Givens v. State

• Decision Date: 22 August 2016
• Docket Number: Sept. Term, 2015,No. 88,88
• Citation: 449 Md. 433,144 A.3d 717
• Parties: Dominic Givens v. State of Maryland
• Court: Court of Special Appeals of Maryland

449 Md. 433

144 A.3d 717

Dominic Givens

v.State of Maryland

No. 88

Sept. Term, 2015

Court of Appeals of Maryland.

August 22, 2016

Reconsideration Denied September 28, 2016

Argued by George Harper (of Upper Marlboro, MD) on brief, for Petitioner.

Argued by Gary E. O'Connor, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief, for Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten and Lynne A. Battaglia (Retired, Specially Assigned), JJ.

Watts

, J.

Factually and legally inconsistent verdicts have vexed litigants and been the subject of Maryland appellate opinions in both civil cases and criminal cases for decades. One such case of significant impact is Price v. State, 405 Md. 10, 29, 949 A.2d 619, 630 (2008)

, in which this Court held that guilty verdicts cannot be legally inconsistent with not-guilty verdicts in the case of a trial by jury.

In Price

, although this Court determined that legal inconsistency in verdicts is not permissible, this Court was not confronted with other questions concerning inconsistent verdicts, such as whether a guilty verdict can be factually inconsistent with a not-guilty verdict in a criminal case with a jury.¹ This Court has since answered that question in the affirmative. See McNeal v. State, 426 Md. 455, 462, 44 A.3d 982, 986 (2012) (“We shall hold that the Court's opinion in Price does not apply to jury verdicts in criminal cases that are merely inconsistent factually .... In doing so, we preserve the historic role of the jury as the sole fact-finder in criminal jury trials.”).

This case presents another issue that the Court was not called upon to address in Price

: namely, the manner in which a defendant in a criminal case preserves for review an issue as to allegedly inconsistent verdicts.² In Price, although this issue was not before the Court, in a concurring opinion, Judge Glenn T. Harrell, Jr. provided guidance on the matter. Judge Harrell, in his concurrence in Price, and, indeed, the Court of Special Appeals in multiple cases, and the vast majority of courts in other jurisdictions that have addressed the issue, have concluded that, to preserve for review an issue as to allegedly inconsistent verdicts, a defendant in a criminal trial by jury must object to the allegedly inconsistent verdicts before the verdicts become final and the trial court discharges the jury.

For the below reasons, we agree with Judge Harrell's concurrence, the Court of Special Appeals, and the authority from other jurisdictions, and hold that, to preserve the issue of legally inconsistent verdicts for appellate review, a defendant in a criminal trial by jury must object or make known any opposition to the allegedly inconsistent verdicts before the verdicts become final and the trial court discharges the jury.

BACKGROUND

Charges

In an indictment dated February 24, 2012, in the Circuit Court for Prince George's County (“the circuit court”), the State, Respondent, charged Dominic Givens (“Givens”), Petitioner, as to various victims with one count of first-degree premeditated murder, three counts of robbery with a dangerous weapon and robbery, three counts of attempted robbery with a dangerous weapon and attempted robbery, conspiracy to commit the same, and six counts of use of a firearm in the commission a crime of violence. The victims were identified as Marvin Darrell Tomlinson (“Tomlinson”), Jeramy Dobbs (“Dobbs”), Antwan Wilkins (“Antwan”), Tyrell Jones (“Jones”), Reginald Langley (“Langley”), and Jayvon Wilkins (“Jayvon”).³ According to the indictment, Givens's co-conspirators were Trevon Marquise Montgomery (“Montgomery”), Ronald Minor (“Minor”), and Dajuan Jamal Brooks (“Brooks”).⁴

State's Theory, Trial Testimony, and Stipulations

The State's theory of the case was that Givens, Montgomery, Minor, and Brooks robbed Jones, Langley, and Jayvon, and attempted to rob Tomlinson, Dobbs, and Antwan, and that Tomlinson was fatally shot during the attempted robbery. Four of the five surviving victims—Jones, Langley, Antwan, and Jayvon—testified at trial as witnesses for the State.⁵

Jones testified that, on or about November 15, 2011, he, Langley, Antwan, Jayvon, Tomlinson, and Dobbs stopped at a playground on the way to a store. A van pulled up, and at least four or five people, including Montgomery,⁶ got out of the van. Montgomery was holding a gun. The people from the van told the victims to “get down” and said: “You know what time it is.”⁷ As the victims lay on the ground, the robbers used the gun to hit Tomlinson in the head multiple times. Meanwhile, Montgomery took Jones's jacket and money, Jayvon's jacket and shoes, Antwan's jacket, and Langley's money. Before any of the robbers could take anything from Tomlinson or Dobbs, Tomlinson got up and “rushed” toward the gun, which was in Montgomery's hand. Tomlinson told the other victims to run. Jones, Langley, Antwan, and Jayvon fled and climbed over a nearby wall. As he climbed over the wall, Jones heard gunshots.

Jones testified that he did not recognize anyone in the courtroom as one of the robbers. During his testimony, Jones did not mention Givens.

Langley testified that, on November 15, 2011, he, Jones, Antwan, Jayvon, and Tomlinson stopped at a playground on the way home from a store. A van pulled up, and four or five people, including Montgomery and Minor,⁸ got out of the van. Montgomery was holding a gun. The people from the van said “You know what time it is” and “Lay everything down.” As the victims lay on the ground, the robbers patted the victims' pockets. One of the robbers took money from Langley. The robbers used the gun to hit Langley and Tomlinson. The gun fell to ground, and Tomlinson told the other victims to run. Jones, Langley, Antwan, and Jayvon fled and climbed over a nearby wall. As he climbed over the wall, Langley heard two gunshots. Langley testified that he did not recognize anyone in the courtroom as one of the robbers. During his testimony, Langley did not mention Givens.

Antwan testified that, on November 15, 2011, he, Jones, Langley, Jayvon, and Tomlinson stopped at a playground on the way to a store. Another group of people, including Montgomery, appeared; one of them was holding a gun, and one of them told the victims to get down. Montgomery took Jones's jacket and Jayvon's jacket and shoes, and checked Antwan's pockets, which were empty. Tomlinson got up and began “tussling” with the robber who was holding a gun, which fell to the ground. Antwan fled and climbed over a nearby wall. As he fled, Antwan heard gunshots. While testifying, Antwan was not asked whether he recognized anyone in the courtroom as one of the robbers.

Jayvon testified that, on November 15, 2011, he, Jones, Langley, Antwan, Tomlinson, and Dobbs stopped at a playground on the way home from a store. A minivan pulled up, and four people, including Givens, Montgomery, and Minor, got out of the minivan. Montgomery was holding a gun, and said “Y'all know what time it is” and “Y'all get on the ground.” As the victims lay on the ground, the robbers began searching the victims. Givens took Jayvon's phone and money. Other robbers took Jayvon's jacket and shoes. The robbers took two other jackets from the other victims, and hit Tomlinson in the head with the gun twice. Tomlinson “barged” toward the robber with the gun, which fell to the ground. Tomlinson told the other victims to run, and “a scuffle for the gun” ensued. Jayvon fled and climbed over a nearby wall. As he climbed over the wall, Jayvon heard gunshots.

As a witness for the State, Corey Young (“Young”), Givens's cousin, testified⁹ that, on November 15, 2011, Young's car broke down, and he texted Givens to ask for help. Givens, Montgomery, and Minor arrived in Givens's gray minivan. The four people pushed Young's car to his grandmother's house. Afterward, the four people entered the minivan, which Givens drove around. Givens later asked Young to drive to pick up “Mouse,”¹⁰ and Young complied. Young then drove the minivan to Minor's house, and the five people got out of the minivan. Minor entered his house, came back outside, and got into the minivan's driver's seat. The other four people entered the minivan, which Minor drove to a spot near a playground. Givens, Montgomery, and Mouse got out of the minivan. At some point, Minor said: “Man, they're taking too long.” Minor got out of the minivan, and a fight broke out between Minor and a man who was holding a gun. Givens grabbed the gun and shot the man twice. Givens, Montgomery, Minor, and Mouse got back into the minivan, which Young drove away. While Young was driving, Givens, Montgomery, and Mouse told Minor: “The robbery was over with. Why did you have to take it out of [Givens]'s hand?”

At trial, the prosecutor informed the circuit court that the parties had stipulated that, on November 15, 2011, members of the Prince George's County Police Department responded to 2122 County Road in District Heights, Maryland, where Tomlinson was suffering from multiple gunshot wounds

. Tomlinson was transported to Prince George's County Hospital, where he was pronounced dead.

Verdicts

On March 14, 2013, the circuit court instructed the jury; the parties made closing arguments; and, at 11:15 a.m., the jury began deliberating. At 1:40 p.m.—i.e. , within two-and-a-half hours—the jury indicated that it had reached verdicts; however, the transcript reveals that the jury received lunch before being called into the courtroom to announce the verdicts.¹¹ At 3:05 p.m., the jury entered the courtroom to render the verdict.

In response to questions from the courtroom clerk, the jury's foreperson announced that the jury found Givens guilty of first-degree felony murder of Tomlinson, and conspiracy to commit robbery with a dangerous weapon and conspiracy to commit robbery of each of the six victims. The jury's foreperson announced that the jury found Givens not guilty of first-degree premeditated murder of Tomlinson;...