Tate v. State

• Decision Date: 02 October 2008
• Docket Number: No. 0284, Sept. Term, 2006.,0284, Sept. Term, 2006.
• Parties: Darren Joseph TATE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

957 A.2d 640

182 Md. App. 114

Darren Joseph TATE v. STATE of Maryland.

No. 0284, Sept. Term, 2006.

Court of Special Appeals of Maryland.

October 2, 2008.

Celia A. Davis (Nancy S. Forster, Public Defender, on brief), for Appellant.

Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: KRAUSER, C.J., LAWRENCE F. RODOWSKY, (retired, specially assigned) and CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.

ON REMAND

MOYLAN, J.

On September 27, 2007, we filed an opinion affirming the conviction of the appellant, Darren Joseph Tate, for the sexual abuse of his 16-year-old stepdaughter. 176 Md.App. 365, 933 A.2d 447. On June 9, 2008, the Court of Appeals filed a per curiam order vacating our decision and remanding the case to us "for further consideration in light of Lawrence Price, Jr. v. State of Maryland," 405 Md. 10, 949 A.2d 619 (2008). We have reconsidered and see no reason for changing our decision, which we hereby reinstate.

In Price v. State, the Court of Appeals expressly changed the common law of Maryland, which had in numerous cases over the course of 55 years held that, in jury trials in criminal cases, an apparent logical inconsistency between an acquittal on one charge and a conviction on another will not be interfered with by the courts and will not mandate the reversal of the conviction. Leet v. State, 203 Md. 285, 293, 100 A.2d 789 (1953); Williams v. State, 204 Md. 55, 64, 102 A.2d 714 (1954); Ford v. State, 274 Md. 546, 552-53, 337 A.2d 81 (1975); Mack v. State, 300 Md. 583, 601, 479 A.2d 1344 (1984); Shell v. State, 307 Md. 46, 54, 512 A.2d 358 (1986); Wright v. State, 307 Md. 552, 576, 515 A.2d 1157 (1986). And see Hudson v. State, 152 Md.App. 488, 515, 832 A.2d 834 (2003); Price v. State, 172 Md.App. 363, 388-90, 915 A.2d 432 (2007). Our traditional caselaw uniformly recognized that an inconsistent acquittal on one charge following a conviction on a closely related charge may simply have reflected either 1) a permitted compromise among the jurors or 2) an extension of lenity toward a defendant by declining to "pile on" with multiple convictions. That prevailing Maryland view, moreover, was solidly in line with the clear majority of American states and the federal courts. See Eric L. Muller, The Hobgoblin of Our Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.Rev. 771, 787 n. 80 (1998). The approach to the problem of apparent jury inconsistency followed the reasoning of such eminent authorities as Judge Learned Hand in Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925); Justice Holmes in Dunn v. United States, 284 U.S 390, 392, 52 S.Ct. 189, 76 L.Ed. 356 (1932); and Chief Justice Rehnquist in United States v. Powell, 469 U.S. 57, 61-67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). All of that, however, has now been changed diametrically.

I. Our Basic Holding

That change, however, does not affect our basic decision in the present case. The appellant had contended that the jury's acquittal of him on the charge of having committed a fourth-degree sexual offense was logically inconsistent with its conviction of him for sexual child abuse. Our primary holding, however, was that the two verdicts were not necessarily inconsistent at all. Our holding was clear.

Our conclusion is that the two verdicts were not necessarily inconsistent at all. With the failure of the appellant's central thesis, his indirect attack on the inadequacy of Judge McKee's preventive measures self-evidently founders. There was nothing inconsistent and, therefore, nothing even arguably erroneous about the verdicts. The appellant's indirect attack on what Judge McKee did or did not do, therefore, reduces itself to the claim that Judge McKee failed to take all necessary measures to prevent non-error. That is simply not a cognizable appellate contention.

176 Md.App. at 380, 933 A.2d 447 (emphasis supplied).

Our subsequent discussion about the prevailing law as to inconsistent jury verdicts was simply a secondary and "totally independent reason" for affirming the conviction. That entire discussion, moreover, was predicated on an arguendo assumption. Our ultimate decision would have been, and is, the same even had that back-up rationale been unavailing.

The appellant cannot prevail on this first and primary contention about inconsistent verdicts for another and totally independent reason. Even if, purely arguendo, everything we have said to this point were wrong and the two verdicts were, indeed, as inconsistent as inconsistent can be, it would still make no difference to the outcome of this case.

176 Md.App. at 381, 933 A.2d 447 (emphasis supplied).

The Verdicts Were Not Inconsistent

At the outset of our analysis, we recognized that the factual battle was far less about what had happened between the appellant and his stepdaughter than about the significance of what had happened. Even if the two crimes being compared, one leading to a conviction and the other to an acquittal, had arisen out of precisely the same physical happening, they did not necessarily generate the same significance.

The area of factual disagreement between the State and the defense is narrow. It is not nearly so much a disagreement over what happened as it is a disagreement over the significance of what happened.

Id. at 374, 933 A.2d 447.

Key to our conclusion that the two verdicts might well have been completely compatible with each other was the testimony of the 16-year-old stepdaughter. We described that testimony:

The victim, Koree Buffington, had just turned 16 years of age when the act of alleged child abuse took place. She was 17 years old at the time of trial. The appellant is her stepfather, with whom Koree had been living as part of the same household. The household consisted of Koree, her mother, the appellant, Koree's grandmother, Koree's sister, a cousin, and a nephew. According to Koree herself, she and the appellant had always had a "close" relationship with each other. She described how they would regularly "hang out and just ride to school together" and how "they would joke and play-fight with one another."

In her trial testimony, Koree described the abusive incident. On a day several days after Koree's 16th birthday, the appellant knocked on Koree's bedroom door and she told him to come in. "After he came in, I was like sitting on the floor and he then pulled me up and put my hands around him, and he started touching me." She testified that the appellant placed her hands around his neck and then "he like took my hands down, and I hugged him like around where his waist was." Koree's critical testimony was that while the appellant was holding her, he put his hands inside her underwear. "He started rubbing outside my vagina." After that, the appellant "just started hugging me, and told me he loved me, and left."

... Koree elaborated that while she had a "playful relationship" with the appellant, it was "not O.K. for him to kiss her." She added that she did not believe that the appellant was trying to hurt her.

176 Md.App. at 370-71, 933 A.2d 447 (emphasis supplied).

As this case unfolded, the appellant's insistent position was not that, in the course of roughhousing, he might not have inappropriately touched his stepdaughter but that he had not done so for any purpose of "sexual arousal or gratification." A co-worker of the stepdaughter who confronted the appellant on her own initiative testified:

According to Ms. Tribble, the appellant neither admitted nor denied the accusation. According to her testimony, "[H]e did share the possibility [that] if there's anything he's guilty of, its playing rough with his daughters or sometimes not knowing when enough is enough."

Id. at 372, 933 A.2d 447 (emphasis supplied).

The testimony of the investigating detective was to the same effect. As we summarized it:

The third and final State's witness was Detective Wayne Pyles, who reported the responses of the appellant when confronted with the accusation. In a written statement, the appellant averred that he had no recollection of ever having touched his stepdaughter's breast or vagina. The appellant added a message to Koree in which he said:

Because what you said happened, I'm so sorry. I love you. Daren.

When Detective Pyles then asked the appellant if he was "apologizing to Koree because you fondled her breasts and vagina?," the appellant declined to answer because, he told the detective, "the word `fondled' implied a sexual intent." The appellant told Detective Pyles that "Koree was not lying," but that he steadfastly denied doing "anything of a sexual connotation."

Id. (emphasis supplied).

The appellant took the stand in his own defense. His testimony did not disavow the possibility of an inappropriate touching but strenuously disavowed any sexual intent or purpose behind such a touching.

He added that Koree was very "tomboyish" and physical and that, in interacting, the two of them would wrestle, box, and "we would touch." He did not deny touching Koree because, as he explained, "We play all the time, for me to say I have never touched her would be for me to just outright lie." He further explained that he wrote the apology to Koree after speaking with Detective Pyles "because it deeply hurt me to think that she took anything, or our playing, in any kind of sexual way." He concluded that the incident in question did not happen in the way that Koree reported it. The two of them were "just playing at the time."

Id. at 373, 933 A.2d 447 (emphasis supplied).

Also called to the stand on the appellant's behalf were his wife (the victim's mother) and his 18-year-old daughter, both of whom testified that although the appellant and his stepdaughter "played a lot" and indulged in "a lot of roughhousing," they had never observed "any behavior of a sexual nature between the two." Our conclusion was that the appellant's persistent and apparently credible strategy of...