Desmond dropped to the ground near Jacobs, Jermaine took cover behind Callahan’s vehicle, and Callahan ran around to the back of the restaurant. Officer Anthony Copeland was on patrol nearby and heard the first volley of gunshots. He responded immediately and saw the Mercedes speeding through the shopping center parking lot. He heard a second volley of gunshots and saw muzzle flashes coming from the Mercedes.8 He remained at the scene and interviewed witnesses.

In an excerpt from his body-worn camera footage that was played for the jury, he told another officer that it appeared that the shooter was firing into the air. The Mercedes was found parked on a nearby side street in front of a residence. It had two bullet holes in the trunk and a shell casing was lodged between the trunk and the driver’s side of the car. Ballistics evidence showed that five shell casings located near the door to Sole D’Italia had been fired from Jacobs’s gun.

Two shell casings were found between 60 and 112 feet north of Sole D’Italia, in front of a bank and an animal hospital in the shopping center, and the casing found in the Mercedes was fired from a single weapon, but not Jacobs’s weapon. A Honda Civic parked on the surface lot across from Sole D’Italia in the same row as the Mercedes had three bullet holes in it. 8 According to Officer Copeland, the third right turn the Mercedes made still was within the shopping center parking lot and was not onto Layhill Road as the security guards had said. Also, according to Officer Copeland, the passenger fired the second round of gunshots while the Mercedes was driving south on the parking lot before making a left and then a right out of a different exit into the southbound lane of Layhill Road. -7- At the outset of the trial, the prosecutor’s theory of the case - - as explained in opening statement - - was that, in retaliation for his run-in with Jermaine earlier that night, Sequeira drove his car through the parking lot while Brown shot at the three security guards. At the close of the State’s case-in-chief, the prosecutor nol prossed the conspiracy to commit attempted first-degree murder counts.

The defendants moved for judgments of acquittal on the remaining charges, arguing that the evidence was legally insufficient to show that either one of them had acted with an intent to kill or to frighten or harm Jermaine, Desmond, or Jacobs. They maintained that if the court granted judgments of acquittal on the attempted murder and first-degree assault counts, the use of a firearm count would fail as a matter of law because there could not be a conviction for a predicate crime. The prosecutor countered that even though all the first-degree assault counts in the indictments named the security guards as victims, reasonable jurors could find that Sequeira and Brown had committed first-degree assaults against Hall and Powell. Therefore, if the defendants were found not guilty of the attempted murder and first- degree assault counts, they still could be found guilty of the use of a firearm count, as it did not specify a victim.

The prosecutor emphasized that there was ample evidence that Brown had fired a weapon in the parking lot and that Sequeira had acted as his accomplice and co-conspirator. And, regardless of the targets of the shooting, Brown’s conduct was an assault of the attempt-to-frighten variety, committed with a firearm, making it a first-degree assault. See Md. Code (2002, 2012 Repl. Vol.), § 3-202(a)(2) of -8- the Criminal Law Article (“CL”) (it is a first-degree assault to “commit an assault with a firearm”).

The court denied the motions on the assault and use of a firearm counts and reserved ruling on the attempted murder counts. Sequeira called the restaurant patron he had seen Jermaine speaking to that night. She testified that Jermaine behaved aggressively toward Sequeira, not the other way around, and that Sequeira never said anything about shooting during that encounter. Brown called a private investigator who had taken measurements in the parking lot.

The State did not present a rebuttal case. At the close of the evidence, the court granted motions for judgment of acquittal on all the attempted murder counts and denied the renewed motions for judgment of acquittal on the remaining charges. Accordingly, the jury would receive for decision three counts of first-degree assault (each naming one security guard), three counts of conspiracy to commit that crime (same), one count of use of a firearm in the commission of a felony or crime of violence (no victim named), and one count of conspiracy to commit that crime (same). In a discussion about the proposed verdict sheet for each defendant, defense counsel again raised the issue of the viability of the use of a firearm count should the jurors acquit Sequeira and/or Brown on the first-degree assault counts.9 On behalf of both defendants, Brown’s lawyer moved to amend the proposed verdict sheets (one for each 9 First degree assault is a felony and a crime of violence.

See CL § 3-202(c); Md. Code (2011 Repl. Vol., 2018 Supp.), § 5-101(c)(3) of the Public Safety Article (“PS”). -9- defendant) so that if they found the defendant not guilty on the first-degree assault counts, the jurors would “be instructed and by operation of the [verdict] sheet to go no further and not to give a verdict [on the use of a firearm count and the conspiracy to use a firearm count].” Once again, the prosecutor took the position that the jurors could find the defendants guilty of use of a firearm if they found that a first-degree assault was committed against another victim, such as Hall or Powell. “And if [the jurors] find that a first-degree assault was committed, just not against [any of the security guards] . . . the jury can still find that [the defendants] used a handgun in a crime of violence.” Brown’s lawyer responded that the defendants were not charged with first-degree assault against anyone other than the security guards “so there would be no underlying conviction.” The court asked, “how would we know whether [the jurors] have found that [the defendants] have committed a crime of violence if that’s not on the verdict sheet against anyone . . . [?]” The prosecutor responded that the jurors simply had to find the elements of first-degree assault beyond a reasonable doubt, and the identity of the victim is not one of the elements. If they were to return a verdict of not guilty on the first-degree assault counts, all of which named a victim, and guilty on the use of a firearm count, which did not, then it would be clear that “they found persuasive the evidence and the argument that a first-degree assault was being committed, just not against the victims named in the indictment as to the other counts. There are no named victims or named crime in the [use -10- of a] handgun count.” Ultimately, the court denied the motion to amend the proposed verdict sheets.10 The court and counsel moved on to jury instructions.

The parties agreed that the court should give the pattern instructions on the intent to frighten and attempted battery varieties of second-degree assault, Maryland Criminal Pattern Jury Instruction (“MPJI- Cr.”) 4:01, as well as the first-degree assault instruction that specifies that committing an assault with a handgun is a first-degree assault. See MPJI-Cr. 4:01.1A. Brown’s lawyer pointed out that there were spaces in the second-degree assault instruction in which the “(name)” of the victim was to be inserted.11 He asked the court to insert “Jermaine, 10 Before the ruling, the prosecutor argued that, under Crispino v. State, 417 Md. 31 (2010), the jurors were not required to unanimously decide “what theory or what modality of commission is utilized.” In other words, some of the jurors could find there had been a first-degree assault against one of the victims named in the indictment and others could find there had been a first-degree assault against Hall or Powell. So long as they were unanimous that a first-degree assault was committed, they could convict the appellant and Brown on the use of a handgun counts.

After counsel for Brown and the prosecutor traded remarks over whether Crispino had any application, and the court read that case, the court denied the motion to amend the verdict sheet. Neither side raises the Crispino argument on appeal. 11 The intent to frighten second-degree assault instruction reads: Assault is intentionally frightening another person with the threat of immediate [offensive physical contact] [physical harm]. In order to convict the defendant of assault, the State must prove: (1) that the defendant committed an act with the intent to place (name) in fear of immediate [offensive physical contact] [physical harm]; (2) that the defendant had the apparent ability, at that time, to bring about [offensive physical contact] [physical harm]; and (3) that (name) reasonably feared immediate [offensive physical contact] [physical harm]; [and] [(4) that the defendant's actions were not legally justified.] (continued…) -11- Desmond, or Jacobs” in the spaces. The prosecutor disagreed, arguing that the word “victims” should be inserted in the spaces for “(name)” and commenting that the verdict sheet would specify the victims named in the first-degree assault counts in the indictment.

She added, “if the Court agrees with the State that we can argue use of a firearm even in light of an acquittal on the counts particularizing [Jermaine], [Desmond], and Jacobs [as victims], then the jury still needs to be instructed on what it means to commit a first- degree assault[.]” The court decided the issue in favor of the State, and inserted the word “victims” in the instruction instead of inserting the security guards’ names. The assault instruction as given was: The defendants are charged with the crime of assault. Assault is intentionally frightening another person with the threat of immediate . . . offensive physical contact or physical harm. In order to convict the defendants of assault, the State must prove that the defendants committed an act with the intent to place victims in fear of immediate offensive physical contact or physical harm, that the defendants had the apparent ability at that time to bring about offensive physical contact or physical (…continued) MPJI-Cr. 4:01A (emphasis in original).

The attempted battery second-degree assault instruction provides: Assault is an attempt to cause [offensive physical contact] [physical harm]. In order to convict the defendant of assault, the State must prove: (1) that the defendant actually tried to cause immediate [offensive physical contact with] [physical harm to] (name); (2) that the defendant intended to bring about [offensive physical contact] [physical harm]; and (3) that the defendant’s actions were not consented to by (name) [or not legally justified]. MPJI-Cr. 4:01B (emphasis in original). -12- harm, and that the victims reasonably feared immediate offensive physical contact or physical harm. Assault is an attempt to cause offensive physical contact or physical harm.

In order to convict the defendants of assault, the State must prove the defendants actually tried to cause immediate offensive physical contact or physical harm to the victims, that the defendants intended to bring about offensive physical contact or physical harm, and that the defendants’ actions were not consented to by the victims. The defendants are charged with the crime of first-degree assault. In order to convict the defendants of first-degree assault, the State must prove all of the elements of second-degree assault and also must prove that the defendants used a firearm to commit assault. . . . (Emphasis added).

The court also instructed the jurors that the defendants were charged with “use of a firearm in the commission of a felony crime of violence,” that the “felony crime of violence in this case is assault in the first degree[,]” and that to convict on the use of a firearm count, “the State must prove that the defendants used a firearm in the commission of an assault in the first degree.” After the court finished instructing the jury, counsel approached the bench and the court asked, “Anything else?” Brown’s lawyer objected to an instruction on concealment and flight and to an accomplice liability instruction. Sequeira’s lawyer objected to the “[s]ame exact thing[,] . . . flight, concealment, accomplice liability” and also to a non- pattern instruction on conspiracy. Counsel for Brown joined in the objection to the conspiracy instruction. The prosecutor said she was satisfied with the instructions.

Before the lunch recess, the court asked counsel if “everyone had a chance to look at the verdict sheets?” Counsel for Brown replied, “Yes.” The trial judge said they could -13- “talk about that,” if necessary, before the case was sent to the jury. Sequeira’s lawyer replied, “Thank you.” In closing argument, the prosecutor noted that it was undisputed that shots were fired by someone inside the Mercedes and that that amounted to use of a handgun. Predicting that defense counsel would argue that the jurors “can’t find these men guilty of shooting at Jermaine, [Jacobs], and Desmond because they were, in fact, actually shooting at William Powell and Rashad Hall[,]” she argued that, although that was a defense to the first-degree assault counts, all of which named a security guard as a victim, it was not a defense to the use of a firearm counts, “because if you’re committing a first- degree assault on either Rashad Hall or William Powell, well that’s still a crime of violence for use of a firearm.” After closing arguments, none of the parties asked to revisit the verdict sheets. The case was sent to the jury that afternoon.

The verdict sheet for each defendant listed the counts remaining for decision in order but renumbered them. For Sequeira’s verdict sheet, for Counts One and Four, the jurors were asked whether they found Sequeira not guilty or guilty of first-degree assault against Jermaine and conspiracy to commit first-degree assault against Jermaine. That pattern repeated itself for Counts Two and Five (first-degree assault and conspiracy to commit first-degree assault against Desmond) and Counts Three and Six (first-degree assault and conspiracy to commit first-degree assault against Jacobs). There was no question asking whether the jurors found the defendant guilty of first-degree assault and conspiracy to commit first-degree assault against anyone else. -14- The final two questions on the verdict sheet read: COUNT 7: USE OF A FIREARM IN THE COMMISSION OF A CRIME OF VIOLENCE AND/OR FELONY (Previously Count 13) As to Count 7, use of a firearm in the commission of a crime of violence and/or felony, we the jury find the Defendant: ____________ ___________ NOT GUILTY GUILTY COUNT 8: CONSPIRACY TO USE A FIREARM IN THE COMMISSION OF A CRIME OF VIOLENCE AND/OR FELONY (Previously Count 14) As to Count 8, conspiracy to use a firearm in the commission of a crime of violence and/or felony, we the jury find the Defendant: ____________ _____________ NOT GUILTY GUILTY The verdict sheet for Brown was the same.

The jurors deliberated and returned a verdict the next day. They found Sequeira guilty of conspiracy to commit first-degree assault against Jermaine, which is not a felony or crime of violence12; use of a firearm in the commission of a felony or crime of violence; and conspiracy to use a firearm in the commission of a felony or crime of violence. They acquitted him on all other counts, including the three first-degree assault counts. The jurors found Brown guilty of use of a firearm in the commission of a felony or crime of violence and conspiracy to commit that crime and acquitted him on all other 12 See Rudder v. State, 181 Md. App. 426, 436 (2008) (“Conspiracy is a . . . common law misdemeanor[.]”); Townes v. State, 314 Md. 71, 75 (1988) (“A conspiracy to commit a crime exists as an offense separate and distinct from the substantive crime that is the object of the conspiracy.”); PS § 5-101(c) (defining a crime of violence to include first- and second-degree assault and an attempt to commit those crimes). -15- counts, including the three first-degree assault counts and conspiracy to commit first- degree assault against Jermaine.

No objection was raised before or after the jurors hearkened to their verdict and were dismissed. Sequeira filed a timely motion to vacate or for new trial. He argued that his conviction for conspiracy to commit first-degree assault against Jermaine could not stand because Brown, the only other alleged conspirator, was acquitted on that count. See Hurwitz v. State, 200 Md. 578, 592 (1952) (adopting the “rule of consistency,” that is, “[a]s one person alone cannot be guilty of a conspiracy, when all but one conspirator are acquitted, conviction of the remaining conspirator cannot stand”).

He also argued that because he had been acquitted on all the first-degree assault counts, he had not been convicted of a felony or crime of violence, and therefore the use of a firearm conviction could not stand. Finally, he argued that the evidence was legally insufficient to sustain his convictions. The State conceded that Sequeira’s conviction for conspiracy to commit first- degree assault against Jermaine had to be set aside. It argued that his conviction on the use of a firearm count was not legally inconsistent with his acquittals on the first-degree assault counts against Jermaine, Desmond, and Jacobs because the evidence was legally sufficient to prove the elements of first-degree assault perpetrated against Hall and Powell.

The State also argued that Sequeira had waived any inconsistent verdict argument by not immediately raising it before the jurors were discharged. -16- The court vacated Sequeira’s conviction for conspiracy to commit first-degree assault against Jermaine but otherwise denied his motion. Sequeira noted this timely appeal13, presenting two questions, which we have rephrased: I. Was Sequeira properly convicted of and sentenced for use of a firearm in the commission of a felony or crime of violence and conspiracy to use a firearm in the commission of a felony or crime of violence given that he was not convicted of any underlying felony or crime of violence?

II

Was trial counsel ineffective for failing to object to certain voir dire questions? We answer Question I in the negative and, given our disposition, do not address Question II. DISCUSSION I. (a) Sequeira contends the trial court committed several errors that culminated in his being convicted of use of a firearm without being convicted of the predicate crime of first-degree assault, and that such a conviction, and his conspiracy conviction, cannot stand.

He advances several arguments in support: • The court erred by denying his motion to include an order of deliberation instruction in the verdict sheet and, relatedly, by erroneously instructing the jurors so as to permit them to convict him of use of a firearm even if they acquitted him of first-degree assault; 13 Brown noted an appeal to this Court, but voluntarily dismissed it on July 29, 2020. See Quinnton Brown v. State of Maryland, No. 1946, Sept. Term 2019. -17- • The court violated his due process rights by allowing the State to pursue the theory that he committed a first-degree assault against victims other than those named in the indictment, without his being given notice of that until midway through the trial; • His sentences for use of a firearm and conspiracy to use a firearm are illegal because he was not charged with either crime against Hall or Powell; • The evidence was legally insufficient to convict him of use of a firearm as an accomplice to Brown because there was no proof that he had advance knowledge that Brown was armed; and • The evidence was legally insufficient to convict him of conspiracy to commit first- degree assault against Hall and Powell because there was no proof that he had conspired with Brown to commit that crime against Hall and Powell. In response, the State argues lack of preservation and waiver and, alternatively, lack of merit: • Sequeira did not preserve and waived his order of deliberation argument by not objecting after the court instructed the jury and approved the verdict sheet. In any event, the court properly declined to give an order of deliberation instruction because the use of a firearm count did not identify a specific victim and the evidence permitted the jurors to acquit Sequeira on the first-degree assault counts and convict him on the use of a firearm count. • To the extent Sequeira is making an argument based on inconsistent verdicts, he waived that argument by not objecting before the jurors were discharged.

In any event, the verdicts were not inconsistent. • The appellant’s due process argument is an allegation of a defect in the indictment that he did not raise before trial or by motion to dismiss the use of a firearm count during trial, thereby forfeiting his right to raise the issue on appeal. If addressed, the indictment was not defective for failure to name a victim in the use of a firearm count. • The evidence was legally sufficient to convict the appellant of use of a firearm and conspiracy to commit that crime and the sentences imposed are not illegal. -18- (b) CL section 4-204, entitled “Use of firearm in commission of crime,” states at subsection (b) that a person may not, use a firearm in the commission of a crime of violence, as defined in § 5- 101 of the Public Safety Article, or any felony, whether the firearm is operable or inoperable at the time of the crime. A “firearm” includes a handgun. CL § 4-204(a)(2).

As noted, first-degree assault is both a felony and a crime of violence under section 5-101(c) of the Public Safety Article. The elements of use of a firearm, put simply, are (1) the defendant used a firearm; and (2) the defendant did so in the commission of a felony or crime of violence (“predicate crime”). Hallowell v. State, 235 Md. App. 484, 507 (2018). Use of a firearm is what is commonly referred to as a “compound crime,” that is, a crime that has another crime (that we are calling the predicate crime) as one of its elements.

McNeal v. State, 426 Md. 455 , 468 n.10 (2012). In Maryland, the offense of use of a firearm was created in 1972, as part of the General Assembly’s comprehensive “scheme to curb the commission of violent crimes involving the use of handguns.” Broadway v. State, 23 Md. App. 68, 75 (1974) (footnote omitted). See Ch. 13, Acts 1972 (approved March 27, 1972 and effective from date of passage). The offenses established were codified as Article 27, §§ 36B through 36F, under the subheading “Handguns,” with use of a firearm (then denominated use of a handgun), codified as subsection 36B(d).

In 2002, with the revision of the Maryland Criminal Code, subsection 36B(d) became CL section 4-204. Minor non-substantive language changes were made over the years, including changing the name of the crime -19- from use of a handgun to the more expansive use of a firearm. (For consistency, other than in quotations, we shall refer to the crime as use of a firearm.) A few years after the legislation creating use of a firearm was enacted, the Court of Appeals addressed the interplay between the predicate crime (or crimes) on which a use of a firearm conviction is based and the use of a firearm offense itself. In Ford v. State, 274 Md. 546 (1975), the defendant was charged by multicount indictment with several crimes, including use of a firearm, all arising out of the armed robbery of a taxi driver.

At trial, the crimes of robbery with a dangerous and deadly weapon, robbery, assault, and use of firearm were sent to the jury for decision. The jury acquitted the defendant of all crimes except use of a firearm, on which it convicted him. Before the Court of Appeals, the defendant offered two arguments as to why his conviction could not stand. First, he read language in section 36B(d) directing that a defendant found guilty of use of a firearm be sentenced for that crime “in addition to any other sentence imposed by virtue of commission of said felony [or crime of violence]” to mean that a defendant only could be sentenced for use of a firearm if he also was sentenced for the predicate felony or crime of violence.

Therefore, he argued, a defendant only could be sentenced for use of a firearm if also convicted of the predicate crime, as one cannot be sentenced without being convicted. Second, the acquittals on all the predicate crimes negated an element of the use of a firearm crime, and therefore the evidence was legally insufficient to support his conviction, and the convictions were inconsistent. -20- The Court rejected both arguments. On the first, which is most relevant to the case at bar, the Court explained that, although the statute “requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the [defendant] used a handgun during the commission of either a felony or crime of violence as a prerequisite to being convicted of” use of a firearm, the statutory language makes clear that the use of a firearm offense is separate from the predicate offense. Id. at 550-51 .

Accordingly, a defendant convicted of use of a firearm does not need to have been charged with, and therefore does not need to have been convicted of, the predicate crime: [A]n individual on trial for the [use of a firearm] charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the [use of a firearm crime]. Id. at 551 . The Court interpreted the sentencing language in section 36B(d) to mean that, when the predicate crime is charged and the jury convicts on both crimes, the sentence for use of a handgun must be in addition to the sentence for the predicate crime. On the second argument, the Court held, in conformity with the then-existing law on inconsistent verdicts in criminal cases, that an acquittal of the predicate crime that is inconsistent with a finding of guilt of the use of a firearm crime will stand because the jury considers them separately.

In the years after Ford was decided, the Maryland appellate courts developed a body of case law concerning inconsistent verdicts returned in cases tried on predicate crimes charged with use of a firearm. Generally, inconsistent verdicts by juries in criminal cases were accepted. In Mack v. State, 300 Md. 583, 597 (1984), the Court, -21- recognizing that a jury’s acquittal of the predicate crime and conviction of use on a firearm is legally inconsistent, held that, to “minimize the possibility of inconsistent verdicts” being returned by juries when multicount indictments are tried, an order of deliberation instruction must be given, if requested. See also State v. Williams, 397 Md. 172, 189 (2007) (“It has been the position of this Court that inconsistent verdicts in jury trials are permissible in criminal cases”) (footnote omitted).

The Mack Court further held that trial courts have discretion to set aside inconsistent verdicts of guilt. Inconsistent verdicts in bench trials were not acceptable, however. Shell v. State, 307 Md. 46, 55-56 (1986) (inconsistent acquittal on predicate crime of violence and conviction of use of a firearm will not be tolerated in a bench trial); Williams v. State, 117 Md. App. 55, 69-71 (1997) (where defendant had been convicted of assault with intent to maim and use of a firearm in the commission of a felony or crime of violence, and the assault conviction was vacated on appeal because of an instructional error, the appellate court was required to vacate the use of a firearm conviction as well, to avoid a court producing inconsistent verdicts). In Price v. State, 405 Md. 10 (2008), the Court of Appeals changed Maryland common law to hold that, in most circumstances, inconsistent jury verdicts in criminal cases are not acceptable.

Price did not involve the crime of use of a firearm but did involve another compound crime: possessing a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. See CL § 5-621(b)(1). A jury had acquitted the defendant of the charged drug trafficking crime and had convicted him of the possessing a firearm crime. The Court reversed the possessing a firearm conviction, and -22- expressly overruled Ford, Mack, and State v. Williams, on the issue of inconsistent verdicts in criminal jury trials.

In a concurring opinion, Judge Harrell proposed limits on the change to Maryland common law, including that the rejection of inconsistent jury verdicts in criminal cases be confined to legally inconsistent verdicts and not apply to factually inconsistent verdicts. Id. at 35-38. (In McNeal, 426 Md. at 459 , the Court adopted that suggestion.) He also advocated for the change not to apply to inconsistent jury verdicts rendered in separate trials, drawing a comparison to an exception to the “rule of consistency” in criminal conspiracy cases that excludes conspiracy verdicts rendered by different juries in separate trials. Id. at 38 (citing Gardner v. State, 286 Md. 520, 524-25 (1979), and State v. Johnson, 367 Md. 418, 430 (2002)).

Consistent with Gardner, Judge Harrell pointed out that the State need not charge more than one conspirator, and drew this comparison: As a parallel, the Majority’s opinion should not be read to require that the State even charge an underlying offense in order to maintain “consistency.” Thus, Price could be convicted of possession of a handgun with a nexus to drug trafficking without being charged and tried for drug trafficking. Id.14 14 In Gardner, the Court of Appeals stated, with respect to a charge of conspiracy: [W]hile the evidence at the trial of a conspirator must show that he and at least another are guilty of forming an illegal scheme, it is not necessary that more than one person be convicted . . . . The rule of consistency has been held not to apply when A has been convicted of conspiracy and B has been granted immunity, or when B is dead, unknown, untried, unapprehended, or unindicted. In these and other situations in which there has been no judicial determination of the guilt or innocence of the alleged co-conspirators, i.e., (continued…) -23- Maryland’s body of case law on inconsistency between a jury’s guilty verdict on the offense of use of a firearm and not guilty verdict on the predicate