Teixeira v. State

THIEME, J. One of the questions presented in this appeal is whether a jury can be reconvened after discharge, but before the jury has dispersed. Carlos Teixeira challenges his convictions for armed carjacking, carjacking and associated offenses because he thinks the jury, sitting in the Circuit Court for Baltimore City, rendered inconsistent verdicts that are legally repugnant. The State responds at the outset that because Teixeira’s objection below came too late—after the jurors were dismissed from the courtroom-his appellate complaint falls victim to procedural default. The State follows up with the assertion that the disputed verdicts are at most factually inconsistent, and must be permitted to stand as such verdicts have been tolerated in the past by judges in Maryland.

For the reasons that follow, we shall hold, first, that Teixeira’s challenge to the inconsistent verdicts has been preserved and that the verdicts at issue are not legally inconsistent. We shall therefore affirm in all respects. Introduction It is unnecessary to recite the underlying facts in any but a summary fashion because for the most part “they [otherwise] do not bear on the issues we are asked to consider.” Fitzpatrick v. Robinson, 723 F.3d 624, 628 (6th Cir.2013). See ⁶⁶⁷ generally Hill v. State, 418 Md. 62, 66 , 12 A.3d 1193 (2011); Cure v. State, 195 Md.App. 557, 561 , 7 A.3d 145 (2010) (only brief summary necessary), aff'd on other grounds, 421 Md. 300 , 26 A.3d 899 (2011); Washington v. State, 180 Md.App. 458 , 461-62 n. 2, 951 A.2d 885 (2008) (recitation of full record unnecessary because no challenge made to sufficiency of evidence).

This case has as its genesis a carjacking and robbery at about 11:00 p.m. on October 3, 2010 on Linnard Street in Baltimore City. Lionel Torrance was in his car—a Crown Victoria—when he was approached by two men. Mr. Torrance said that one of the men, later identified as Teixeira, pointed a handgun at him and demanded money while the second told him to open the trunk of his vehicle. Torrance described the weapon as “an automatic gun,” although he was unsure of the exact type.

He described hearing the gunman operate the slide mechanism. Torrance gave the gunman $45, left his car and started across the street. When one of the assailants ordered him to “Come here,” Torrance fled, hid in an alley and watched as his stolen car drove by with Teixeira at the wheel. The police were summoned, and Sgt.

Warren Stephens spotted Torrance’s vehicle about an hour after the carjacking. The car stopped at 3200 North Avenue and parked. Sgt. Stephens stopped some distance away, and parked at a point from which he could observe the Crown Victoria.

A man, later identified as Teixeira, was “standing outside the passenger door with the door opened” communicating with another person who was at the wheel. Teixeira and the driver left the Crown Victoria and walked up North Avenue and passed Sgt. Stephens’s car. When other patrol officers arrived at the scene, Teixeira fled on foot, leaving his companion behind.

Officers soon caught up with Teixeira. No handgun was recovered at that time, but police would later find a “BB caliber 4.6mm Crow 77.” Following a jury trial, Teixeira was convicted of armed carjacking, carjacking, conspiracy to commit armed carjack ⁶⁶⁸ ing, armed robbery, robbery, unauthorized removal of property and both first and second-degree assault. The jury acquitted him of use of a handgun in the commission of a crime of violence and wearing, carrying and transporting a handgun. The trial court handed down consecutive sentences of twenty, ten and ten years respectively for the armed carjacking, armed robbery and conspiracy.

The remaining counts were merged. Discussion Asserting that the trial court erred by not directing the jury to resume deliberations, Teixeira maintains that the jury’s acquittal of the handgun charges renders inconsistent those guilty verdicts on charges that were based on the use or possession of a dangerous weapon. Although Teixeira claims that his objection to the inconsistent verdicts was “timely,” the State disagrees, and posits that Teixeira waited until after the jury had been discharged before voicing his objection. Standard of Review We review de novo the question of whether verdicts are legally inconsistent.

This is so because we review the elements of the offense at issue in light of the jury instructions. See State v. Blackmon, 208 N.C.App. 397 , 702 S.E.2d 833, 837-38 (2010) (noting that majority of North Carolina cases employ de novo standard of review); State v. Hazel, 106 Conn.App. 213 , 941 A.2d 378, 384 (2008) (resolution of claim of inconsistent verdicts presents question of law subject to plenary review), cert. denied, 287 Conn. 903 , 947 A.2d 343 (2008). See also People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132 , 431 N.E.2d 617, 619 (1981) (record reviewed only as to jury charge, without consideration as to accuracy of charge). Cf.

United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir.2012) (“de novo standard of review applies to the legal determination of whether a defendant may upset a guilty verdict because it is inconsistent with an acquittal.”) (citation omitted). ⁶⁶⁹ A. After the jury found Teixeira guilty on all but the weapons counts, the jurors were polled and hearkened. The trial court then excused them: THE COURT: Members of the jury, on behalf of the parties, the attorneys, and myself, personally, I think [sic] you for your service and attention that you’ve given to this case. I also want to advise you that you have in front of you your verifications of your service here. Madam Clerk in a few moments will be returning to you your electronic devices.

I’m going to ask that you return momentarily to the jury deliberation room so that you can retrieve your personal belongings and Madam Clerk will give you your electronic devices there. Thank you again for your service. Have a good evening. After the jurors were excused, defense counsel alerted the trial court to his concern about the verdicts: [DEFENSE COUNSEL]: Can we discuss before the jury leaves, Your Honor?

Because ... it’s my understanding and I’m not quite clear about this because it’s never happened to me before. But the jury has found Mr. Teixeira not guilty of the handgun charges but they did find him guilty of armed carjacking and robbery with a deadly weapon. I believe these are inconsistent verdicts. I don’t believe that he could—that there is—I mean, I don’t know what the scenario is, legally, under which they can find that he had no handgun, which is I believe what this verdict is saying.

But at the same time, he was armed during a carjacking and armed with a deadly weapon during a robbery. It’s my understanding and I know the law, the inconsistent verdict law is basically not well formed on this, but that I need to raise this while the jury is still available if we can address that somehow with the jury. I mean, as to the inconsistency in the verdict as I see it. ⁶⁷⁰ After briefly hearing from both parties, the court directed the clerk to “[h]ave the jury remain” while further argument was presented. At the outset, the prosecutor appeared to agree that the issue was preserved, but that there was some confusion on this point: [PROSECUTOR]: So, it is now preserved, Your Honor, for a later consideration.

I believe it’s inappropriate to bring out the jury to have them go back over what was going on in deliberations. Deliberations are at an end. The trial court found that the verdicts were factually inconsistent, and explained her ruling as follows: THE COURT: Okay. Thank you.

You may both have a seat. First of all, I take note of the verdict sheet in this case. I also take note of the elements of each, of the charges in this case. I note that second—the elements for second-degree assault as well as the elements for first-degree assault.

The Defendant was charged with first-degree assault and in order for the Defendant to be convicted of first-degree assault, the State had to prove all of the elements of second-degree assault and also prove that either the Defendant used a firearm to commit the assault or that the Defendant intended to cause serious, physical injury in the commission of the assault. With respect to the issue of carjacking or at least the charge of carjacking of which the jury found the Defendant guilty, the Defendant was also found guilty of armed carjacking. In order to convict the Defendant of armed carjacking, the State had to prove the elements of carjacking and also had to prove the Defendant committed the carjacking by using a dangerous weapon. A dangerous weapon is an object that is capable of causing death or serious, bodily harm.

With respect to conspiracy, the Defendant was also charged with conspiracy. In order to prove that the Defendant was convicted, the—in order to convict the Defendant of conspiracy, the State had to prove that the Defendant entered into an agreement with at least one other person to ⁶⁷¹ commit the crime of carjacking and that the Defendant entered into the agreement with the intent that carjacking be permitted. With respect to the issue of robbery and particularly, I’m looking at the elements of armed robbery, robbery with a dangerous weapon, I should say. The Defendant was charged with robbery, with a dangerous weapon.

And, in fact, was found guilty by this jury. In order to convict a Defendant of robbery with a dangerous weapon, the State had to prove all of the elements of robbery and also had to prove that the Defendant committed robbery by using a dangerous weapon. Again, a dangerous weapon is an object that is capable of causing death or serious bodily injury. The trial court then addressed the not guilty verdicts.

The two charges that Mr. Teixeira was not found guilty of was the charge of—were the charges of carrying a handgun or concealed or openly with the purposes of injuring or killing another. That charge is, again, carrying a handgun with the purpose of injuring or killing another. In order to convict the Defendant, the State must prove that the Defendant wore, carried, or transported a handgun that was within his reach and available for his immediate use with the deliberate purpose of injuring or killing another person. A handgun was described to this jury by agreement of Counsel, as a pistol, revolver, or other firearm capable of being concealed on or about the person and is designed to fire a bullet by the explosion of gunpowder.

The Defendant was found not guilty of that charge. The Defendant was also found not guilty of the charge of use of a handgun in the commission of a felony or crime of violence. The Defendant, in order to have been convicted of that crime, the State had to prove that the Defendant committed the crime of violence of carjacking and that the Defendant used a handgun under the commission of the carjacking. A handgun again, as agreed by Counsel, was defined to this jury as a pistol, revolver, or other firearm capable of being concealed on or about the person and which is designed to fire a bullet by the explosion of gunpowder. ⁶⁷² Use of a handgun means that the Defendant actively employed a handgun.

Mere possession of a handgun at or near the crime, without active employment is not sufficient. Although the term use connotes something more than potential use. There need not be the kind that actually produces harm, but only the kind that produces a fear of harm or forces by some means. Such means including brandishing, displaying, and striking with, firing or attempting to fire a handgun in furtherance of the carjacking.

The trial court continued: The requirements that are—the elements that are required for the use of a handgun in the commission of a felony or crime of violence and the elements that are required for carrying a handgun for the purpose of injuring or killing another, are not the same elements that are required for all of the charges that the Defendant was found guilty of. Particularly, the charges of armed carjacking, carjacking, robbery with a deadly weapon and robbery in first-degree assault. In addition to that, I take note of the case of State v. Williams.[ 1 ] In that case, a trial court judge found the Defendant guilty after a bench trial of attempted robbery with a dangerous weapon, assault in the first-degree, and use of a handgun in the commission of a crime of violence and a felony in violation of Section 3-403 and 3-202 of the Criminal Article and 4-204 of the Subtitle. Based on the determination, “That the Defendant had aided and abetted in the crimes, it was inconsistent the Court found for the trial court to have found him not guilty of wear and carry, or transporting a handgun in violation of that section.

As one could not use a handgun without possessing it. And as there was no explanation offered as to the inconsistency, vacatur (phonetic) of the convictions was required. As to the convictions, however, for attempted robbery and attempted theft, they did not require vacatur because there ⁶⁷³ was no requirement of proof of handgun use in order to sustain those convictions. That is exactly the situation that we have here.

With respect to armed carjacking, carjacking, robbery with a deadly weapon, first-degree assault. There is no necessity for use of a handgun in order to convict the Defendant. The—Counsel for the Defense argues that the only (inaudible) provided to the Court or through this trial was the bb gun. I cannot go into the mind of the jury and determine that perhaps they believed that that bb gun was, in fact, somehow connected to the Defendant or not.” The trial court then concluded: Based on my analysis of the verdict sheet, the applicable case law, considering the arguments that have been made by Counsel, I find that the verdict does not rise to a level of a legally inconsistent verdict and the motion that Defense Counsel has made to this court is denied.

B. We take up the State’s assertion that Teixeira’s complaint is not before us because defense counsel did not raise this issue before the jurors were discharged. To address this argument in the context of the court’s actions, we consider the Court of Appeals’ decision in Price v. State, 405 Md. 10 , 949 A.2d 619 (2008). The Court in Price rewrote Maryland law on inconsistent verdicts, turning the tolerance afforded by Maryland courts for such jury choices on its head. Judge Harrell penned a concurring opinion that places the Court’s ruling in its proper context, and also explained how a challenge to such verdicts may fail through procedural default.

Judge Harrell warned that the failure to object when the court has an opportunity to remedy the error “constitutes waiver.” Id. at 42 , 949 A.2d 619 . The concurring opinion forcefully reiterated that “a defendant must note his or her objection to allegedly inconsistent verdicts prior to the verdicts becoming final and the discharge of the jury.” Id. at 40, 949 A.2d 619 . In Tate v. ⁶⁷⁴ State, 182 Md.App. 114 , 957 A.2d 640 , cert. denied, 406 Md. 747 , 962 A.2d 373 (2008), this Court reiterated that message: Judge Harrell [in his concurring opinion in Price ] explained that more frequently than not it is the defendant who is the beneficiary of the jury’s merciful inconsistency, and that the defendant should be allowed to enjoy the option of accepting the jury’s boon of probably undeserved lenity. What the defendant may not do, however, is to have his cake and eat it too.

The concurrence explained: The jury may render a legally inconsistent verdict to show lenity to the defendant. The defendant should not be foreclosed from accepting the jury’s lenity as a result of the holding of the Majority opinion. Nevertheless, we should not permit the defendant to accept the jury’s lenity in the trial court, only to seek a windfall reversal on appeal by arguing that the jury’s verdicts are inconsistent. Accordingly, a defendant must note his or her objection to allegedly inconsistent verdicts prior to the verdicts becoming final and the discharge of the jury.

Otherwise, the claim is waived. “If a defendant claims that a verdict is inconsistent to the point of being self-destructive, he must present that claim to the circuit court before the jury is discharged; if he does not, he waives the claim.” Tate, 182 Md.App. at 132 , 957 A.2d 640 (quoting Price v. State, 405 Md. at 40 , 949 A.2d 619 ) (emphasis in original). Although Teixeira did not question the verdicts until after the jurors were excused from the courtroom, the trial judge directed the clerk to hold the jury shortly after counsel raised this issue. The venire remained subject to recall and was finally dismissed only after the trial judge heard argument and ruled. On the record before us, we conclude that his question about the propriety of the verdicts was timely.

In Hoffert v. State, 319 Md. 377 , 572 A.2d 536 (1990), the defendant had been charged with attempted first and second degree murder, robbery with a deadly weapon and use of a handgun in the commission of a crime of violence. The jurors were instructed that they had to find Hoffert guilty of one of the ⁶⁷⁵ first three charges before they could find him guilty on the handgun charge. The jury foreman announced not guilty verdicts on the first three charges, but did not announce a verdict on the fourth charge—the handgun use count. After a jury poll on the three verdict counts, and after the clerk hearkened the jury only to the first charge, the trial judge informed the venire that its “service in this case is now complete.” Hoffert, 319 Md. at 381 , 572 A.2d 536 .

The Hoffert trial judge was interrupted by a juror, who reminded him of the fourth charge—the handgun use count. When the judge queried the foreman about that charge, the foreman answered “guilty.” This surprise result prompted a recess and research by the court and counsel. Following this interlude,