McDuffie v. State

• Decision Date: 11 June 1971
• Docket Number: No. 609,609
• Citation: 12 Md.App. 264,278 A.2d 307
• Parties: Perry Leroy McDUFFIE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 264

12 Md.App. 264

278 A.2d 307

Perry Leroy McDUFFIE v.STATE of Maryland.

No. 609.

Court of Special Appeals of Maryland.

June 11, 1971.

Jerold H. Fishman, Upper Marlboro, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George' County and Robert H. Mason, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before ORTH, THOMPSON, and MOYLAN, JJ.

MOYLAN, Judge.

The appellant, Perry Leroy McDuffie, was indicted by the Grand Jury for Prince George's County under an eight-count indictment.Those counts charged, respectively: 1) robbery with a dangerous and deadly weapon, 2) attempted robbery with a dangerous and deadly weapon, 3) assault with intent to rob, 4) robbery, 5) attempted robbery, 6) assault, 7) openly carrying a dangerous weapon with the intent of injuring a person, and 8) shooting with intent to maim.The case went to trial before a jury, presided over by Judge William H. McCullough.At the end of the State's case, a defense motion for a judgment of acquittal was granted as to the eighth count.At the conclusion of the entire case, the remaining seven counts were submitted to the jury.The jury returned a verdict of guilty as to each count.Appellant's counsel, in a bench conference, asked for a mistrial on the ground that the convictions of attempted robbery with a deadly weapon under the second count and of attempted robbery under the fith count were inconsistent with the rest of the verdict.The judge discharged the jury and directed the clerk to enter findings of not guilty on all counts but the first count.The court expressed the feeling that counts two through seven were lesser-included counts that merged into the conviction under the first count.

In Boone v. State, 2 Md.App. 80, 114-115, 233 A.2d 476, this Court took the position that a necessary element in the crime of attempt is the failure to consummate the greater crime which was being aimed at.See alsoTender v. State, 2 Md.App. 692, 698-699, 237 A.2d 65;Price v. State, 3 Md.App 155, 159-160, 238 A.2d 275.Under the holding of those cases, a conviction for attempt would be inconsistent with a conviction for the consummated crime.The jury verdict with respect to the second and fifth counts was, therefore, inconsistent with the rest of its verdict.

It is unquestionably true, as was stated by the Court of Appeals in Heinze v. State, 184 Md. 613, 42 A.2d 128, 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.'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-because of merger with respect to counts 3, 4, 6, and 7 and because of inconsistency with respect to counts 2 and 5.A common-sense review of what transpired, however, permits of no other conclusion than that the jury found the appellant guilty under the most major count-robbery with a dangerous and deadly weapon-and then, subsidiarily but erroneously, concluded that all of the other counts were lesser-included constitutent parts of the major count and that a finding of guilt thereon was logically compelled.In determining the effect of this mistake, we are guided by the philosophy expressed in Heinze v. State, supra, at 619, 42 A.2d at 131:

'However, if the defendant is not prejudiced, the verdict may be amended in substance in open court under the direction of the judge, provided that the jury assent to the verdict as amended.State v. Burrell, 120 N.J.L. 277, 199 A. 18;Burton v. Commonwealth, 109 Va. 800, 63 S.E. 464;Pehlman v. State, 115 Ind. 13117 N.E. 270;Clark, Criminal Procedure, 2d Ed., 565.If no harm has been suffered by the defendant, the Court of Appeals will go far in sustaining the action of the trial court in correcting a defective verdict in the presence of the jury.Williams v. Commonwealth, 153 Va. 987, 151 S.E. 151.Chief Justice Paxson said in a Pennsylvania case: '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.'Appeal of Nicely, 130 Pa. 261, 18 A. 737, 739.'

To forestall any danger of multiple convictions and multiple sentencing on either the lesser-included or the inconsistent counts, the trial judge promptly directed the clerk to enter verdicts of not guilty on counts 2 through 7.The appellant was sentenced only upon the first count, of which the jury obviously found him to be guilty.We feel that he, thereby, suffered no prejudice.

In Bell v. State, 220 Md. 75, 150 A.2d 908, inconsistent convictions for larceny and receiving stolen goods were handed down by the trial judge, sitting without a jury.The Court of Appeals found that the verdict was defective.It, however, affirmed the decision of the lower court on two grounds.It held first that 'since the question was not raised below in any manner, it may be that the defendant waived the inconsistency.'That holding of possible waiver would afford little comfort to the State in the case at bar, since there clearly was no waiver.In Bell, however, the Court went on to state, at 81, 150 A.2d at 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).'

The court there explicitly noted that if the trial court'had passed sentence on both of the inconsistent courts, a different question would be raised.'

In the case at bar, not only was the appellant convicted and sentenced upon the single count of robbery with a dangerous and deadly weapon, but he could have received the same sentence for attempt, as well, had the conviction been upon either of the attempt counts.

In Hardesty v. State, 223 Md. 559, 165 A.2d 761, the trial court, again without a jury, handed down an inconsistent verdict, finding...