State v. McClary

• Decision Date: 05 May 2004
• Docket Number: No. 20030237,20030237
• Citation: 679 NW 2d 455,2004 ND 98
• Parties: State of North Dakota, Plaintiff and Appellee v. Michael J. McClary, Defendant and Appellant.
• Court: North Dakota Supreme Court

2004 ND 98

679 NW 2d 455

State of North Dakota, Plaintiff and Appellee v. Michael J. McClary, Defendant and Appellant.

No. 20030237

Supreme Court of North Dakota.

Filed May 5, 2004.

Leann Katherine Bertsch, Assistant State's Attorney, Courthouse, 514 East Thayer Avenue, Bismarck, N.D. 58501, for plaintiff and appellee.

Paul Henry Myerchin, P.O. Box 995, Bismarck, N.D. 58502-0995, for defendant and appellant.

Opinion of the Court by Kapsner, Justice.

Neumann, Justice.

[¶1] Michael J. McClary appeals from a judgment entered upon a jury verdict finding him guilty of abuse or neglect of a child. We conclude the jury verdict is not inconsistent and is supported by substantial evidence, the trial court did not err in refusing to dismiss the abuse or neglect charge and in instructing the jury on it, and the court did not err in refusing to question the jury about its verdict. We affirm.

I

[¶2] McClary lived in Bismarck with Amy Wery and her fifteen-month-old daughter, Lacey Howe. At about 1:45 p.m. on October 15, 2002, Howe was pronounced dead at a Bismarck Hospital. Howe's death was caused by a violent, forceful shaking associated with a blunt force impact to the head, which was described as "shaken baby syndrome." There was evidence both McClary and Wery were involved heavily with drugs and each was alone with Howe on the morning of October 15 for a period of time before her death. McClary and Wery each claimed the other was responsible for Howe's death.

[¶3] The State alternatively charged McClary with murder under N.D.C.C. § 12.1-16-01(1)(b) and (c) for allegedly (1) causing Howe's death under circumstances manifesting extreme indifference to the value of human life, "and/or" (2) committing or attempting to commit a felony offense against a child under N.D.C.C. § 14-09-22, and, in the course of and in furtherance of that crime, causing Howe's death. The State also charged McClary with abuse or neglect of a child under N.D.C.C. § 14-09-22 for willfully inflicting bodily injury, substantial bodily injury, or serious bodily injury upon a child under the age of six years. The jury returned a verdict finding McClary not guilty of murder and guilty of abuse or neglect of a child. The court denied McClary's request to ask the jurors "whether the abuse they found was the shaking of the child or whether it was something that wasn't alleged in the indictment." The court subsequently denied McClary's motion for judgment of acquittal on the abuse or neglect charge and for a new trial.

II

[¶4] McClary argues the jury's verdict is legally inconsistent because the jury reached conflicting findings on a necessary element of each count when it found him not guilty of felony murder but guilty of the underlying felony, abuse or neglect of a child. He argues this case is distinguishable from Dunn v. United States, 284 U.S. 390 (1932) and North Dakota cases dealing with legal inconsistency, and is analogous to DeSacia v. State, 469 P.2d 369 (Alaska 1970).

[¶5] In Dunn, 284 U.S. at 393-94, the United States Supreme Court held inconsistent verdicts on separate counts of a three count indictment against a single defendant did not entitle the defendant to relief. In that case, the defendant was charged under prohibition laws with (1) maintaining a common nuisance by keeping intoxicating liquor for sale at a specified place, (2) unlawful possession of intoxicating liquor, and (3) unlawful sale of intoxicating liquor. Id. at 391-92. A jury found the defendant guilty of maintaining a nuisance, but acquitted him of the other two counts. Id. The defendant argued the verdicts were inconsistent because the acquittals and the guilty verdict were based on the same evidence. Id. at 392. The Supreme Court rejected the defendant's argument under a two-pronged rationale. Id. at 393-94. First, the Court said consistency in verdicts was not necessary, because each count in a single indictment was regarded as a separate indictment, and if separate indictments had been presented against the defendant for possession and for maintenance of a nuisance and the cases had been tried separately with the same evidence, an acquittal on one count could not be pleaded as res judicata in the other. Id. at 393. Second, the Court explained the most that could be said for those inconsistent verdicts was that, either in the acquittal or in the conviction, the jury did not speak its real conclusions, but the inconsistent verdicts did not necessarily mean the jury was not convinced of the defendant's guilt. Id. The Court interpreted the acquittal as the jury's unauthorized assumption of a power of leniency, and recognized the verdict may have been the result of a compromise or a mistake, but refused to grant the defendant relief because it would require speculation or inquiry into the jury's deliberations. Id. at 393-94.

[¶6] In United States v. Powell, 469 U.S. 57, 59-60 (1984), the defendant argued convictions for using the telephone to facilitate the commission of certain narcotics crimes were inconsistent with acquittals for the underlying narcotics crimes. The Supreme Court effectively defined inconsistent verdicts as "a situation where . . . the jury has not followed the court's instructions" and "the verdicts cannot rationally be reconciled," and concluded the verdicts were inconsistent. Id. at 65, 69. See also Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 778 (1998) (defining inconsistent verdicts as "verdicts [that] defy reason: a jury following the court's instructions could not have produced them"). The Court said nothing in the Constitution required a defendant to receive a new trial for an inconsistent verdict, but addressed the issue under its supervisory power over the federal criminal process. Powell, 469 U.S. at 65. The Court recognized the rationale from Dunn about res judicata could no longer be accepted under Sealfon v. United States, 332 U.S. 575 (1948) and Ashe v. Swenson, 397 U.S. 436 (1970), which applied the doctrine of collateral estoppel under the circumstances of those cases. Powell, at 64. However, the Court concluded Dunn rested on a sound rationale that was independent of res judicata, because where truly inconsistent verdicts have been reached, "'[ t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'" Powell, at 64-65 (quoting Dunn, 284 U.S. at 393). The Court explained inconsistent verdicts that acquit on a predicate offense while convicting on the compound offense are not necessarily windfalls to the prosecution at the defendant's expense, because it is equally possible the jury properly reached its conclusion on the compound offense, but through mistake, compromise, or lenity arrived at an inconsistent conclusion on the predicate offense. Id. at 65. The Court said "[i]nconsistent verdicts . . . present a situation where 'error,' in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored." Id. The Court said any attempt at an individualized assessment of the reason for the inconsistency would be based either on pure speculation or would require inquiry into the jury's deliberation, which courts generally will not undertake. Id. at 66-67. The Court concluded inconsistent verdicts were reviewable to the extent a defendant could challenge the sufficiency of the evidence supporting the guilty verdict, and where the evidence was sufficient to sustain the conviction on the compound offense, it was speculation to suggest the conviction was a mistake and the acquittal on the predicate offense was the verdict the jury really meant. Id. at 67-68. The Powell rationale is premised upon an inconsistent acquittal and conviction and uncertainty about whose ox has been gored, but the Court indicated "[n]othing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other." Id. at 69 n.8.

[¶7] Federal courts and the vast majority of state courts follow Powell, and hold that an inconsistent acquittal and guilty verdict against a single defendant in the same prosecution does not entitle the defendant to relief. Muller, 111 Harv. L. Rev. at 787-89 (collecting cases). See 5 LaFave, Israel, and King, Criminal Procedure § 24.10(b) (2d ed. 1999); Steven T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 N.Y. L. Sch. L. Rev. 713, 732-33 (1979); Annot., Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R. 3d 259, §§ 2-3 (1968); Annot., Inconsistency of Criminal Verdict With Verdict or Another Indictment or Information Tried at Same Time, 16 A.L.R.3d 866, § 2 (1967). A small minority of states have declined to follow Powell and require consistent verdicts on multiple counts against a single defendant as a matter of state law. Muller, at 787 (collecting cases). See DeSacia, 469 P.2d at 375-78 (declining to follow Dunn under Alaska law).

[¶8] Some courts have distinguished between "logically" and "legally" inconsistent verdicts. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). In Moore, at 108 (citing People v. Hoffer, 478 N.E.2d 335, 340 (Ill. 1985)), the Minnesota Supreme Court considered a defendant's argument that convictions for first and second degree murder were "legally" inconsistent because a necessary element of each offense was subject to conflicting findings. The court said logically inconsistent verdicts do not entitle a defendant to a new trial. Moore, at 108 (citing State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) and State v. Juelfs, 270 N.W.2d 873, 874 (Minn. 1978) for general rule that defendant found...