Stuckey v. State

DAVIS, Judge. We are principally presented, upon this appeal, with the question of whether to overturn two manslaughter convictions which were the consequence of the reckless and wanton conduct of appellant Deante Stuckey. At the conclusion of a bench trial, the Circuit Court for Baltimore County found appellant not guilty of negligent driving and reckless driving and guilty of, inter alia, two counts of manslaughter by automobile, possession of cocaine with intent to distribute, and possession of marijuana with intent to distribute. 1 Appellant ¹⁴⁹ was sentenced to the jurisdiction of the Commissioner of Correction for two consecutive ten year terms for manslaughter by automobile, concurrent terms of twenty years and five years for possession with intent to distribute cocaine and possession with intent to distribute marijuana, respectively, the sentences for possession of narcotics to run consecutive to one ten year term for manslaughter. On this appeal, appellant asks us whether the trial court erred when it found him guilty of two counts of manslaughter by automobile after having found him not guilty of reckless driving and negligent driving.

Appellant also challenges the sufficiency of the evidence to sustain his convictions for possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and manslaughter by automobile. We conclude that the court’s acquittal of appellant on the reckless driving and negligent driving charges precludes a finding of guilt on the two counts of manslaughter by automobile and hence we are constrained to overturn the manslaughter convictions, obviating the need to consider the sufficiency of the evidence to sustain the manslaughter convictions. We affirm appellant’s convictions for possession of cocaine with ¹⁵⁰ intent to distribute and possession of marijuana with intent to distribute. FACTUAL BACKGROUND On February 21, 2000, at approximately 9:00 p.m., a car driven by Irving Edlow and a car driven by appellant collided near the intersection of Smith Avenue and Maurlene Road in Baltimore County, Maryland.

Edlow was killed in the accident, but his two passengers — wife, Joan, and friend, Molly Bleakman — survived. In the vehicle driven by appellant; passenger Dawn Johnson was killed, while appellant and passengers Damien Green and Tania Wise survived. Recovered from the car driven by appellant after the accident were fifty glass vials of crack cocaine and fifteen small packets of marijuana from under the “front left driver’s seat on the floorboard”; a bag containing crack cocaine was found on the driver’s seat. Appellant was charged in a twenty-three count indictment with two counts of manslaughter by automobile, possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, negligent driving, reckless driving, and related offenses.

Several witnesses described the events leading up to the collision. Baltimore County Police Officer Kevin Jones testified that, when he attempted to stop appellant who was driving a white Oldsmobile Intrigue in the 5800 block of Park Heights Avenue, appellant took off “at a high rate of speed.” Officer Jones and an officer in a police cruiser gave chase. Wise and Green were in the vehicle with appellant when appellant was stopped by the police. Wise testified that, when she saw a police officer behind the car, appellant “put his feet [sic] on the gas and took off’ and continued to “ride the car faster, faster.” Wise further testified, on direct examination, that she estimated the speed of their vehicle to be at least eighty miles per hour.

Appellant changed lanes and he passed more than one dozen cars during the chase. ¹⁵¹ According to Green, appellant “was going kind of fast,” as he eluded police. Despite Green’s admonitions to slow down more than once, “[b]ecause [appellant] was driving fast,” appellant continued to speed. While standing near the corner of Smith Avenue and Seven Mile Lane smoking a cigarette, Batina Davis observed appellant’s vehicle traveling at “a high rate of speed.” Davis estimated the car’s speed in excess of seventy miles per hour. Another witness, Howard Blaecman, was driving his car on Smith Avenue at the time of the chase and watched appellant’s car pass him; he recalled turning to his passenger and commenting, “man, that is fast.” Approximately five minutes after appellant’s car passed him during the chase, Blaecman saw the same white car again at the scene of the accident.

The car that appellant was driving struck Edlow’s car as Edlow was making a U-turn at the intersection of Maurlene Road and Smith Avenue. Joan Edlow testified that she did not see any cars coming as they were making the U-turn. After the collision, Wise and appellant kicked out the windshield and fled from the scene. Wise was apprehended by Officer Jones a short distance from the scene.

Appellant was not apprehended until sometime later. Baltimore County Police Officer William Pumphrey, who was qualified as an expert in traffic accident reconstruction, examined the scene and the vehicle driven by appellant. The posted speed limit on Smith Avenue, according to Officer Pumphrey, was thirty miles per hour. Unable to accurately determine the speed of either car at the time of impact, he stated that appellant had been “[g]oing at a high rate of speed.” Inspection of the car driven by appellant revealed the baggie containing fifty vials of crack cocaine and fifteen small packets of marijuana on the floorboard under the driver’s seat.

A baggie containing crack cocaine was also found on the driver’s seat. Appellant was driving a rental car from Avis Rent-A-Car (Avis) at Baltimore-Washington International Airport. The car had been rented by Robert Hall and Howard Steptoe on ¹⁵² February 11, 2000. Steptoe testified that, when Hall paid for the rental, he saw Hall give the keys to appellant.

Thereafter, Steptoe saw appellant on at least two occasions with the car— once driving it and once standing next to it, with no one inside. David Evans, an employee with Avis, testified that it is normal procedure that every car turned in and prepared for rental is a “quick turn around ... [in which] the car is ... regased, tires checked, fluids checked, vacuumed, windows cleaned, ashtrays emptied, all trash and everything is removed from the car.” Evans further testified that the procedure includes inspection of the trunk, glove compartment, and the console area underneath the seats to reveal any property that may have been left by the previous renter. There was nothing to indicate that the procedure was not followed with the car Hall and Steptoe rented. At the conclusion of the presentation of evidence, the trial court found appellant not guilty of the charges of reckless driving and negligent driving and guilty of the charges of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute.

Also, based on appellant’s recklessness, speed, and pre- and post-impact conduct, the trial court found appellant guilty of two counts of manslaughter by automobile. Additional facts will be supplied as needed in our analysis. LEGAL ANALYSIS I Relying on the fact that the trial court found appellant not guilty of reckless driving and not guilty of negligent driving, then finding appellant guilty of two counts of manslaughter by automobile shortly thereafter, appellant assigns error to the court’s finding of guilt as to manslaughter because [t]hese guilty verdicts cannot stand. Once the court had found [a]ppellant not guilty of negligent driving and not guilty of reckless driving, the court was precluded under: (1) Maryland common law; (2) Maryland common law dou ¹⁵³ ble jeopardy principles; and (3) the Fifth Amendment double jeopardy principles, from finding [a]ppellant guilty of manslaughter by automobile.

Citing Shell v. State, 307 Md. 46, 54 , 512 A.2d 358 (1986), he further posits that “inconsistent verdicts by a court in a criminal case are not ordinarily permitted as a matter of Maryland common law.” He reminds us, citing Ford v. State, 274 Md. 546, 553 , 337 A.2d 81 (1975), that, by contrast, inconsistent verdicts by juries in criminal cases are generally tolerated. Ultimately, or possibly as a backstop position, relying on Ferrell v. State, 318 Md. 235 , 567 A.2d 937 (1990), double jeopardy’s sibling, collateral estoppel, is offered as a bar to his two manslaughter convictions. Of the multi-faceted assail on his manslaughter convictions, the Blockburgef 2 test [or what has come to be known as the “required evidence” test variety of double jeopardy] appears to be the touchstone of appellant’s argument. Procedurally, relief from a subsequent prosecution would be via the doctrine of autrefois acquit, normally interposed by way of a plea.

Seizing upon our seemingly unconditional language that “appellant failed utterly to raise this issue [the double jeopardy claim] at the trial now under review and nothing is, therefore, preserved for appellate review,” in Howell v. State, 56 Md. App. 675, 678 , 468 A.2d 688 , cert. denied, 299 Md. 426 , 474 A.2d 218 (1984), cert. denied, 469 U.S. 1039 , 105 S.Ct. 520 , 83 L.Ed.2d 408 (1984), the State’s principal argument is that the double jeopardy claim is not preserved. In deciding whether there is merit to appellant’s claim that his manslaughter convictions are barred by the findings of not guilty of negligent driving and reckless driving, we must first determine which, if any, of the theories advanced by appellant pertain to the case at hand. Not suggested by either party is what may in actuality have happened, to wit: the unfortunate findings and their sequence were simply a slip of the judicial ¹⁵⁴ tongue by an accomplished and experienced trial judge attempting to wade through a sea of charges against appellant. Of note, in responding to appellant’s claim that his convictions for manslaughter are precluded by not guilty findings of the lesser included charges, the State puts virtually all of its proverbial “eggs in one basket,” i .e., that the issue is not preserved.

The State does make a valiant effort, much as an afterthought, that, “although the court below found that [appellant’s] conduct did not meet the sufficiency of the two statutory offenses under the Transportation article, ... there is no doubt the evidence was sufficient for manslaughter by automobile.” That argument is supported only by the court’s finding that appellant’s speeding at seventy or eighty miles per hour and his failure to keep a lookout for other vehicles constituted “wanton and reckless disregard.” Thus, the State, in essence, argues that, notwithstanding the court’s finding that appellant was not guilty of negligent driving or reckless driving, the findings of guilt of excessive speed and failing to keep a proper lookout for other vehicles provided independent support for appellant’s manslaughter convictions. For the reasons set forth, infra, we reject the State’s “independent” evidentiary predicate for appellant’s convictions for manslaughter. II Having set forth appellant’s several related theories, the precise language the trial court employed in entering its findings of not guilty and guilty of the charges before it and the sequence of those findings is essential to which of the theories, if any, are applicable and whether there is merit to the State’s assertion that appellant’s challenge to his manslaughter convictions was not preserved. In finding appellant not guilty of reckless driving and not guilty of negligent driving, the court said: THE COURT: Reckless driving and negligent driving. [PROSECUTOR]: Your Honor, for all the reasons I outlined in my argument for automobile manslaughter, in my ¹⁵⁵ opinion, I would ask the [c]ourt to find obviously there is negligence, but there is a lot more than that.

It is not only reckless, this goes beyond— THE COURT: But the only thing is speed. You got to have merger. Not guilty as to both. All right.

Let me tell you where I am. Anybody want to hear — here is what I’m going to do. I have found him not guilty of 7, not guilty of 8, not guilty of 9, not guilty of 10, guilty of 11, not guilty of 12, 13 merges into 11, guilty of 14, guilty of 15, guilty of 16, guilty of 17, guilty of 18, 19 merges into 20, 20 is failure to control speed, guilty, 21 [reckless driving] is not guilty, 22 [negligent driving] is not guilty, and 23 was not guilty. Immediately thereafter, the court found appellant guilty of the first count of possession with intent to distribute cocaine and the third count of possession with intent to distribute marijuana and merged the second and fourth counts of simple possession of cocaine and marijuana, respectively, into the convictions for possession with intent to distribute.

In finding appellant guilty of manslaughter by automobile, the court opined: With regard to manslaughter by automobile, I’m convinced that he is guilty beyond a reasonable doubt as to both. The individuals who testified that he was speeding, I believe their testimony. I believe that although not as definitive as some people with a stopwatch would be able to offer, that 70 or 80 as testified to was the speed that this gentleman was going. With regard to whether it constitutes reckless and wanton conduct, I find that it does.

He failed to maintain a proper lookout. He was going so fast he did not see the Camry. I believe the people — the lady when she says to me I was there, I looked, I saw, and it was safe to make that turn. He was going so fast to get away from the police at that particular point that he didn’t care.

He did not maintain a proper lookout. He was definitely doing excessive speed under the circumstances. ¹⁵⁶ I believe the witnesses who testified to that, he thought that out. He flew from the scene. He didn’t care about anyone else but himself, responsibility, not getting caught.

Anybody else was absolutely of no importance to him. Nature and force of the impact indicates to me that he was going very fast. He caused the accident, not anyone else. His speed, his intent on full speed ahead, let’s get away from these police, the nature and injuries and damage to the vehicle involved is another factor which comes into my determination.

The nature of the neighborhood and the environment where the accident took place. It is not school time at 2:80 in the afternoon, but it is a residential neighborhood that indicates to anyone that you do not go that fast. His pre[-] and post[-]impact conduct. Pre meaning a police car is pulling up next to me, I know I’m doing things wrong; let us floor it, something that bodes against him, plus his post[-]impact conduct in getting out and running away and saying the devil with anyone else.

I find those factors do exist and they convince me that this is wanton and reckless disregard. That car at this [appellant’s] hands was an absolute engine of destruction at that particular time, waiting for an accident to come because he was trying to get away from the police, he had drugs in the car, something else is going on. Whatever it is that he was trying to get away, he pushed them down, pushed it to the point that he was speeding as fast as he could possibly. He was an absolute engine of destruction at that particular point and unfortunately two people are dead as a result of that.

I accept the testimony that the impact caused by him was the nexus of the death of both of these individuals. I do know what you said about Mr. Green did not remember much as far as speed. I find Mr. Green has a very selective memory, just enough to get him off his own case but he is not going to go to anything else. Guilty of 5 and 6. ¹⁵⁷ Our task, before addressing the State’s non-preservation argument, simply put, is to determine what áre the legal consequences which flow from the court’s not guilty verdicts.

Because there could be no plea in bar prior to trial and the theories argued on appeal were not presented below, we must decide whether appellant’s manslaughter convictions are precluded under Maryland common law double jeopardy principles, Fifth Amendment double jeopardy principles under the U.S. Constitution, inconsistent verdicts by a court in criminal cases under Maryland common law, or collateral estoppel under decisional authority. See Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970). Inconsistent Verdicts Inconsistent verdicts in a jury trial 3 are generally tolerated under Maryland law. See Shell, 307 Md. at 54 , 512 A.2d 358 ; Ford, 274 Md. at 553 , 337 A.2d 81 ; see also Johnson v. State, 238 Md. 528, 541-42 , 209 A.2d 765 (1965)(holding that inconsistent verdicts may stand because, while the verdicts are perhaps the result of compromise or mistake, there should be no speculation into such matters).

Inconsistent verdicts by a ¹⁵⁸ trial judge, however, are not tolerated. See United States v. Maybury, 274 F.2d 899, 903-05 (2d Cir.1960); see also Shell, 307 Md. at 55-58 , 512 A.2d 358 (stating that Ford does not justify inconsistent verdicts from a trial judge and discussing Johnson, supra, with approval); Johnson, 238 Md. at 543-45 , 209 A.2d 765 (discussing Maybury with approval). In Shell , the appellant argued that he should not have been convicted by the trial judge of use of a handgun in the commission of a felony or crime of violence after the trial judge had acquitted him of the predicate felonies or crimes of violence — attempted first degree and second degree murder. We affirmed the trial court’s decision.

The Court of Appeals granted appellant’s petition for a writ of certiorari and considered whether acquittal of the predicate felony or crime of violence required acquittal of the charge of use of a handgun in the commission of the felony or crime of violence; the Court reversed the appellant’s conviction of the handgun offense. In holding that the verdicts were inconsistent at trial, the Court opined that commission of a felony or crime of violence is an essential ingredient of the ... handgun offense. It is an element of the crime. If the jury determines that the accused did not commit a felony or crime of violence but is guilty of use of a handgun in the commission of such felony or crime of violence, the jury has obviously rendered inconsistent verdicts.

Id. at 53 , 512 A.2d 358 . The inconsistency resulted when the trial court acquitted appellant of the predicate felony, which was an element of the crime for which he was subsequently convicted. In Johnson , the Court of Appeals, quoting Maybury , held: There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts.... We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in “vagaries” in the ¹⁵⁹ disposition of criminal charges that, for historic reasons, has been granted the jury....

We reverse for inconsistency ... because we can have no confidence in a judgment convicting Maybury of one crime when the judge, by his acquittal of another, appears to have rejected the only evidence that would support the conviction here. Johnson, 238 Md. at 543 , 209 A.2d 765 (quoting Maybury, 274 F.2d at 903, 905 ). In Shell , the Court of Appeals relied on Maybury and its own decision in Johnson , holding that it would be the height of appellate inconsistency for us to depart from the principles of Johnson and Maybury and hold that inconsistent verdicts in non[-]jury trials will generally be permitted and will be sustained in the present case. Shell, 307 Md. at 57 , 512 A.2d 358 .

Based on the above, pellucidly inconsistent verdicts by a trial judge, under Maryland law, cannot stand. In the case at bar, appellant was acquitted of negligent driving and reckless driving but was convicted of manslaughter by automobile, pursuant to Md.Code (1996 Repl.Vol, 1999 Supp.), art. 27, § 388: Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, locomotive, engine, car, streetcar, train, vessel, or other vehicle in a grossly negligent manner, shall be guilty of a felony to be known as “manslaughter by automobile, motor vehicle, locomotive, engine, car, streetcar, train, vessel, or other vehicle,” and the person so convicted shall be sentenced to jail or the house of correction for not more than 10 years, or be fined not more than $5,000 or be both fined and imprisoned. Pursuant to § 388, “grossly negligent ” operation of a motor vehicle is clearly an element of the crime of manslaughter by automobile. By its terms, grossly negligent driving involves a higher degree of negligence than does mere negligent driving.

Therefore, one convicted of a crime of which grossly negligent ¹⁶⁰ driving was an element, he or she would also be guilty of negligent driving. Appellant, acquitted of the charge of negligent driving, was subsequently convicted of manslaughter by automobile. Appellant’s guilt of manslaughter by automobile was predicated on grossly negligent driving, which rendered him irrefutably guilty of the lesser offense of negligent driving. The verdicts were inconsistent.

While the Court of Appeals has held that inconsistent verdicts in bench trials will not be tolerated, the Court set forth an apparent exception to that rule in Johnson . WTien a trial judge, on the record, explains an apparent inconsistency in the verdicts and, in doing so, demonstrates that the court’s action was proper and that there was no unfairness, the verdicts will be sustained. See Shell, 307 Md. at 56 , 512 A.2d 358 (citing Johnson, 238 Md. at 545 , 209 A.2d 765 ). In the case at hand, however, the Johnson exception does not apply, because the trial judge gave no explanation, on the record, for his inconsistent verdicts.

It should be noted that the State has offered no response in its brief to appellant’s claim of error based on inconsistent verdicts. Unlike its response to the double jeopardy argument, patently, it was impracticable for appellant to argue inconsistent verdicts “to the trial court prior to [his] conviction for manslaughter by automobile,” as the State suggests appellant was required to do to preserve his double jeopardy claim. Double Jeopardy: Fifth Amendment, U.S. Constitution; Maryland Common Law Appellant’s claim of error bottomed on double jeopardy guaranteed by the Maryland common law and the Constitution of the United States is summed up in Gianiny v. State, 320 Md. 337 , 577 A.2d 795 (1990). There, The Honorable Theodore G. Bloom, specially assigned, speaking for the Court of Appeals, explains: A comparison of the two statutes clearly demonstrates that in order to prove the greater offense, manslaughter by ¹⁶¹ automobile, the State must necessarily prove the lesser offense, negligent driving.

Article 27, § 388 provides: Every person causing the death of another as the result of the driving, operation, or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner shall be guilty of a misdemeanor.... Under § 21 — 901.1(b) of the Transportation Article, one is guilty of negligent driving if he or she drives a motor vehicle in a careless or imprudent manner that endangers property or the life or person of an individual. It is obvious that the offense of negligent driving requires no proof beyond that which is required for conviction of manslaughter by automobile or motor vehicle. The traffic offense requires proof of the operation of a motor vehicle in a negligent manner, i.e., in a careless or imprudent manner that endangers property or the life or person of an individual.

Manslaughter by motor vehicle requires proof of grossly negligent driving, which necessarily includes negligent driving, plus proof that someone’s death resulted from that conduct. Under the Blockburger or required evidence test, therefore, the offenses are the same for double jeopardy purposes, and a conviction of the lesser offense bars a subsequent prosecution for the greater. Id. at 343-44, 577 A.2d 795 . Gianiny involved a fatal automobile crash which resulted in the issuance by the investigating officer of a traffic citation charging, inter alia, negligent driving.

Gianiny paid a fíne of $45 for negligent driving on January 30, 1989 and filed a motion to dismiss the manslaughter indictment returned on February 2,1989 on double jeopardy grounds. Gianiny , to be sure, addressed the applicability of double jeopardy in the context of a prior conviction rather than a prior acquittal, as is presented by the facts of the case at hand. The effect on a subsequent prosecution for the greater offense, however, is the same. ¹⁶² Nor is it significant that the prior acquittal occurred within the context of the same proceeding. In Wright v. State, 307 Md. 552 , 515 A.2d 1157 (1986), the Court of Appeals reviewed the trial judge’s grant of the appellant’s motion for judgment of acquittal on the underlying felony, i.e., the attempted robbery charge and the court’s subsequent submission to the jury of felony murder and use of a handgun in the commission of a crime of violence.

In recognizing the validity of Wright’s claim, Judge Eldridge, speaking for the Court of Appeals, explained: Since the petitioner Wright was, therefore, acquitted of the underlying offense, we believe that the later submission of the felony murder charge to the jury and Wright’s conviction of felony murder was contrary to the settled principle, under both the Fifth Amendment and Maryland common law, that an acquittal on the merits is ordinarily final and precludes further trial proceedings upon the same charge. This is true even if the acquittal is based upon an error of law or an incorrect resolution of the facts. The rule according finality to an acquittal on the merits is ordinarily applicable regardless of the nature of the post[-]acquittal criminal proceedings. Contrary to the view of the Court of Special Appeals, the rule is not limited to the situation where the government attempts to institute a wholly new prosecution on the. same charge after a judgment in an earlier prosecution.

Rather, the acquittal on the merits terminates the initial jeopardy on a charge, normally precluding any type of further criminal proceedings on the same charge or, in some instances, on a related charge. In this respect, the double jeopardy effect of an acquittal is somewhat different than that of a conviction. Id. at 562-63 , 515 A.2d 1157 (emphasis added; citations omitted). Moreover, in Farrell v. State, 364 Md. 499, 506-07 , 774 A.2d 387 (2001), Judge Eldridge, for the Court of Appeals, explicated the legal consequence of a not guilty verdict intentionally rendered by a court: ¹⁶³ In holding that an intentionally rendered verdict of “not guilty” is final and precludes, under Maryland common law, any further prosecution for the same offense, this Court in Pugh v. State, [ ] 271 Md. [701,] 705, 319 A.2d 542, 544 [ (1974) ] stated: From the earliest days, it has been clear that once a verdict of not guilty has been rendered at the conclusion of a criminal trial, that verdict is final and cannot be set aside.

Any attempt to do so by the prosecutor is barred by what at common law was the plea of autrefois acquit. Thus, in State v. Shields, 49 Md. 301, 303 (1878), our