Ford v. State

• Decision Date: 17 April 1975
• Docket Number: No. 94,94
• Citation: 274 Md. 546,337 A.2d 81
• Parties: Leon Stephen FORD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 546

274 Md. 546

337 A.2d 81

Leon Stephen FORD v. STATE of Maryland.

No. 94.

Court of Appeals of Maryland.

April 17, 1975.

Gerald A. Kroop, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Milton B. Allen, State's Atty., and Charles Kountz, Asst. State's Atty., for Baltimore City on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

Following affirmance by the Court of Special Appeals of the petitioner's conviction in the Criminal Court of Baltimore for using 'a handgun in the commission of a crime,' this Court granted certiorari to examine the contention of the petitioner, Leon Stephen Ford, that his conviction by the jury should be set aside because 'it is (so) inconsistent, repugnant or absurd . . . as to be void and meaningless.' Since in our view this issue must be resolved in a manner adverse to Ford's position, we will uphold the jury's verdict and affirm the judgment.

At the trial of this criminal cause the State primarily presented its case from the lips of the complaining witness, Robert Shaw. Shaw, a part-time taxi driver in Baltimore City for the Diamond Cab Company, testified that at about 2:00 a.m. in the early morning of December 23, 1972, Ford and the co-defendant, Bobby Wilson, ¹ hailed his cab, seated themselves in the rear, and asked to be driven to the 2000 block of Edmondson Avenue. Shortly before they arrived at that destination, Ford reached over the back of the front seat and, while poking a pistol in Shaw's ribs, demanded his money. The driver immediately brought the taxi to a standstill but allowed the motor to continue to run while both 'guests' jumped from the cab. Wilson them instantly pulled open the right front door, flashed a pistol and also demanded that Shaw hand over his money. The cab driver further testified that, although he promptly complied with his assailants' commands by emptying the entire contents ($36.40) of his change bag into Wilson's hand, he so feared being shot by the two bandits that he stepped on the accelerator and thus managed to speed away without being further victimized. Immediately following his escape, Shaw, using his cab radio, contacted the police, who in turn responded with such quickness that they were able to apprehend both Ford and Wilson and seize their handgun as they were entering another cab.

In defending himself Ford does not deny being a passenger in Shaw's vehicle, but claims that he was not involved in the robbery. His version of the happening is that while riding as a passenger in the taxi toward his destination, his companion, Wilson, began to play with a handgun, which impelled Ford to ask the cab driver to stop and let him out. However, Ford continues, after he emerged from the taxi but before he could dutifully pay for his trip, Shaw drove off.

These divergent versions of what occurred during those pre-dawn hours, as well as other evidence, were presented at the jury trial, with Judge Robert Watts presiding, in May of 1973. Under consideration at that trial was the disposition of an eight count indictment, which charged both Ford and Wilson with:

Count No. Charge

1. Robbery with a dangerous and deadly weapon.

2. Attempted robbery with a dangerous and deadly weapon.

3. Robbery.

4. Assault with intent to rob.

5. Assault.

6. Larceny.

7. Receiving stolen goods.

8. Use of a handgun in the commission of a crime of violence.

After all the evidence was presented, Judge Watts granted the defendants' motions for judgment of acquittal on counts 2, 4, 6, and 7, and, after denying these motions as they related to the other four counts, submitted the remaining charges to the jury for its consideration. Following deliberation, the jury, through its forelady, announced that it found the defendants to be guilty of the charge made in count 8 but not guilty of the charges contained in counts 1, 3 and 5. Count 8 accuses the defendants with unlawfully using 'a handgun in the commission of a crime of violence,' in violation of Maryland Code (1957, 1971 Repl.Vol., 1974 Cum.Supp.) Art. 27, § 36B(d) which provides:

'(d) Unlawful use of handgun in commission of crime.-

Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, ² shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.'

The petitioner, Ford, proposes two arguments to support his contention that it is 'inconsistent, repugnant, or absurd' and therefore illegal for the jury to have convicted him of using 'a handgun in the commission of (a felony or) a crime of violence,' while at the same time finding that he did not commit either a felony or a crime of violence. The first assertion is that a conviction under Art. 27, § 36B(d) is itself only viable when appended to a guilty verdict for one of the other designated criminal acts. Specifically, the petitioner focuses on the language of the statute which says that an individual who is guilty of the section 36B(d) offense shall be sentenced for its violation 'in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor ((crime of violence)),' and then from this Ford claims that, under the statute, no sentence can be imposed, and therefore no separate section 36B(d) guilty verdict can stand, unless it is in conjunction with a felony or crime of violence conviction. The follow-up argument is that the acquittal of the charges contained in the first seven counts completely undermines and negates the existence of one of the elements (i. e., commission of a felony or a crime of violence) necessary to find him guilty under the eighth count, as there would thus remain 'evidence not sufficient to support the conviction of 'unlawful use of a handgun in the commission of a felony (or crime of violence).''

We agree with the petitioner that section 36B(d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either. ³ Nevertheless, in answering the petitioner's first contention, we think it to be plain from the language of section 36B(d) that the offense delineated in that statute is separate and distinct from the felony or crime of violence during the commission of which the handgun was used. Since this is so, an individual on trial for the handgun charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in section 36B(d). And, when the trier of fact considers an indictment containing both a section 36B(d) handgun count and a felony or crime of violence count, a conviction on the former can still be sustained even if the trier of fact returns a finding of not guilty on the latter-in fact a finding of guilt under both, since they are not inconsistent, can each stand. A logical corollary then of each of these statements is that when section 36B(d) dictates that any person who is guilty of the handgun offense shall be sentenced 'in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor,' it directs that irrespective of the number of years, if any, the defendant receives for the 'said felony or misdemeanor,' the court must impose a penalty, within the limitations for confinement contained in the statute, for the independent handgun offense.

In answering Ford's second contention it is only necessary for us to emphasize that this 'hobgoblin' of what appears to be jury verdict inconsistency, ⁴ which haunts the petitioner in this case, has long been exorcised not only by this Court but also by many other courts across this nation. See Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259 (1968). In this Court the question of verdict inconsistency has been considered in several cases, and has been consistently rejected as forming the basis for voiding a conviction. For instance, in Leet v. State, 203 Md. 285, 293, 100 A.2d 789, 793 (1953), Chief Judge Sobeloff, in speaking for this Court, repudiated the assertion that jury verdicts must be consistent, by saying:

'While it is true that a finding of guilt on two inconsistent counts will be declared invalid in Maryland, Heinze v. State, 184 Md. 613, 617, 42 A.2d 128, 130, it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count.'

And again, just one year later, Chief Judge Sobeloff reiterated this same proposition when, in speaking for this Court in Williams v. State, 204 Md. 55, 64, 102 A.2d 714, 718 (1954), he opined:

'Each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts.'

See also the opinions of Chief Judge Hammond in Ledbetter v. State, 224 Md. 271, 273-74, 167 A.2d 596 (1961) and Judge Oppenheimer in Johnson, etc. v. State, 238 Md. 528, 540-46, 209 A.2d 765 (1965), where they, for the Court, relying principally on the Leet and Williams cases, concluded that a conviction on one count need not be vacated because of an inconsistent not guilty verdict on another count. This same tenet was adopted by the United States...