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Md. top court: Lawyers must challenge inconsistent verdicts before jury leaves

 A trial court judge can send a jury back in for deliberations to resolve inconsistent verdicts when the verdicts are not final and the jury has not been discharged, Judge Shirley M. Watts wrote as a divided Court of Appeals upheld a felony-murder conviction in Prince George’s County. ‘At the risk of stating the obvious, this method of correcting any inconsistency in the verdicts is unavailable where a defendant raises an issue as to inconsistent verdicts after the verdicts have become final and the trial court has discharged the jury,’ she wrote. (File photo)


A trial court judge can send a jury back in for deliberations to resolve inconsistent verdicts when the verdicts are not final and the jury has not been discharged, Judge Shirley M. Watts wrote as a divided Court of Appeals upheld a felony-murder conviction in Prince George’s County. ‘At the risk of stating the obvious, this method of correcting any inconsistency in the verdicts is unavailable where a defendant raises an issue as to inconsistent verdicts after the verdicts have become final and the trial court has discharged the jury,’ she wrote. (File photo)

Criminal-defense attorneys who hesitate in challenging inconsistent verdicts are lost – and so, therefore, are their clients, Maryland’s top court has ruled in affirming the first-degree felony murder conviction of a man the same jury acquitted of the underlying felony of robbery.

In its 4-3 decision, the Court of Appeals said defense counsel must object to such allegedly inconsistent jury verdicts before they become final and the jurors are discharged. To rule otherwise would absolve defense counsel of their tardiness and require trial judges to recall jurors to correct the alleged mistake, the high court said in affirming a decision of the intermediate Court of Special Appeals.

The Court of Appeals, in upholding Dominic Givens’ felony-murder conviction, said defense attorney George Harper failed to challenge the allegedly inconsistent verdict until nearly 75 minutes after the Prince George’s County Circuit Court jury had issued its decision and been dismissed March 14, 2013. By then, the objection was much too late.

A trial court judge can send a jury back in for deliberations to resolve inconsistent verdicts when the verdicts are not final and the jury has not been discharged, Judge Shirley M. Watts wrote Monday in the court’s majority opinion.

“At the risk of stating the obvious, this method of correcting any inconsistency in the verdicts is unavailable where a defendant raises an issue as to inconsistent verdicts after the verdicts have become final and the trial court has discharged the jury,” Watts added. “In other words, where (as here) a defendant raises an issue as to inconsistent verdicts after the verdicts have become final and the trial court has discharged the jury, the defendant’s delay deprives the trial court of the opportunity to address any inconsistency in the verdicts.”

Requiring defense counsel to raise objections quickly to inconsistent verdicts is “entirely reasonable” because inconsistencies “are, more often than not, immediately recognizable,” the high court added, citing the facts of Givens’ felony-murder conviction.

To be convicted of felony murder, defendants need not have intended for the victim to be killed or even strike the fatal blow. The crime is in participating in a felony in which the victim dies as a proximate cause of the crime.

Thus, a felony-murder conviction is inconsistent with the defendant’s acquittal of the underlying felony.

‘Ample opportunity’

Givens, though not accused of firing the fatal shot, was charged with felony murder in the 2011 slaying of Marvin Darrell Tomlinson during a robbery Givens allegedly committed with others.

Harper, in his belated motion challenging the verdict, argued that the jury could not have convicted Givens of felony murder after having acquitted him of the underlying felony of robbery.

But the high court said Harper had squandered his “ample opportunity” to object to the inconsistent verdicts before the jury was dismissed.

For example, Prince George’s County Circuit Judge Albert W. Northrop asked Harper if he had any requests after the verdict was announced and he responded only that he wanted the jurors to be polled as to the guilty verdict and each reiterated the decision, the high court said.

Later, “with the jury discharged and the circuit court adjourned, it was too late for the circuit court to send the jury back to resolve the inconsistency in the verdicts – assuming that the circuit court agreed with [Harper] that there was an inconsistency in the verdicts,” Watts wrote. “Simply stated, [Harper’s] post-trial motion to strike [the verdict] was too late.”

Chief Judge Mary Ellen Barbera and Judges Robert N. McDonald and Michele D. Hotten joined Watts’ opinion.

The Maryland attorney general’s office praised the court’s decision.

“We are pleased that the Court of Appeals has held that a defendant must preserve an inconsistent jury verdict claim before the verdict is final and the jury is discharged in order to claim error on appeal,” the office stated. “In doing so, the Court has joined the vast majority of jurisdictions to consider the issue, and has ensured that the defendant cannot ‘accept the jury’s lenity in the trial court, only to seek a windfall reversal on appeal[.]’”

Error by judge

In dissent, Judge Clayton Greene Jr. called it “an injustice” to permit Givens’ felony-murder conviction to stand solely because the defense attorney failed to raise a valid objection before the jury was discharged.

The trial judge, Northrop, committed “plain error” in permitting the conviction to stand when the defendant was acquitted of the underlying felony – regardless of when Harper raised the objection, Greene wrote.

“The verdict of guilty of felony murder was invalid the moment the jury announced it in open court,” he added.

Greene was joined in dissent by Judges Sally D. Adkins and Lynne A. Battaglia, a retired jurist sitting by special assignment.

Harper, an Upper Marlboro solo practitioner, declined to comment on the decision.

The Court of Appeals rendered its decision in Dominic Givens v. State of Maryland, No. 88, September Term 2015.