Hawkins v. State

• Decision Date: 01 September 1990
• Docket Number: No. 703,703
• Citation: 589 A.2d 524,87 Md.App. 195
• Parties: Dana Ashley HAWKINS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 195

87 Md.App. 195

589 A.2d 524

Dana Ashley HAWKINS v. STATE of Maryland.

No. 703 Sept. Term, 1990.

Court of Special Appeals of Maryland.

May 7, 1991.

Michael R. Braudes, Asst. Public Defender and Alan H. Murrell, Former Public Defender, Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Joseph I. Cassily, State's Atty., for Harford County, Bel Air, on the brief), for appellee.

Submitted before WILNER, C.J., and ROBERT M. BELL and FISCHER, JJ.

ROBERT M. BELL, Judge.

Dana Ashley Hawkins, appellant, was convicted by a jury in the Circuit Court for Harford County of first degree felony murder and of being an accessory after the fact to that murder. She was sentenced to the custody of the Division of Correction for concurrent life terms, a portion of each of which was suspended: all but fifteen years as to the murder conviction, and, all but ten years with respect to the accessoryship conviction. On appeal, appellant presents six issues:

1. Did the trial court err in denying Appellant's motion for mistrial when two experienced police officers testified in a manner that permitted the jury to infer that Appellant had failed a polygraph test?

2. Did the trial court err in failing to make factual findings supportive of its denial of Appellant's motion to suppress evidence?

3. Is Appellant entitled to merger of her conviction of accessory after the fact into that for the substantive crime?

4. Is Appellant entitled to relief as a result of defense counsel's conflict of interest?

5. Did the trial court err in admitting hearsay evidence?

6. Does the inconsistency in the verdicts require reversal of Appellant's murder conviction?

In the third issue she raises, appellant argues that her convictions of murder and accessory after the fact to murder may not both stand, that "[she] could only be convicted of one of the two crimes as a matter of the law of double jeopardy or merger." We agree, albeit for a different reason, that both convictions cannot stand. As we see it, the jury's verdicts were defective inasmuch as the convictions are inconsistent. ¹ Accordingly, we will reverse the judgments entered on the jury's verdicts and remand the case to the circuit court for a new trial. Consequently, we do not reach the remaining issues raised by appellant.

Because we are here concerned with the viability of jury verdicts, it is not necessary that we rehearse, in minute detail, the facts giving rise to the appeal. It is sufficient to note that appellant was one of four persons who spent the night in a motel room engaging in illegal drug use and sexual activities. On the next day, one of the four, the victim, Dell Noble, was strangled to death. Appellant was charged with, tried for, and convicted of her murder. She was, as we have seen, also charged with, tried for, and convicted of being an accessory after the fact to that murder.

Perhaps because of the relief appellant seeks, relief to which the State essentially concedes ² she is entitled, neither appellant nor the State focuses on the preservation of the issue for appellate review. Moreover, perhaps for the same reason, neither challenges the sufficiency of the evidence to support both verdicts. ³ As to the latter, we will forgo any review of the record for sufficiency of the evidence to sustain either of the two convicted counts ⁴ and assume, as the parties apparently concede, that it is sufficient. We take a different approach with respect to the former issue, however. That the parties do not raise the issue does not mean that we are required to acquiesce in their omission. That is especially true when, as here, the relief sought may not be granted consistent with applicable principles of law.

The record reflects that appellant did not request the court to instruct that it could find her guilty of one, but not both, of the convicted counts, see Maryland Rule 4-325(c) ⁵, except to the court's instructions, Rule 4-3 25(e) ⁶, or, in any way, present to the court for action, a request that the court address or correct the inconsistent convictions. See Maryland Rule 8-131(a) ⁷.

Although the specific issue presented on this appeal--that convictions on counts of first degree felony murder and accessory after the fact to murder are irreconcilably inconsistent--has not, to our knowledge, been directly addressed by the courts of this State, it is well settled that guilty verdicts on inconsistent counts of an indictment are defective and fatally so. Novak v. State, 139 Md. 538, 542, 115 A. 853 (1921) (robbery and receiving stolen goods); Heinze v. State, 184 Md. 613, 617, 42 A.2d 128 (1945) (larceny and receiving stolen goods); Bell v. State, 220 Md. 75, 80-81, 150 A.2d 908 (1959) (same); Young v. State, 220 Md. 95, 100-01, 151 A.2d 140 (1959), cert. denied, 363 U.S. 853, 80 S.Ct. 1634, 4 L.Ed.2d 1735 (1960) (breaking and stealing and larceny); Hardesty v. State, 223 Md. 559, 562, 165 A.2d 761 (1960) (receiving and larceny); Fabian v. State, 235 Md. 306, 313-14, 201 A.2d 511, cert. denied, 379 U.S. 869, 85 S.Ct. 135, 13 L.Ed.2d 72 (1964) (larceny and breaking and entering); Boone v. State, 2 Md.App. 80, 116-17, 233 A.2d 476 (1967) (robbery with a deadly weapon and attempted robbery with a deadly weapon); Thomas v. State, 2 Md.App. 645, 648-49, 236 A.2d 747, cert. denied, 249 Md. 733 (1968) (larceny and receiving); Cross v. State, 36 Md.App. 502, 504, 374 A.2d 620 (1977), rev'd on other grounds, 282 Md. 468, 386 A.2d 757 (1978) (same); Jenkins v. State, 59 Md.App. 612, 620-21, 477 A.2d 791 (1984), modified on other grounds, 307 Md. 501, 515 A.2d 465 (1986) (assault with intent to murder and assault with intent to maim). No argument is made that the convictions are not inconsistent, the parties have, quite properly, all but conceded that they are. ⁸ The only question presented, as is true in most of the cases in which inconsistent convictions have been addressed, involves the remedy for the inconsistency. In this case, as we have seen, even this is not disputed, only the rationale: appellant did not raise the inconsistency of the convictions either by way of a request for a jury instruction or by way of an exception to the instructions given. Moreover, the jury was not informed that it should not return a verdict for both first degree felony murder and accessory after the fact. ⁹ Not only did the trial judge fail to instruct the jury that it could find the accused guilty of only one, not both, ¹⁰ of the counts, it also failed to exercise its responsibility not to accept the defective inconsistent verdict, i.e., the inconsistent convictions. That responsibility was commented upon in Heinze, 184 Md. at 617, 42 A.2d 128:

It is a generally accepted rule that if the jury should return a verdict which is defective in form or substance, it should not be accepted by the trial judge. It is essential for the prompt and efficient administration of justice to prevent defective verdicts from being entered upon the records of the court as well as to ascertain the real intention of the jury in their finding. Where a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury's attention to the defect and to direct them to put the verdict in proper form either in the presence of the court or by returning to their consultation room for the purpose of further deliberation. (Citations omitted)

See also Jenkins, 59 Md.App. at 621, 477 A.2d 791. The question thus is what should be done now?

In the cases that have addressed the issue, the appellate courts have generally refused to grant relief when the question of the inconsistent convictions was not raised below. In those cases, the decisive factor appears to be the absence of prejudice. See e.g. Bell v. State, 220 Md. at 81, 150 A.2d 908; Hardesty, 223 Md. at 562, 165 A.2d 761; Cross, 36 Md.App. at 505-509, 374 A.2d 620; Heinze, 184 Md. at 619-21, 42 A.2d 128. They have also recognized that the inconsistency may be waived. On the other hand, where prejudice is shown, the accused may be entitled to relief. Jenkins, 59 Md.App. at 621-22, 477 A.2d 791. See also Bell, 220 Md. at 81, n. 2, 150 A.2d 908, in which the Court stated:

If the court had passed sentence on both of the inconsistent counts a different question would be raised.

There is a consistent comment in Cross:

[t]he ultimate harm flowing from inconsistent [convictions] 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.

36 Md.App. at 507, 374 A.2d 620. In other words, the rationale underlying these cases is that where the issue is raised for the first time on appeal and where the verdict does not result in prejudice to the defendant, inconsistent convictions will not be disturbed. No prejudice is shown if, although, at trial, verdicts of guilt are entered on inconsistent counts, only one sentence is imposed. Bell, 220 Md. at 81, 150 A.2d 908.

In the case sub judice, appellant was found guilty, specially, of both first degree felony murder and accessory after the fact to murder. Moreover, appellant was sentenced for both convictions. Therefore, appellant was prejudiced. See Jenkins, 59 Md.App. at 622, 477 A.2d 791. Accordingly, we exercise our discretion under Maryland Rules 4-325(e) and 8-131(a) to take cognizance of the error.

Appellant urges that we merge the accessoryship conviction into that for first degree felony murder. The State, in effect, joins in that request, asserting that "[u]nder the circumstances, the greater sentence for the crime of murder should be affirmed, while the lesser sentence is vacated." For this proposition, it relies on State v. Jenkins, 307 Md....