Williams v. State

Nicholas Jabbar Williams v. State of Maryland, No. 37, September Term, 2021 ALLEGED LEGAL OR FACTUAL INCONSISTENCIES IN VERDICTS – NO- IMPEACHMENT RULE – MARYLAND RULE 5-606(b) – SUFFICIENCY OF THE EVIDENCE – Court of Appeals held that guilty verdict as to second-degree murder was not legally inconsistent with not-guilty verdicts as to first-degree assault and use of firearm in commission of crime of violence (second-degree murder) because neither offense of which defendant was acquitted is lesser-included offense of second-degree murder. In determining whether verdicts were legally inconsistent, Court considered jury instructions given by trial court and elements of offenses. Court declined to overrule McNeal v. State, 426 Md. 455, 461-62 , 44 A.3d 982, 986 (2012), in which it concluded that factually inconsistent verdicts are permissible in criminal jury trials. In addition, Court of Appeals held that trial court did not err in granting motion to strike information obtained from jurors after verdict concerning jury’s deliberations, including affidavit from one juror, and did not abuse its discretion in denying motion for new trial.

Court concluded that jurors’ statements were barred from receipt by trial court under no- impeachment rule and Maryland Rule 5-606(b), which provide that trial court may not inquire into validity of jury’s verdict based on information about jury’s deliberations obtained from jurors after verdict has been taken. Court of Appeals also held that evidence was sufficient to support convictions for second- degree murder and possession of regulated firearm while under age of twenty-one. Circuit Court for Charles County Case No. C-08-CR-18-000005 Argued: February 7, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 37 September Term, 2021 ______________________________________ NICHOLAS JABBAR WILLIAMS v. STATE OF MARYLAND ______________________________________ Getty, C.J. *McDonald Watts Hotten Booth Biran Wilner, Alan M. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. McDonald and Booth, JJ., concur. ______________________________________ Filed: March 25, 2022 *McDonald, J., now a Senior Judge, participated in the hearing and conference of this case while Pursuant to Maryland Uniform Electronic Legal Materials Act an active member of this Court.

After being (§§ 10-1601 et seq. of the State Government Article) this document is authentic. recalled pursuant to Md. Const., Art. IV, § 3A, 2022-03-25 he also participated in the decision and adoption 15:13-04:00 of this opinion. Suzanne C. Johnson, Clerk Maryland case law establishes that verdicts can be inconsistent in two ways— legally and factually. In a criminal case, verdicts are legally inconsistent where a defendant is convicted of an offense but acquitted of another offense that has the same elements as the offense of which the defendant was convicted. See McNeal v. State, 426 Md. 455, 458 , 44 A.3d 982, 984 (2012).

In other words, verdicts are legally inconsistent “where a defendant is acquitted of a ‘lesser included’ crime embraced within a conviction for a greater offense.” Id. at 458 n.1, 44 A.3d at 984 n.1. Legally inconsistent verdicts are impermissible in criminal trials. See id. at 458, 470 , 44 A.3d at 984, 991 . In a criminal jury trial, where a trial court has properly instructed a jury as to the offenses at issue and the jury nonetheless reaches legally inconsistent verdicts, the jury has, presumptively, failed to follow the jury instructions given by the court.

See id. at 458 , 44 A.3d at 984 . In a criminal case, verdicts are factually inconsistent where proof of the charged offenses involves establishing the same facts and the offenses have different legal elements, and a trier of fact acquits the defendant of one offense but convicts of the other. See id. at 458 , 44 A.3d at 984 . For instance, a guilty verdict as to possession of a regulated firearm by a disqualified person might be factually inconsistent with a not-guilty verdict as to wearing, carrying, or transporting a handgun, if there were a single set of facts in which the defendant possessed or carried a handgun after being convicted of a disqualifying crime.

See id. at 472-73 , 44 A.3d at 992-93 . Factually inconsistent verdicts are impermissible in criminal bench trials, but they are permitted in criminal jury trials. See id. at 462, 470 , 44 A.3d at 986, 991 . This is because, in a criminal jury trial, factually inconsistent verdicts “may be the product of lenity, mistake, or a compromise to reach unanimity, and [] continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it.” Id. at 470 , 44 A.3d at 991 (cleaned up).

In this case, we must determine whether a jury’s guilty verdict as to second-degree murder is legally inconsistent with not-guilty verdicts as to first-degree assault and use of a firearm in the commission of a crime of violence. We must also determine whether the trial court abused its discretion in denying a motion for a new trial based on the jury having allegedly returned inconsistent verdicts. Finally, we must determine whether the evidence is sufficient to support convictions for second-degree murder and possession of a regulated firearm while under the age of twenty-one. In the Circuit Court for Charles County, the State, Respondent, charged Nicholas Jabbar Williams, Petitioner, with first-degree premeditated murder of Cameron Marcel Townsend, use of a firearm in the commission of a crime of violence (murder), first-degree assault of Townsend, use of a firearm in the commission of a crime of violence (first-degree assault), possession of a regulated firearm while under the age of twenty-one, and wearing, carrying, or transporting a handgun in a vehicle.

The jury found Williams guilty of second- degree murder and possession of a regulated firearm while under the age of twenty-one and not guilty of first-degree assault and use of firearm in the commission of a crime of violence (second-degree murder).1 Williams’s counsel objected on the ground that the guilty verdict as to second-degree murder was legally inconsistent with the not-guilty verdict as to first-degree assault. Williams’s counsel requested that the circuit court have 1 The jury found Williams not guilty of first-degree murder and guilty of wearing, carrying, or transporting a firearm in a vehicle. -2- the jury “redeliberate” with respect to second-degree murder. The circuit court denied the request and accepted the jury’s verdicts. Williams filed a motion for a new trial, contending that statements made by jurors after the jury had been dismissed indicated that the jury misinterpreted the jury instructions on second-degree murder and other matters.

Williams attached to the motion an affidavit signed by one of the jurors in this case, containing allegations concerning the jury’s deliberations. The State moved to strike the statements in the motion for a new trial that were attributed to jurors. The circuit court granted the motion to strike, sealed the affidavit,2 and denied the motion for a new trial. Williams appealed, and, without affirming or reversing, the Court of Special Appeals ordered a limited remand to the circuit court with instruction to determine whether a firearms examiner’s report was admissible under Rochkind v. Stevenson, 471 Md. 1 , 236 A.3d 630 (2020).

See Williams v. State, 251 Md. App. 523 , 574, 546, 254 A.3d 556 , 586, 570 (2021). Although the Court of Special Appeals did not affirm the convictions, the Court rejected Williams’s contentions as to the issues before us. See id. at 538, 572, 567 , 254 A.3d at 565, 585, 582. Williams filed a petition for a writ of certiorari, which we granted.

See Williams v. State, 476 Md. 262 , 261 A.3d 239 (2021). Before us, Williams contends that the guilty verdict as to second-degree murder and the not-guilty verdicts as to first-degree assault and use of firearm in the commission of a crime of violence (second-degree murder) are inconsistent because in finding him not 2 Williams filed, and we granted, an unopposed motion to correct the record on appeal by adding the affidavit to the record under seal. -3- guilty of first-degree assault and use of firearm in the commission of second-degree murder, the jury necessarily determined that he did not shoot Townsend. Williams asserts that in returning a verdict of guilty as to second-degree murder and a verdict of not guilty as to first-degree assault and use of firearm in the commission of a crime of violence, the jury failed to follow the circuit court’s jury instructions on second-degree murder, the presumption of innocence, the burden of proof, and the requirement to decide this case based only on the evidence. Williams argues that it is permissible for the Court to consider information that he obtained from jurors after the verdict, including the affidavit accompanying the motion for a new trial, because the information demonstrates that the State failed to prove him guilty of second-degree murder.

Finally, Williams asserts that the evidence is insufficient to support the convictions for second-degree murder and possession of a regulated firearm while under the age of twenty-one. Below, in Part I, we hold that the verdicts are not legally inconsistent because the instructions given to the jury were correct and neither of the offenses at issue of which Williams was acquitted—first-degree assault and use of a firearm in the commission of a crime of violence—is a lesser-included offense of second-degree murder. In Part II, we hold that the circuit court did not abuse its discretion in denying the motion for a new trial in light of the “no-impeachment rule”—i.e., the longstanding principle that impeachment of a jury verdict with information about the jury’s deliberations obtained from jurors after -4- the verdict had been returned is not permitted. In Part III, we hold that the evidence was sufficient to support the challenged convictions.3 BACKGROUND Evidence and Bill of Particulars The Court of Special Appeals summarized the evidence as follows: Detective [John] Long testified that Williams owned and drove a black Hyundai Accent, pictures of which the State moved into evidence. [Justin] Skinner testified that on December 14, 2017, Williams drove Townsend, [Devin] Hall, and Skinner to a shoe store in Washington, D.C., for Townsend to sell shoes.

Townsend was also making drug sales throughout the day. Townsend had a handgun, which Skinner touched at some point while in the car, and which “could have been ... under a seat or in the center console ....” After stopping at a gas station, Williams dropped Hall and Skinner off around 8:00 p.m. and continued alone with Townsend. Skinner did not see any bullet holes in the seats or door of Williams’ car when he was dropped off. One resident of Holly Avenue testified that he heard gunshots around 8:30 p.m. and looked out his window to see a man next to a black car.

He described the man as standing over another person—who first responders later identified as Townsend—on the ground. According to the witness, the man leaned down, almost touching Townsend, and asked him if he was alright. The man jumped into the car and sped away. Another neighbor heard “five or six gunshots” around that time.

First responders attempted to aid Townsend but, failing to detect a pulse, declared him deceased at 8:37 p.m. The assistant medical examiner who conducted an autopsy testified that Townsend was hit with seven bullets; she recovered six bullets from Townsend’s body. She testified that four of the gunshot wounds were “rapidly fatal.” One bullet hit the base of his spinal column, which would have been immobilizing. The wound paths were generally from left to right, front to back, and slightly downwards.

Four bullets entered Townsend’s left arm before penetrating his torso. Detectives testified about physical evidence recovered from Williams’ car, bedroom, and the scene of the shooting. Investigators recovered three nine-millimeter cartridge cases from the scene and one from Williams’ car. The firearms examiner testified that the cartridges were all As a result of our holdings, the Court of Special Appeals’s order of a limited 3 remand—the correctness of which is not before us—remains in effect. -5- fired from one gun.

Forensic analysts who processed the car recovered a nine-millimeter bullet from the rear passenger-side door. According to the firearms examiner, the bullets were also fired from one gun. Analysts observed bullet holes in the front and rear passenger seats. Using a trajectory rod, they determined that the bullet lodged in the door was fired from the direction of the front left of the car and passed through the front and rear passenger seats.

Photos of the trajectory rod analysis were entered as evidence. Investigators discovered a substance that was likely blood on the driver-side floormat. They also discovered a substance that was likely blood on the heel of one of Williams’ shoes. The substance was invisible to the naked eye.

Townsend could not be excluded as a significant contributor to the DNA profiles recovered from the substances. Williams returned home on the evening of December 14 before 9:00 p.m. and did not park in front of his home. Detectives ultimately found his car on December 16 after Williams moved the car to a spot in front of his home that morning. Williams’ mother told detectives that it was unusual for him not to park in front of his home or at a nearby lot.

The day after the shooting, Williams stayed home all day and cleaned his bathroom with bleach. The bleach odor was so strong that Williams’ mother asked him to turn on the bathroom exhaust fan. Williams’ mother told detectives that it was unusual for Williams to stay home all day and unusual for him to clean the bathroom with bleach. Skinner eventually learned of Townsend’s death when he spoke to Williams over the phone on December 15.

Williams told Skinner that he had dropped Townsend off at a liquor store in Waldorf at 7:00 p.m. Skinner found this strange because the group was still driving together at that time. Williams also told Townsend’s mother and brother that he dropped Townsend off at a liquor store in Waldorf. Williams, 251 Md. App. at 567-69, 254 A.3d at 582-83 (ellipses in original).

Before trial, in a motion concerning a bill of particulars, the State described its theory of the case, which included the allegation that Williams fatally shot Townsend.4 4 A bill of particulars is “[a] formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor, usu[ally] filed in response to the defendant’s request for a more specific complaint.” Bill of Particulars, Black’s Law Dictionary (11th ed. 2019). Williams filed a demand for a bill of particulars and the State filed a response, contending that it was not required to provide a bill of particulars. Later, however, the State filed a “Motion to Amend the Bill of Particulars” even though it had not provided one. In the motion, the State included the factual allegation that Williams “shot [] -6- Jury Instructions, Verdicts, Motion for a New Trial, and Motion to Strike The circuit court instructed the jury on second-degree murder, first-degree assault, and use of a firearm in the commission of a felony5 as follows: Homicide second-degree murder.

Second-degree murder is the killing of another person with either the intent to kill, or the intent to inflict such serious bodily harm that death would be the likely result. Second-degree murder[] does not require premeditation or deliberation. In order to convict the defendant of second-degree murder, the State must prove, 1) that the defendant caused the death of [] Townsend, and 2) that the defendant engaged in the deadly conduct either with the intent to kill, or with the intent to inflict such serious bodily harm that death would be the likely result. First-degree assault.

The defendant is charged with the crime of first- degree assault. In order to convict the defendant of first-degree assault, the State must prove all of the elements of second-degree assault, and also must prove that the defendant used a firearm to commit the assault. *** Definition of assault. Assault is causing offensive physical contact to another person. In order to convict the defendant of assault, the State must prove[,] 1) that the defendant caused physical harm to [] Townsend, 2) that the conduct . . .

I’m sorry, that the contact was the result of an intentional or reckless act of the defendant and was not accidental, and 3) that the contact was not legally justified. *** Weapons, use of a handgun or firearm in the commission of a felony Townsend seven times in his upper body causing his death.” Williams filed exceptions to the motion, arguing that the State had still not provided a sufficient bill of particulars. On March 15, 2018, the circuit court conducted a hearing, granted the State’s motion, and denied Williams’s exceptions. 5 The circuit court instructed the jury on use of a firearm in the commission of a felony rather than use of a firearm in the commission of a crime of violence. That is of no consequence because second-degree murder and first-degree assault are both crimes of violence and felonies. See Md. Code Ann., Pub.

Safety (2003, 2011 Repl. Vol.) § 5- 101(c)(3), (11); Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) §§ 2-204(b), 3-202(c). -7- or crime of violence.

The defendant is charged with the crime of use of a firearm in the commission of a felony. The felonies in this case are first- degree murder and first-degree assault. In order to convict the defendant, the State must prove, 1) that the defendant committed the felonies, and 2) that the defendant used a firearm in the commission of the felonies. *** Use of a firearm includes brandishing, displaying, striking with, firing, or attempting to fire a firearm in the furtherance of the felonies. A person uses a firearm when he uses it to create fear of harm.

The defendant need not injury [sic] anyone with the firearm. Mere possession of a firearm at or near the crime scene is not sufficient. (Ellipsis in original). After deliberating, the jury returned verdicts of guilty as to second-degree murder, possession of a regulated firearm while under the age of twenty-one,6 and wearing, carrying, or transporting a handgun in a vehicle.

The jury found Williams not guilty of first-degree murder, use of a firearm in the commission of crime of violence (second- degree murder), and first-degree assault. The courtroom clerk polled the jurors without incident. Immediately afterward, Williams’s counsel requested a bench conference and objected. Williams’s counsel contended that the guilty verdict as to second-degree murder 6 The verdict sheet and the courtroom clerk’s questions of the foreperson of the jury included the term “being a minor in possession of a firearm[.]” The State charged Williams with violating Md. Code Ann., Pub.

Safety (2003, 2011 Repl. Vol.) (“PS”) § 5-133(d), under which, with limited exceptions, “a person who is under the age of 21 years may not possess a regulated firearm.” PS § 5-133(d)(1). At trial, Williams’s mother testified as to his date of birth, which indicated that Williams was twenty when Townsend was fatally shot on December 14, 2017. Although Williams was not a minor at the time, he was under twenty-one and thus prohibited from possessing a regulated firearm under PS § 5- 133(d)(1). -8- was legally inconsistent with the not-guilty verdict as to first-degree assault because the latter is a lesser-included offense of the former.

In explaining the basis for the objection, Williams’s counsel stated that “maybe it is just a logically, just bizarre verdict, and they have some other reason they acquitted him.” The State indicated that Williams’s counsel had suggested that the verdicts are factually inconsistent. Williams’s counsel countered that he had never “uttered the phrase, factually inconsistent.” Williams’s counsel requested that the circuit court have the jury resume deliberations and that it instruct the jury to find Williams not guilty of second-degree murder if the jury did not believe that he used a firearm to commit assault. The State took the position that the verdicts were not legally inconsistent because neither first-degree assault nor use of a firearm in the commission of a crime of violence is a lesser-included offense of second-degree murder. The circuit court denied Williams’s counsel’s request to have the jury resume deliberations.

Next, Williams’s counsel requested that the circuit court declare a mistrial as to “Count 3[.]”7 Williams’s counsel argued that, in the bill of particulars, the State alleged that Williams engaged in only one act involving a firearm. Williams’s counsel contended that the not-guilty verdict as to first-degree assault precluded the jury from finding Williams guilty of second-degree murder. The circuit court ruled that the verdicts would remain as rendered. Williams’s counsel asked the circuit court to note an objection In requesting a mistrial, it appears that Williams’s counsel inadvertently used the 7 term “Count 3[.]” The indictment reflects that Count 3 was first-degree assault, an offense for which the jury had returned a verdict of not guilty.

In saying the term “Count 3,” it appears that Williams’s counsel was referring to the third question on the verdict sheet, which pertained to second-degree murder. -9- to the hearkening and recordation of the verdicts that he alleged to be inconsistent. The jury verdicts were hearkened without incident. When dismissing the jury, the circuit court advised the jurors that the attorneys might want to talk to them, and that it was up to the jurors whether to do so. The circuit court took a recess.

After the recess, Williams’s counsel asked the circuit court to release Williams pending sentencing and stated that he had spoken with five of the jurors. Williams’s counsel advised that the jurors he spoke with purportedly stated that they did not believe that Williams was responsible for the shooting. The circuit court declined to change the status of Williams’s bond. Williams’s counsel filed a motion for a new trial, contending that the circuit court erred in permitting legally inconsistent verdicts and in not instructing the jury to resume deliberations and reach consistent verdicts.

Williams’s counsel advised that, after he spoke with jurors on the last day of the trial, one of the jurors contacted a member of the defense team and indicated that the juror wanted to speak further. Williams’s counsel stated that a member of the defense team met and spoke with the juror. Williams’s counsel attached to the motion for a new trial an affidavit dated July 10, 2019, made by the juror who reached out to his office after trial, that contained allegations concerning the jury’s deliberations. Williams’s counsel asserted that information provided by jurors after trial, including the one juror’s affidavit, indicated that the jury misinterpreted the jury instructions on second- degree murder and other matters.

The State filed an opposition to the motion for a new trial in which the State moved to strike any reference to statements allegedly made by jurors. The State observed that, - 10 - under case law and Maryland Rule 5-606, it is impermissible to use information obtained from a juror about the jury’s deliberations to impeach a verdict. On August 23, 2019, the circuit court conducted a hearing on the motion for a new trial and the motion to strike. After hearing arguments on the motion to strike, the circuit court granted the motion, sealed the affidavit, and stated that it would disregard the comments that Williams’s counsel made on the last day of trial about statements alleged to have been made by some of the jurors.

After hearing arguments on the motion for a new trial, the circuit court took the matter under advisement. On September 12, 2019, after brief remarks from counsel, the circuit court ruled orally from the bench, denying the motion for a new trial. On the same date, the circuit court issued an order to that effect. On September 30, 2019, Williams filed a notice of appeal.

Opinion of the Court of Special Appeals In an opinion dated July 7, 2021, the Court of Special Appeals held that the guilty verdict as to second-degree murder is not legally inconsistent with the not-guilty verdict as to first-degree assault because the latter is not a lesser-included offense of the former. See Williams, 251 Md. App. at 541, 254 A.3d at 567. The Court of Special Appeals concluded that the circuit court did not abuse its discretion in denying the motion for a new trial because the substance of the motion and attached affidavit was prohibited under Maryland Rule 5-606(b). See id. at 573, 254 A.3d at 586.

The Court of Special Appeals determined that the evidence was sufficient to support the convictions for second-degree murder and possession of a regulated firearm while under the age of twenty-one. See id. at 567, 254 A.3d at 582. - 11 - Petitions for Writs of Certiorari On August 25, 2021, through counsel, Williams petitioned for a writ of certiorari, raising the following three issues: I. Did the Court of Special Appeals err in finding the verdict was not impermissibly inconsistent?

II

In what circumstances does the no-impeachment rule set forth in Maryland Rule 5-606(b) yield to a defendant’s constitutional rights and a jury’s true verdict?

III

Did the Court of Special Appeals err in holding there was sufficient evidence to convict [] Williams of second-degree murder and possession of a firearm by a person younger than twenty-one? We granted the petition.8 See Williams, 476 Md. 262 , 261 A.3d 239 . DISCUSSION I. Allegedly Inconsistent Verdicts The Parties’ Contentions Williams contends that the guilty verdict as to second-degree murder is legally inconsistent with the not-guilty verdicts as to first-degree assault and use of a firearm in the commission of a crime of violence because the jury could not have reached the verdicts without failing to follow the jury instructions given by the circuit court. Williams states that he does not dispute that the jury instructions on the offenses at issue were correct or that, in the abstract, separate from the allegations made by the State in the charging 8 On July 29, 2021, on his own behalf, Williams petitioned for a writ of certiorari.

On August 3, 2021, through counsel, Williams filed a line explaining that he filed the petition before having legal representation and that he intended to file a superseding petition. The initial petition was denied. - 12 - documents, the offenses do not satisfy the required evidence test. Williams argues, however, that, even if the offenses do not satisfy the required evidence test, verdicts as to the offenses are legally inconsistent where the verdicts indicate that the jury failed to follow jury instructions. Williams asserts that, in this case, the jury failed to follow the jury instructions on second-degree murder, the presumption of innocence, the burden of proof, and the requirement to decide this case based only on the evidence.

Williams maintains that this is shown by the circumstance that the jury found him guilty of second-degree murder even though, as indicated by the not-guilty verdicts, the jury determined that the State had not proven beyond a reasonable doubt that he fatally shot Townsend. Williams contends that, even if the verdicts are not legally inconsistent, they cannot stand because they are “logically inconsistent.” The State responds that the guilty verdict as to second-degree murder is not legally inconsistent with the not-guilty verdict as to first-degree assault because, under the required evidence test, the latter is not a lesser-included offense of the former.9 The State argues 9 The State contends that Williams failed to preserve for appellate review the issue of whether the guilty verdict as to second-degree murder is legally inconsistent with the not-guilty verdict as to use of a firearm in the commission of a crime of violence because he did not raise the issue in the circuit court. The State acknowledges, though, that the outcome under the required evidence test would be the same if the not-guilty verdict for use of a firearm in the commission of a crime of violence were considered. In our view, the State is correct that Williams did not preserve a challenge as to legal inconsistency of the verdicts based on the not-guilty verdict as to the use of a firearm in the commission of a crime of violence.

But, because Williams raised in the circuit court the core issue of the legal inconsistency of his acquittal of an offense that was committed through use of a firearm—namely, whether the guilty verdict as to second-degree murder is legally inconsistent with the not-guilty verdict as to first-degree assault, an offense that was alleged to have been committed with the use of a firearm, we will treat the issue as preserved. The State is also correct, though, that the outcome of the analysis is the same. - 13 - that Williams essentially asks us to deviate from our case law by considering the facts of the case—as opposed to comparing the elements of the offenses at issue—in determining whether the verdicts are legally inconsistent. In addition, the State asserts that Williams in effect requests that we overrule McNeal by holding that neither factually nor logically inconsistent verdicts can stand in criminal jury trials. The State maintains that we should decline the invitation.

Standard of Review An appellate court reviews without deference a trial court’s conclusion as to whether a guilty verdict and a not-guilty verdict are legally inconsistent. See Givens v. State, 449 Md. 433, 447 , 144 A.3d 717, 725 (2016). Case Law on Inconsistent Verdicts In Price v. State, 405 Md. 10, 12, 29 , 949 A.2d 619, 620, 630 (2008), we overruled the “Maryland common law principle that inconsistent jury verdicts are normally permissible in criminal jury trials” and held that “inconsistent verdicts shall no longer be allowed” in such trials. In Price, we did not specifically indicate whether the new prohibition would apply to legally inconsistent verdicts, factually inconsistent verdicts, or both.

That said, the circumstances of Price clearly involved legally inconsistent verdicts rather than factually inconsistent ones, as the jury found the defendant guilty of possession of a firearm during and in relation to a drug trafficking offense and not guilty of all drug trafficking offenses charged. See id. at 15 , 949 A.2d at 622 ; see also McNeal, 426 Md. at 463 , 44 A.3d at 987 . In McNeal, id. at 461-62 , 44 A.3d at 986 , we clarified that the prohibition announced - 14 - in Price applies only to legally inconsistent verdicts, not jury verdicts “that are merely inconsistent factually, illogical, or ‘curious.’” Unlike Price, McNeal involved a factual inconsistency rather than a legal inconsistency, as the jury found the defendant guilty of possession of a regulated firearm by a disqualified person and not guilty of wearing, carrying, or transporting a handgun. See McNeal, 426 Md. at 472 , 44 A.3d at 992 .

We determined that the verdicts were not legally inconsistent because each offense has a unique element—i.e., neither is a lesser-included offense of the other. See id. at 472 , 44 A.3d at 992-93 . We explained that, in a criminal case tried by a jury, although a court can determine whether verdicts are legally inconsistent, there may be various explanations for factually inconsistent verdicts, including lenity, mistake, or compromise. See id. at 472- 73, 44 A.3d at 992-93 .

We explained that evaluating the jury’s considerations in reaching its verdict would involve pure speculation or necessitate an inquiry into the jury’s deliberations. See id. at 473 , 44 A.2d at 993. We unequivocally stated that a court should not “inquire into the details of the deliberations” and that we would “not risk disturbing a verdict for the wrong reasons.” Id. at 472-73, 44 A.3d at 992-93 (citation omitted). We explained that practical considerations concerning how a trial court might correct factually inconsistent verdicts weighed against applying the holding in Price to such verdicts.

See McNeal, 426 Md. at 471 , 44 A.3d at 992 . The process for correcting legally inconsistent verdicts after timely objection involves the trial court sending the jury back for further deliberations to potentially reach a different verdict as to at least one of the offenses and, if applied to factually inconsistent verdicts, would risk invading the province of the jury with regard to factual determinations. See id. at 471 , 44 A.3d at 992 . We - 15 - explained that prohibiting factually inconsistent verdicts in criminal jury trials would create practical problems because, if a jury reached factually inconsistent verdicts and the trial court instructed the jury to resume deliberating and reach verdicts that were not factually inconsistent, the instruction could “be construed by the jurors as a suggested outcome, or that their original conclusions are deemed incorrect.” Id. at 471-72 , 44 A.3d at 992 .

We stated that, by allowing factually inconsistent verdicts in criminal jury trials, “we reaffirm[ed] the historic role of the jury as the sole fact-finding body in” such trials. Id. at 472 , 44 A.3d at 992 . In State v. Stewart, 464 Md. 296, 301-02 , 211 A.3d 371, 374 (2019) (per curiam), in addressing the issue of inconsistent verdicts, we held that a conviction for robbery should not have been reversed on the ground that it was inconsistent with an acquittal of second- degree assault of the intent-to-frighten type.10 Although a five-judge majority of this Court reached this conclusion, they did so for different reasons. See id. at 301-02 , 211 A.3d at 374 (per curiam).

Three judges opined that reversal of the conviction was unwarranted because the verdicts did not indicate that the jury failed to follow the jury instructions on the offenses at issue, which were correct and generated by the evidence. See id. at 307-08 , 211 A.3d at 378 (McDonald, J., writing separately). That opinion took the position that, in determining whether verdicts are inconsistent, the key issue is whether the verdicts indicate 10 In Stewart, the Court of Special Appeals reversed the defendant’s conviction for robbery, holding that it was legally inconsistent with the acquittal as to assault because the assault was a lesser-included offense of robbery. See Stewart, 464 Md. at 300 , 211 A.3d at 373 (per curiam).

A majority of this Court agreed to reverse the Court of Special Appeals’s judgment and affirm the defendant’s conviction for robbery. See id. at 301 , 211 A.3d at 374 (per curiam). - 16 - on their face that the jury failed to follow proper jury instructions on the offenses at issue, not whether the verdicts are legally inconsistent or factually inconsistent. See id. at 304- 05, 211 A.3d at 376 (McDonald, J., writing separately). The other two judges in the majority who concluded that reversal of the conviction was unwarranted and two additional judges who would have affirmed the judgment of the Court of Special Appeals were in agreement that, consistent with our holding in McNeal, the Court’s analysis should distinguish between legally inconsistent verdicts and factually inconsistent verdicts.

See Stewart, 464 Md. at 308-09 , 211 A.3d at 378-79 (Watts, J., writing separately); id. at 335-36 , 211 A.3d at 394-95 (Greene, J., concurring and dissenting); id. at 34243, 211 A.3d at 398-99 (Hotten, J., dissenting). The two judges who were in the majority as to the outcome of the case concluded that reversal of the conviction was unwarranted because the verdicts were not legally inconsistent and determined that second-degree assault of the intent-to-frighten type is not a lesser-included offense of robbery and that the jury instructions on both offenses were correct. See id. at 308, 310 , 211 A.3d at 378-79 (Watts, J., writing separately). Their opinion took the position that, in determining whether verdicts are legally inconsistent, a court must confirm whether the jury instructions on the offenses at issue were correct and ascertain whether the offense of which the jury found the defendant not guilty is a lesser-included offense of the one of which the jury found the defendant guilty.

See id. at 310 , 211 A.3d at 379 (Watts, J., writing separately). The two judges who were not in the majority as to the outcome agreed that it was necessary to determine whether the verdicts were legally inconsistent by ascertaining - 17 - whether one of the charged offenses was a lesser-included offense of another, but would have concluded that the second-degree assault offense at issue was a lesser-included offense of robbery and thus the verdicts were legally inconsistent. See id. at 335-36, 342 , 211 A.3d at 394-95, 398 (Greene, J., concurring and dissenting); see id. at 342-43 , 211 A.3d at 398-99 (Hotten, J., dissenting). Writing separately, one of the judges, the Honorable Clayton Greene, Jr., explained: The majority view of this Court is to affirm our pronouncement in Price and McNeal that legally inconsistent verdicts will not be tolerated in Maryland.

In addition, a majority of the Court agrees that a two-step inquiry is required for determining whether a verdict is legally inconsistent. This process is outlined, accurately in my view, in Judge Watts’s opinion in this case, having been first explicated in Price and McNeal and maintained by their progeny. In sum, a reviewing court must first confirm that the trial judge correctly instructed the jury regarding the two crimes’ elements. Then, the judge must ascertain whether a crime for which the defendant was found not guilty is a lesser included offense of the crime for which the jury found the defendant guilty.

Stewart, 464 Md. at 335 , 211 A.3d at 394 (Greene, J., concurring and dissenting) (citations omitted). Writing separately, the second judge, the Honorable Michele D. Hotten, stated: “I agree with the two-step inquiry required for the determination of legally inconsistent verdicts, as provided in Judge Watts’s opinion. I do not believe we should depart from tenets of stare decisis by reconsidering the approach to determining inconsistent verdicts, as the plurality contends.” Id. at 342 , 211 A.3d at 398 (Hotten, J., dissenting) (footnote omitted).11 Thus, in Stewart, while a majority of the Court agreed on the outcome of 11 As such, both judges endorsed maintaining the distinction between legally and factually inconsistent verdicts. And, both judges applied the required elements test and concluded that second-degree assault is a lesser-included offense of robbery and that, - 18 - reversal of the judgment of the Court of Special Appeals for different reasons, a four- member majority of the Court agreed that the distinction between legally and factually inconsistent verdicts should remain, that legally inconsistent verdicts are not permissible, and that such verdicts occur where an offense of which the defendant is found not guilty is a lesser-included offense of an offense of which the defendant is found guilty.

As such, Stewart did not undermine or abrogate the analysis set forth by this Court in McNeal. Analysis Here, we conclude that the guilty verdict as to second-degree murder is not legally inconsistent with the not-guilty verdicts as to first-degree assault and use of a firearm in the commission of a crime of violence because the jury instructions on the offenses at issue were correct and neither of the offenses at issue of which Williams was acquitted is a lesser- included offense of second-degree murder. In reaching this conclusion, consistent with our case law, we consider the instructions given to the jury on the offenses at issue and the elements of the offenses. This approach is compelled by the analysis endorsed by the majority of the Court in Stewart and by McNeal, in which, when determining whether verdicts were legally inconsistent, we considered the jury instructions as to the offenses at issue and the elements of the offenses, not the facts of a particular case.

See Stewart, 464 Md. at 301-02 , 211 A.3d at 374-75 (per curiam); McNeal, 426 Md. at 472 , 44 A.3d at 992 - therefore, the verdicts were legally inconsistent. In other words, four members of the Court concluded that the distinction between legally and factually inconsistent verdicts in criminal jury trials firmly recognized in McNeal should be upheld. There was no deadlock or split between the four judges as to upholding the distinction set forth in McNeal, and, as discussed below, there is no basis under the principle of stare decisis on which to overrule McNeal. - 19 - 93. In other words, we do not, as Williams has suggested, examine whether information in the charging documents, bill of particulars, or evidence adduced at trial, i.e., the facts of the case, demonstrate that the jury has reached legally inconsistent verdicts.

It is logical that we do not address the facts of a case in ascertaining whether verdicts are legally inconsistent, given that the question necessarily involves a legal determination. Undoubtedly, the facts of a case would be relevant to the review of an alleged factual inconsistency. But, as we held in McNeal, factually inconsistent verdicts are permissible in criminal jury trials. See id. at 461-62 , 44 A.3d at 986 .

We will not intrude upon the province of the jury in an attempt to reconcile factual inconsistencies. Although Williams does not explicitly ask us to overrule Stewart or McNeal and instead contends that factually and legally inconsistent verdicts are equally offensive, there would be no way for us to adopt his position—that the State’s theory of the case leads to the conclusion that the verdicts are inconsistent—without abandoning the analysis that we applied in Stewart and McNeal and abrogating our holdings in the cases. The crux of Williams’s argument is that the indictment, the bill of particulars, and the evidence presented at trial indicate that he fatally shot Townsend, as opposed to killing him by any other method, and therefore the not-guilty and guilty verdicts are inconsistent. This allegation inextricably pertains to the facts of the case.

But, evaluating whether the jury reached inconsistent verdicts based on the facts of the case would be contrary to the approach in Stewart and McNeal. We are not persuaded by Williams’s attempt to circumvent the analysis used in Stewart and McNeal by arguing that verdicts are legally inconsistent where the facts or - 20 - circumstances of the case indicate that the jury failed to follow jury instructions. Williams’s contention appears to be at least based in part on the discussion in one of the opinions in Stewart that where verdicts are legally inconsistent there is an indication that the jury failed to follow jury instructions. See Stewart, 464 Md. at 301 , 211 A.3d at 374 (per curiam); id. at 305-08 , 211 A.3d at 376-78 (McDonald, J., writing separately).

Quoting Stewart, id. at 305 , 211 A.3d at 376 (McDonald, J., writing separately), Williams states that “[t]he real concern with a seemingly inconsistent verdict is not what label we can attach to it, but whether the jury disregarded the trial court’s instructions on the law in reaching a guilty verdict on a particular count.”12 Relying on this, Williams argues that, regardless of whether the inconsistency is factual or legal, inconsistent verdicts are not permitted because they may be the result of a jury not following instructions. Read as a whole, Stewart and McNeal make clear that legally inconsistent verdicts are impermissible 12 Williams’s argument seems to be that, in his view, there is an indication that the jury did not follow jury instructions such as the instruction on the burden of proof and the presumption of innocence, and that this is a basis for determining that the verdicts are inconsistent. However, the language from the opinion in Stewart that Williams quotes does not support his contention. See Stewart, 464 Md. at 305 , 211 A.3d at 376 (McDonald, J., writing separately).

The opinion stated that the jury instructions to be considered in determining whether verdicts are inconsistent are the jury “instructions on the law governing the charged offenses.” Id. 464 Md. at 305 , 211 A.3d at 376 (McDonald, J., writing separately) (footnote omitted). Additionally, the opinion began its analysis of the circumstances of the case by observing that there was “no dispute that the jury instructions were generated by the evidence at trial and accurately described the elements of the offenses with which [] Stewart was charged.” Id. at 307 , 211 A.3d at 378 (McDonald, J., writing separately). - 21 - and that such verdicts occur where a jury reaches irreconcilable verdicts that demonstrate it failed to follow jury instructions on the offenses at issue where the trial court’s instructions as to the offenses are correct and the offenses have the same elements. See Stewart, 464 Md. at 310 , 211 A.3d at 379 (Watts, J., writing separately); McNeal, 426 Md. at 458 , 44 A.3d at 984 . Neither Stewart nor McNeal supports Williams’s position that we must examine the facts of a case to determine whether a jury’s verdict in a criminal case is impermissibly inconsistent.

In addition, in his endeavor to have us examine the facts of his case as part of the analysis, Williams relies on the following sentence from an opinion in Stewart: “An analysis of the circumstances of this case reveals that Stewart’s conduct satisfied the elements of robbery, but not those of second-degree assault of the intent-to-frighten type.” Stewart, 464 Md. at 330 , 211 A.3d at 391 (Watts, J., writing separately). This sentence in Stewart, however, came immediately after an analysis that illustrated that it is possible to commit robbery without committing second-degree assault of the intent-to-frighten type, as was the case in Stewart. See id. at 328-30 , 211 A.3d at 390-91 (Watts, J., writing separately). Williams overlooks that the opinion in Stewart explained in detail the holding in McNeal that factually inconsistent verdicts are permissible in criminal jury trials and that the opinion expressly concluded that, to determine whether a guilty verdict and not- guilty verdict are legally inconsistent, a court must apply the test explained above, which involves a review of the instructions as to the offenses and the elements of the offenses.

See Stewart, 464 Md. at 310, 317 , 211 A.3d at 379, 383-84 (Watts, J., writing separately). Nothing in the opinion from which the statement comes supports the contention that - 22 - resolution of the issue of whether verdicts are legally inconsistent may depend on the facts of a particular case. On brief, the State brings up, that, in Hemming v. State, 469 Md. 219, 230 , 263-64 & n.18, 229 A.3d 825, 831 , 851 & n.18 (2020), a case in which this Court held that a “bifurcated hybrid trial procedure split between two factfinders” was not permitted, in explaining that such a procedure could lead to inconsistent verdicts, the Court suggested in a footnote that it no longer recognized a distinction between legally and factually inconsistent verdicts and points out that from its perspective the suggestion appeared to be “an error” as opposed to a change in law. It is correct that in a footnote in Hemming, we remarked that such a distinction had been rejected and referred to Stewart as “holding that the permissibility of an inconsistent jury verdict depends on ‘whether the jury verdict on its face indicates that the jury failed to follow the trial court’s proper instructions on the law governing the charged offenses[.]’” Hemming, 469 Md. at 264 n.18, 229 A.3d at 851 n.18 (quoting Stewart, 464 Md. at 305 , 211 A.3d at 376 (McDonald, J., writing separately)).

The footnote appears to refer to the opinion of the three judges in Stewart whose approach to determining inconsistent verdicts would focus mainly on a review of the jury instructions on the offenses. The footnote did not address the circumstance that, in Stewart, four members of the Court explicitly endorsed upholding the approach set forth in McNeal as to distinguishing between legally and factually inconsistent verdicts and the holding in McNeal that legally inconsistent verdicts are not permissible while factually inconsistent verdicts in criminal jury trials are permissible. It is clear that in Stewart, this Court did not overrule McNeal or the use of the required