Zarnoch, Nazarian, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.
One of the questions presented in this appeal is whether a jury can be reconvened after discharge, but before the jury has dispersed. Carlos Teixeira challenges his convictions for armed carjacking, carjacking and associated offenses because he thinks the jury, sitting in the Circuit Court for Baltimore City, rendered inconsistent verdicts that are legally repugnant. The State responds at the outset that because Teixeira's objection below came too late – after the jurors were dismissed from the courtroom - his appellate complaint falls victim to procedural default. The State follows up with the assertion that the disputed verdicts are at most factually inconsistent, and must be permitted to stand as such verdicts have been tolerated in the past by judges in Maryland. For the reasons that follow, we shall hold, first, that Teixeira's challenge to the inconsistent verdicts has been preserved and that the verdicts at issue are not legally inconsistent. We shall therefore affirm in all respects.
It is unnecessary to recite the underlying facts in any but a summary fashion because for the most part "they [otherwise] do not bear on the issues we are asked to consider." Fitzpatrick v. Robinson, ___F.3d ___, ___, 2013 WL3762886 at *1 (6th Cir. July 19, 2013). See generally Hill v. State, 418 Md. 62, 66 (2011); Cure v. State, 195 Md.App. 557, 561 (2010) (only brief summary necessary), aff'd on other grounds, 421 Md. 300 (2011); Washington v. State, 180 Md.App. 458, 461-62 n.2 (2008) (recitation of full record unnecessary because no challenge made to sufficiency of evidence).
This case has as its genesis a carjacking and robbery at about 11:00 p.m. on October 3, 2010 on Linnard Street in Baltimore City. Lionel Torrance was in his car – a Crown Victoria – when he was approached by two men. Mr. Torrance said that one of the men, later identified as Teixeira, pointed a handgun at him and demanded money while the second told him to open the trunk of his vehicle. Torrence described the weapon as "an automatic gun, " although he was unsure of the exact type. He described hearing the gunman operate the slide mechanism. Torrance gave the gunman $45, left his car and started across the street. When one of the assailants ordered him to "Come here, " Torrance fled, hid in an alley and watched as his stolen car drove by with Teixeira at the wheel.
The police were summoned, and Sgt. Warren Stephens spotted Torrance's vehicle about an hour after the carjacking. The car stopped at 3200 North Avenue and parked. Sgt. Stephens stopped some distance away, and parked at a point from which he could observe the Crown Victoria. A man, later identified as Teixeira, was "standing outside the passenger door with the door opened" communicating with another person who was at the wheel. Teixeira and the driver left the Crown Victoria and walked up North Avenue and passed Sgt. Stephens's car. When other patrol officers arrived at the scene, Teixeira fled on foot, leaving his companion behind. Officers soon caught up with Teixeira. No handgun was recovered at that time, but police would later find a "BB caliber 4.6mm Crow 77."
Following a jury trial, Teixeira was convicted of armed carjacking, carjacking, conspiracy to commit armed carjacking, armed robbery, robbery, unauthorized removal of property and both first and second-degree assault. The jury acquitted him of use of a handgun in the commission of a crime of violence and wearing, carrying and transporting a handgun. The trial court handed down consecutive sentences of twenty, ten and ten years respectively for the armed carjacking, armed robbery and conspiracy. The remaining counts were merged.
Asserting that the trial court erred by not directing the jury to resume deliberations, Teixeira maintains that the jury's acquittal of the handgun charges renders inconsistent those guilty verdicts on charges that were based on the use or possession of a dangerous weapon. Although Teixeira claims that his objection to the inconsistent verdicts was "timely, " the State disagrees, and posits that Teixeira waited until after the jury had been discharged before voicing his objection.
Standard of Review
We review de novo the question of whether verdicts are legally inconsistent. This is so because we review the elements of the offense at issue in light of the jury instructions. See State v. Blackmon, 702 S.E.2d 833, 837-38 ( N.C. App. 2010) (noting that majority of North Carolina cases employ de novo standard of review); State v. Hazel, 941 A.2d 378, 384 (Conn. App. 2008) (resolution of claim of inconsistent verdicts presents question of law subject to plenary review), cert. denied, 947 A.2d 343 (Conn. 2008). See also People v. Tucker, 431 N.E.2d 617, 619 (N.Y. 1981) (record reviewed only as to jury charge, without consideration as to accuracy of charge). Cf. United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012) ("de novo standard of review applies to the legal determination of whether a defendant may upset a guilty verdict because it is inconsistent with an acquittal.") (citation omitted).
After the jury found Teixeira guilty on all but the weapons counts, the jurors were polled and hearkened. The trial court then excused them:
THE COURT: Members of the jury, on behalf of the parties, the attorneys, and myself, personally, I think [sic] you for your service and attention that you've given to this case. I also want to advise you that you have in front of you your verifications of your service here. Madam Clerk in a few moments will be returning to you your electronic devices. I'm going to ask that you return momentarily to the jury deliberation room so that you can retrieve your personal belongings and Madam Clerk will give you your electronic devices there. Thank you again for your service. Have a good evening.
After the jurors were excused, defense counsel alerted the trial court to his concern about the verdicts:
[DEFENSE COUNSEL]: Can we discuss before the jury leaves, Your Honor?
Because . . . it's my understanding and I'm not quite clear about this because it's never happened to me before. But the jury has found Mr. Teixeira not guilty of the handgun charges but they did find him guilty of armed carjacking and robbery with a deadly weapon. I believe these are inconsistent verdicts. I don't believe that he could – that there is – I mean, I don't know what the scenario is, legally, under which they can find that he had no handgun, which is I believe what this verdict is saying.
But at the same time, he was armed during a carjacking and armed with a deadly weapon during a robbery. It's my understanding and I know the law, the inconsistent verdict law is basically not well formed on this, but that I need to raise this while the jury is still available if we can address that somehow with the jury. I mean, as to the inconsistency in the verdict as I see it.
After briefly hearing from both parties, the court directed the clerk to "[h]ave the jury remain" while further argument was presented. At the outset, the prosecutor appeared to agree that the issue was preserved, but that there was some confusion on this point:
[PROSECUTOR]: So, it is now preserved, Your Honor, for a later consideration. I believe it's inappropriate to bring out the jury to have them go back over what was going on ...