Cross v. State

• Decision Date: 13 June 1977
• Docket Number: No. 1042,1042
• Citation: 36 Md.App. 502,374 A.2d 620
• Parties: Melvin Alfonzo CROSS a/k/a "Teejay" v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 502

36 Md.App. 502

374 A.2d 620

Melvin Alfonzo CROSS a/k/a "Teejay" v. STATE of Maryland.

No. 1042

Court of Special Appeals of Maryland.

June 13, 1977.

Robert B. Levin, Assigned Public Defender, Baltimore, with whom were Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Wehland, State's Atty. for Howard County and Gary S. Peklo, Asst. State's Atty. for Howard County, on the brief, for appellee.

Argued before MOYLAN, POWERS and MOORE, JJ.

MOYLAN, Judge.

The appellant, Melvin Alfonzo Cross, was convicted by a Howard County jury, presided over by Judge Joseph Mattingly, of grand larceny. Upon this appeal, he raises five contentions, the first four of which are interestingly intertwined:

(1) That a new trial should have been granted because the jury's verdicts of guilty of both larceny and receiving stolen goods were inconsistent and, therefore, fatally defective;

(2) That the evidence was not legally sufficient to support the grand larceny verdict (3) That irrelevant testimony from one Cindy Brosenne was erroneously admitted;

(4) That prejudicial evidence of another crime was erroneously admitted; and

(5) That an in-court identification was the product of an impermissibly suggestive pretrial photographic viewing.

The Inconsistent Verdicts

The jury returned verdicts against the appellant of guilty of grand larceny and guilty of receiving stolen goods, both charges arising out of the same incident. The appellant is absolutely correct in his major premise that "a defendant cannot be both a thief and a receiver when it is apparent that the property alleged to have been stolen is the same as that alleged to have been received." Bell v. State, 220 Md. 75, 81, 150 A.2d 908, 911. It is also true "that a general verdict of guilty on two inconsistent counts, such as larceny and receiving, is defective." Id., at 80, 150 A.2d at 911; Heinze v. State, 184 Md. 613, 42 A.2d 128. The question before the Court, however, is not that of whether the verdicts were inconsistent but rather that of what should be done when such inconsistencies unfortunately occur.

The appellant urges further that the best of all solutions, when such inconsistent verdicts are rendered, is to send the jury back to the jury room, with appropriate instructions, so that they can exercise their choice between the verdicts, either of which might be appropriate but both of which cannot. He quotes correctly from Heinze v. State, at 184 Md. 618, at 42 A.2d 131, that "it is the safer practice to send the jury back to their room with instructions as to the corrections that ought to be made, so that they can amend the verdict as they think proper unhindered by the presence and possible influence of others." To the same effect, we said in McDuffie v. State, 12 Md.App. 264, 267, 278 A.2d 307, 308:

"It is clear that in the case now before us, the better procedure would have been for the trial judge to have asked the jury to return to the jury room and, if they were indeed intent upon returning a verdict of guilty under the first count charging robbery with a dangerous and deadly weapon, then to return verdicts of not guilty on the other counts . . . ."

Although this would indisputably be the best of all remedies, the flaw in the appellant's argument is that nobody, significantly including the appellant, even spotted the problem, let alone suggested the preferred remedy, at the time it occurred. The rendition of the jury verdicts occurred as follows:

"(THE JURY RETURNED TO THE COURT ROOM AT 4:55 P.M. WITH A VERDICT AS FOLLOWS:)

Whereupon, by request of Defense Counsel, the Jury was polled and all twelve answered in the affirmative. The Jury was then dismissed.

MR. GOLDBERG: Your Honor, for the record, the Defense requests a PSI.

THE COURT: Very well, sir. A pre-sentence report is therefore ordered and sentence will be delayed pending the receipt of the report from the Parole Department.

MR. GOLDBERG: Thank you, Your Honor.

MR. PEKLO: Thank you, Your Honor.

THE COURT: Thank you.

COURT RECESSED AT 5:10 P.M."

The short answer to the contention would be simply to point out that the issue has not been preserved for appellate review. Maryland Rule 1085. In Bell v. State, supra, a case also involving inconsistent verdicts of guilty of both larceny and receiving, the Court of Appeals made it clear that the failure to raise the issue at the trial court could be dispositive, saying at 220 Md. 81, at 150 A.2d 911-912:

"When a verdict of guilty is rendered on inconsistent counts, the defendant has a right to require the trier of facts to specify on which of the counts he is guilty, but it is a right which may be waived. Since the question was not raised below in any manner, it may be that the defendant waived the inconsistency." (Emphasis supplied)

We spoke to the same point in Thomas v. State, 2 Md.App. 645, 648, 236 A.2d 747, 749:

"The next complaint concerns the conviction of grand larceny and receiving stolen goods on the basis that the counts were mutually exclusive. It is true that the verdict is inconsistent, however, there was no objection below and there was no prejudice."

In the exercise of our discretion, however, we would go further and address the merits. Even if the point had been preserved for appellate review, it would avail the appellant little. The trial concluded with the rendering of the verdicts on April 20, 1976. The appellant first raised the question of inconsistent verdicts at the hearing on his Motion for a New Trial on September 24, 1976. The jury had not simply been dismissed but it had, as of then, been totally dispersed for over five months. There was no way under the sun that that jury could be reconstituted. The sole thrust of the appellant's argument both upon the Motion for a New Trial and before this Court was not for such corrective action as was still available to the court, but for a complete reversal and a remand for a new trial before a new jury. The injury did not compel so radical a cure.

The State had, in the meantime, taken corrective action of its own. It nolle prossed the charge of receiving stolen goods so that the only sentence ultimately imposed was for the conviction of grand larceny. The appellant now questions the power of the State's Attorney to enter a nolle pros after a verdict has been rendered by the fact finder. Although we perceive no impediment to the entering of a nolle pros by the State at that stage of the proceedings, ¹ the entry of the nolle pros is not the subject of this appeal. The judgment appealed from was the sentence upon the conviction of grand larceny. We are concerned not with the method by which the conviction for receiving stolen goods was dissolved, but with the propriety of the conviction for grand larceny remaining undissolved.

The ultimate harm flowing from inconsistent verdicts is not the possibility that the jury may have been confused in its decisional process (for illogical and "compromise" jury verdicts are countenanced without question, if not indeed without power to question) but rather the risk that a defendant will erroneously be subjected to double and inconsistent punishments. That threat was removed in this case by the State's prompt dismantling, via the nolle pros, of one horn of the dilemma. The appellant was relieved of potential prejudice. That the agency of that relief happened to be the State's Attorney rather than the trial judge is of no moment.

The appellant would have us believe, however, that the inconsistency of the jury was in and of itself a sin beyond redemption, except at the hands of that jury. We cannot take so stern an attitude toward the technical missteps that frequently bedevil the complicated and snare-strewn trial process. The philosophy, rather, which invigorates our approach was that quoted with approval by the Court of Appeals in Heinze v. State, supra, at 184 Md. 619, 42 A.2d 128. The words were those of Chief Justice Paxson in Appeal of Nicely, 130 Pa. 261, 18 A. 737, 739:

"There was a time in the history of the English criminal law when great crimes were left unpunished because of harmless, technical errors. This greater strictness was perhaps due to the fact that at that period the Criminal Code was especially bloody. Capital punishment was inflicted for very trifling offenses; and, it may be, the judges sought to ameliorate its rigor by holding the crown to the observance of the nicest technicalities. * * * With the advancement of judicial science, and a more enlightened administration of the law, mere technicalities are less regarded, where they work no harm to a defendant."

These words were applied in Bell v. State, supra, where the Court of Appeals declined to reverse on the basis of inconsistent verdicts, absent ultimate prejudice. It said, at 220 Md. 81, at 150 A.2d 912:

"In any event, the court passed but one sentence of a year's duration and then provided that it should run concurrently with the previous sentence of three years for the receiving and unauthorized use of the automobile referred to in the first indictment. Since it does not appear that the defendant has been prejudiced (Heinze v. State, supra ) by the rendition of inconsistent verdicts under the second indictment, we see no reason to make such inconsistency the basis for a remand of the case for further proceedings or a new trial. Novak v. State, 139 Md. 538, 115 A. 853 (1921)."

Similar results were reached in Hardesty v. State, 223 Md. 559, 165 A.2d 761; Novak v. State, 139 Md. 538, 115 A. 853; Price v. State, 3 Md.App. 155, 238 A.2d 275; Tender v. State, 2 Md.App. 692, 237 A.2d 65; and Boone v. State, 2 Md.App 80, 117, 233 A.2d 476. In terms of diagnosing what probably happened and the innocuous nature of the happening, we feel in this case exactly as we did, in looking at a patient with similar symptoms, in McDuffie v. State...