Galloway v. State

• Decision Date: 11 October 2002
• Docket Number: No. 120,120
• Citation: 809 A.2d 653,371 Md. 379
• Parties: Anthony GALLOWAY v. STATE of Maryland.
• Court: Maryland Court of Appeals

809 A.2d 653

371 Md. 379

Anthony GALLOWAY v. STATE of Maryland.

No. 120, Sept. Term, 2001.

Court of Appeals of Maryland.

October 11, 2002.

Anne K. Olesen, Washington, DC, for appellant.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ CATHELL, Judge.

On June 19, 2000, Anthony Galloway ("appellant") was charged by the State in a single indictment, relating to the nonfatal shooting of Robert Knox, with nine counts of criminal conduct, including attempted murder, assault, reckless endangerment, use of a handgun in the commission of a felony or crime of violence, carrying a handgun (counts 1 through 7) and possession of a firearm after having been convicted previously of a crime (counts 8 and 9).¹ On March 20, 2001, in a pretrial hearing in the Circuit Court for Baltimore City, appellant's counsel expressed concern over the prejudicial impact of appellant's prior criminal record, an element of counts 8 and 9, on the remaining seven charges. As a result, without objection from the parties, the trial court created a special procedure² where, in the same criminal trial a jury would determine the guilt of appellant in respect to counts 1 thru 7, and the trial judge would determine the guilt of the appellant in respect to counts 8 and 9. Trial proceedings began later that same day. During the two-day trial the judge and the jury heard evidence on counts 1 through 7 simultaneously, with evidence of appellant's prior convictions relating to counts 8 and 9 heard only by the judge.³ At the request of appellant, and over the objection of the State, the court deferred its verdict on counts 8 and 9 until after the jury returned its verdict on counts 1 through 7.⁴ On March 21, 2001, the jury found appellant "not guilty" on counts one through seven. The following day, the court returned its verdict of "guilty" as to counts 8 and 9.

At sentencing, the court merged count 9 into count 8, and sentenced appellant to five years incarceration, of which one year was suspended and two years were converted to supervised probation. Appellant filed a motion for new trial, which was denied by the trial court in a memorandum dated July 27, 2001. Appellant then filed a notice of appeal to the Court of Special Appeals. This Court issued a writ of certiorari, bypassing the Court of Special Appeals, to answer the following questions:

"1. Whether under both the Double Jeopardy Clause of the Fifth Amendment and the Maryland common law, the jury's acquittal barred the trial court's contrary verdict on the issue of possession.⁵

2. Whether the trial court erred by rendering an inconsistent verdict and improperly shifting the burden of proof."

The procedure utilized by the circuit court, i.e., the bifurcation of the decision making function between a jury and a judge in respect to different counts of a single indictment in a single trial is not expressly authorized in Maryland, or anywhere else as far as our research has revealed. In our discussion we will briefly examine the previously accepted method for severing counts of indictments into separate cases. We shall ultimately hold that in criminal cases where the circumstances and fact issues alleged are identical, a guilty verdict, or its equivalent, by the court, that is inconsistent with a jury verdict of acquittal, is, generally, impermissible.

The facts of this case are uncontroverted, the parties having agreed to proceed on the statement of facts presented in appellant's brief pursuant to Maryland Rule 8-501(g).⁶ The facts as presented in appellant's brief are:

"In the early morning hours of September 1, 1997, nineteen-year-old Robert Knox was shot in the foot. He claimed that he was sitting on the steps of an abandoned house with five or six friends from the neighborhood, when thirty-five year old [appellant] came out of his mother's house, several doors down, and shot him. At trial, Mr. Knox was the only witness who identified [appellant] as the shooter. The prosecution theorized that [appellant] shot Mr. Knox in retaliation for an incident several hours earlier in which Mr. Knox `borrowed' [appellant's] bicycle without asking. The defense challenged the credibility of Mr. Knox, who had a criminal record for drug distribution and theft, and emphasized the State's failure to investigate or call any of Mr. Knox's friends who were present during the bicycle incident and the shooting. The defense argued that Mr. Knox, who was angry with [appellant] for calling the police on him, was motivated to testify falsely. The jury acquitted [appellant] of all seven counts before it, including the charge for carrying a handgun. The next day, [the trial court judge] found [appellant] guilty of the two firearm possession counts before her.

"Officer Aaron Robinson testified that around midnight on the day of the incident, [appellant] flagged him down, reporting that someone had borrowed his bicycle and not returned it. The two caught up with Mr. Knox and several of his friends. Officer Robinson demanded that Mr. Knox return the bike to [appellant], and threatened to lock up Mr. Knox for theft. When Mr. Knox returned the bicycle, Officer Robinson considered the incident resolved with a `simple intervention' and left the scene.

"Mr. Knox, however, who was `pretty mad' at [appellant] for calling the police, confronted [appellant] declaring: `That's messed up you called the police on me.' As [appellant] started biking back towards his mother's house at 1010 North Carrie Street, Mr. Knox and his friends walked in the same direction. According to Mr. Knox, one of his friends, `Monk,' said something to [appellant]. Mr. Knox and [appellant] then had `little words,' and exchanged `profanity toward each other.'

"An hour or two later, Mr. Knox and his friends, who had all been drinking `E&J' brandy, sat in front of an abandoned home at 1000 North Carrie Street, a few houses down from [appellant's mother's] house. Mr. Knox acknowledged that he lived several blocks away, and claimed he `just happened to park' himself at that spot. According to Mr. Knox, he had been there for about twenty minutes when [appellant] came out of his mother's house. One of Mr. Knox's friends, `Tay,' went over to speak with [appellant]. After [appellant] went back inside, `Tay' returned to where Mr. Knox was sitting and told him `everything is going to be all right.' Mr. Knox claimed that about a minute later, [appellant] came out of the house with a handgun, and shouted at him. As he tried to run away, [appellant] started shooting. Mr. Knox testified that his friends were there and `they saw everything.' At the same time, he claimed that none of his friends saw who fired the gun because they `had [their] backs turned when [they] heard the shots rang off' and `everybody ran.' He also insisted he did not know his friends' names except the nicknames of `Tay' and `Monk.'

"After being shot in the foot, Mr. Knox ran seven blocks to his girlfriend's house. When the ambulance and police came, they took Mr. Knox back to North Carrie Street before taking him to the hospital, and Mr. Knox pointed to the house at 1010 North Carrie Street, indicating where the shots were fired. Detective Brenda May responded to a call about an incident four blocks over from North Carrie Street. However, when she got to the location of the reported incident, the dispatcher instructed her to report to 1010 North Carrie Street instead. Detective May investigated the area and found a 0.25 caliber casing in front of 1014 North Carrie Street in the middle of the street about a foot from the curb. She ascertained [appellant's] name as a possible suspect, obtained his photograph, and arranged a photo array. She then went to the hospital, where Mr. Knox pointed to [appellant's] photograph and identified [appellant] as the person who shot him.

"Detective May, who had been a police officer for nineteen years with seven years on the violent crimes task force, did not investigate any other witnesses or possible suspects, although Mr. Knox told her he was with some friends at the time of the incident. Detective May acknowledged she did not even ask Mr. Knox for the names of his friends because `from her experience a lot of people are reluctant to give up names of the people that are with them because they don't want the police harassing or bothering or going to their houses.' There was no evidence that investigators performed any tests on the casing to determine when it had been fired or how long it had been on the street, and no gun was found. Detective May obtained a warrant for [appellant's] arrest, but did not serve it because [appellant] was not at 1010 North Carrie Street when the police arrived.

"The jury acquitted [appellant] on counts one through seven on March 21, 2001. The following day, the Court returned a guilty verdict as to counts 8 and 9." [Some alterations added.]

Appellant contends that the issues presented in this appeal arose from the "unique procedural context" in which appellant was tried, which consisted of a "unified proceeding with a hybrid decision, part jury trial and part court trial."⁷ Relying on principles of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution and Maryland common law, appellant asserts that the finality of his acquittal by the jury on the charge of carrying a handgun (count 7) precluded any consideration by the trial judge of the "same offense" of possessing a firearm (counts 8 and 9). In the alternative, appellant, relying on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), argues that collateral estoppel bars the State from "re-litigating a fact that previously ha[d] been resolved in [his] favor."⁸ Appellant also contends that the trial court's verdict on counts 8 and 9 violated Maryland's common law...