Ndunguru v. State

Circuit Court for Prince George’s County
Case No. CT150858X

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 520

September Term, 2016

______________________________________

DAVID DEODATUS NDUNGURU

v.

STATE OF MARYLAND

______________________________________

Graeff,
Kehoe,
Rodowsky, Lawrence F.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Graeff, J.
______________________________________

Filed: August 30, 2017
 David Deodatus Ndunguru, appellant, was convicted by a jury in the Circuit Court

for Prince George’s County of robbery, assault in the second degree, and theft of property

having a value of less than $100. The court imposed a sentence of ten years’ imprisonment,

all but three years suspended, for the robbery conviction, to be followed by five years’

probation. The court merged the other convictions for sentencing purposes.

On appeal, appellant presents two questions for this Court’s review:

1. Did the circuit court err in sustaining the State’s objection to appellant’s
testimony about a police officer’s statement of intent?

2. Did the circuit court err in asking the jury to resolve its inconsistent
verdict sua sponte?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2015, members of the Tanzanian community held a party at “Signature

Blue,” an event venue in Beltsville, Maryland. Among the attendees were

Andrew Ngatena and his friend, David Mwimanzi, who had been hired as the “disc jockey”

(“DJ”) for the party.

During the party, Mr. Ngatena stood near Mr. Mwimanzi so he could observe him

at work and learn “how to [DJ] the music.” At some point, Mr. Ngatena left “to grab a

drink.” When he returned, appellant, whom he did not know, was standing near the DJ

booth, impeding his path. Mr. Ngatena asked appellant to move, but appellant refused to

do so. Mr. Ngatena then decided to go “outside to grab a smoke.” Although Mr. Ngatena

was unable to recall precisely when he went outside to smoke, he estimated that the time

was between 9:00 and 11:00 p.m.
 Appellant followed Mr. Ngatena outside. At first, the two men engaged in

conversation, but at some point, appellant “took offense” to something that Mr. Ngatena

said and punched Mr. Ngatena in the face. Both men began throwing punches at each

other. A second unknown man, who was standing behind Mr. Ngatena, then knocked

Mr. Ngatena to the ground. A third man, whom Mr. Ngatena also did not know, joined the

fight, and the three men kicked Mr. Ngatena repeatedly.

The assailants eventually stopped kicking Mr. Ngatena and began to walk away. At

that point, Mr. Ngatena “started throwing the words at them,” prompting them to return

and resume punching him. By then, Mr. Ngatena was struggling to retain consciousness,

but he was able to “sense” that the three assailants began to rifle through his pockets, taking

his cell phone, wallet, passport, and gold necklace. Finally, appellant and the two unknown

assailants fled.

Shortly after appellant and his accomplices fled, Mr. Mwimanzi was notified that

his friend had been beaten and robbed. For the next few hours, Mr. Mwimanzi and others

at the party attempted to contact appellant to recover the property taken from Mr. Ngatena

and resolve the dispute without police involvement. Mr. Mwimanzi ultimately called the

police, and Detective Ben Leach, a member of the Prince George’s County Police

Department, responded to Signature Blue at approximately 2:46 a.m. on April 26.

Mr. Mwimanzi was acquainted with appellant because the two men had attended

several events held by the tightly-knit Tanzanian community, where Mr. Mwimanzi had

been a DJ and appellant had performed as a member of a three-man rap ensemble.

Mr. Mwimanzi identified appellant to Detective Leach as one of the assailants.

2
Detective Leach obtained a photograph of appellant and showed it to Mr. Ngatena, who

identified appellant as the man who robbed him. An arrest warrant was issued for

appellant.

Prior to appellant’s arrest on June 1, 2015, Mr. Ngatena contacted appellant via

Facebook and telephone, attempting to obtain his stolen property. When Detective Leach

learned of those attempts at communication with appellant, he advised Mr. Ngatena “not

to contact” appellant, and Mr. Ngatena thereafter took that advice. Mr. Ngatena testified

that, at one point, appellant called him. Mr. Ngatena’s property eventually was given to

Mr. Mwimanzi, who returned it to Mr. Ngatena.

Appellant testified that he did not know Mr. Ngatena, did not see him the night of

the incident, and he did not assault Mr. Ngatena or take his property. He denied that he

ever called Mr. Ngatena.

The jury initially returned an inconsistent verdict, convicting appellant of

second-degree assault and robbery but acquitting him of theft. As discussed in more detail,

infra, the circuit court re-instructed the jury, advising it to continue its deliberations. The

jury then convicted appellant of all three charges.

DISCUSSION

I.

Appellant contends that the circuit court erred in sustaining the State’s objection to

his testimony that a police officer told him that they were going to search his cell phone to

determine if he called Mr. Ngatena. Appellant concedes that this testimony was hearsay,

but he argues that it was admissible pursuant to Maryland Rule 5-803(b)(3), a hearsay

3
exception addressing, among other things, a “statement of the declarant’s then existing

state of mind, . . . offered to prove the declarant’s then existing condition or the declarant’s

future action.” Appellant argues that the “police officer’s statement to [a]ppellant – that

he or she intended or planned to examine his phone to determine whether he or she had

called [Mr.] Ngatena – was admissible to prove that the officer had acted in conformity

with that plan.” He contends that excluding this testimony prejudiced his defense because

testimony regarding the police officer’s intent to search his cell phone would have cast

doubt on the victim’s testimony, as well as bolstered his testimony.

The State argues that this claim is not preserved for this Court’s review because

appellant failed to proffer below the relevance of the excluded testimony. In any event, it

argues that appellant answered the question and the State did not move to strike the

testimony from the record, and therefore, appellant suffered no prejudice as a result of the

court’s ruling.

We begin our analysis by setting forth the relevant factual background. During

appellant’s testimony, the following colloquy occurred:

[DEFENSE COUNSEL]: Okay. So is it your testimony that at no time did
you assault Mr. Ngatena?

[APPELLANT]: No.

[DEFENSE COUNSEL]: Okay. And did you at any time take possession of
any of his property?

[APPELLANT]: No.

[DEFENSE COUNSEL]: Okay. And at any time have you assisted or been
asked to assist in the return retrieval of his property?

4
 [APPELLANT]: No.

[DEFENSE COUNSEL]: Did you ever call him?

[APPELLANT]: No.

[DEFENSE COUNSEL]: And you spoke with the police. Correct?

[APPELLANT]: Yeah, after they came to arrest me.

[DEFENSE COUNSEL]: Okay. And you actually made a statement at the
police station?

[APPELLANT]: I -- when they came at my house to arrest me, they didn’t
tell me why they are arresting me. So, when we got to the police station,
that’s when they told me I’m arrested because I assaulted somebody.

[DEFENSE COUNSEL]: Okay. Did you offer your phone to them?

[APPELLANT]: Yeah. I gave them my phone.

[DEFENSE COUNSEL]: Did they -- did anybody tell you they were going
to search your phone to find out if you had called this person?

[APPELLANT]: Yeah.

[THE STATE]: Objection, Your Honor.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Did they take your phone?

[APPELLANT]: Yeah.

[DEFENSE COUNSEL]: Did they give it back at some point?

[APPELLANT]: Yeah.

[DEFENSE COUNSEL]: No further questions, Your Honor.

(emphasis added).

5
 As the State points out, when the prosecutor objected to appellant’s testimony, and

the court sustained that objection, appellant did not proffer the basis for the admissibility

of the excluded testimony. At no time did appellant argue, as he does on appeal, that the

testimony was admissible pursuant to Rule 5-803(b)(3).

“Ordinarily, a formal proffer of the contents and relevancy of the excluded evidence

must be made in order to preserve for review the propriety of the trial court’s decision to

exclude the subject evidence.” Merzbacher v. State, 346 Md. 391, 416 (1997). Accord

Mack v. State, 300 Md. 583, 603 (1984), abrogated on other grounds, Price v. State, 405

Md. 10 (2008). When “evidence is inadmissible on its face and admissible only for a

limited purpose or under some theory, the proponent must . . . explain to the court how the

evidence is admissible and why it should be received.” Randall v. State, 223 Md. App.

519, 557 (2015) (quoting In re Adoption/Guardianship Nos. CAA92-10852 and

CAA92-10853, 103 Md. App. 1, 33 (1994)). Accord 5 Lynn McLain, Maryland Evidence,

State and Federal, § 103:20 (May 2017) (“On appeal, the proponent cannot argue either

that the evidence was admissible as nonhearsay or falls within a particular hearsay

exception, unless the proponent made that particular argument below.”).

Here, as indicated, appellant failed to explain why the excluded testimony was

admissible. Accordingly, this contention is not preserved for this Court’s review, and we

decline to address it.

II.

Appellant’s second contention is based on the jury verdicts. On the second day of

trial, the jury returned its initial verdicts, finding appellant guilty of assault in the second

6
degree and robbery, but not guilty of theft. Defense counsel then requested the court to

poll the jury. Prior to the conclusion of the polling, however, the circuit court interrupted

the proceedings and convened a bench conference, where the following occurred:

THE COURT: How can it legally be guilty of robbery and not guilty of
theft?

[DEFENSE COUNSEL]: I’m waiting on that answer. It’s inconsistent.

THE COURT: Okay? So, we can accept that factual inconsistent verdict,
but I don’t think factually there is anything here.

This is a legally inconsistent verdict. Right?

[THE STATE]: Right.

THE COURT: So, I’m inclined to tell them that it can’t be. That’s if it’s
guilty of robbery he must be guilty of theft.

[DEFENSE COUNSEL]: Of course my position is he is not guilty [of] theft.
He is not guilty.

THE COURT: He must be -- he must be not guilty of robbery?

[DEFENSE COUNSEL]: Right.

THE COURT: So, I will have them go back and continue their deliberation
to reach a consistent verdict.

[DEFENSE COUNSEL]: I guess, for the record, again I would proffer that
he has been acquitted of the theft. Therefore he must legally be acquitted of
the robbery, and that leaves us --

THE COURT: He’s not acquitted or convicted of anything yet, because we
haven’t accepted the verdict. So noted.

[DEFENSE COUNSEL]: Thank you, Judge.

THE COURT: Okay.

7
 The circuit court then advised the jury that the verdicts it had reached, finding

appellant guilty of robbery but not guilty of theft, were inconsistent, explaining that theft

was part of robbery, i.e., robbery is a theft by force or threat of force. The court instructed

the jury:

[Y]ou can’t have found him not guilty of theft but guilty of robbery. If he is
guilty of robbery, he is also guilty of theft.

If he is not guilty of theft, he . . . must be not guilty of robbery. Okay?

So, what I’m going to do is ask you to go back to the jury room and
continue your deliberations and come up with a consistent verdict.

Fifteen minutes later, the jury came back with its verdict. It found appellant guilty

of all charges: assault in the second degree, robbery, and theft. The jury was then polled

and the verdict hearkened.

Appellant contends that the circuit court erred in sua sponte ordering the jury to

reconsider its inconsistent verdict. He asserts that only the defendant can object to an

inconsistent verdict, and because he did not do so, the proper remedy is to vacate the theft

conviction.

The State contends that this claim is not preserved for this Court’s review because

appellant’s “requested relief below was different [from] what he now argues on appeal.”

Moreover, the State argues that the circuit court did not err in instructing the jury to resume

its deliberations to resolve the inconsistent verdict because appellant did object to the

inconsistency, and by asking the trial court to enter an acquittal as to the theft count, counsel

was “signaling to the court that he wanted the jury to continue deliberating in the hopes

that the inconsistency would be resolved in his favor.”

8
 Until relatively recently, inconsistent verdicts of conviction and acquittal by a jury

in a criminal case were permitted because the inconsistency could be the result of lenity.

Travis v. State, 218 Md. App. 410, 446 (2014). In 2008, however, the Court of Appeals

held that inconsistent verdicts would no longer be permitted in Maryland. Price, 405 Md.

at 29. The concurring opinion written by Judge Harrell stated that the majority opinion

applied only to “legally inconsistent verdicts,” not “factually inconsistent” verdicts. Id. at

35 (Harrell, J., concurring). The Court of Appeals subsequently confirmed this assertion,

holding that, although legally inconsistent verdicts are no longer permissible, jury verdicts

that are illogical or factually inconsistent are permitted in criminal trials. McNeal v. State,

426 Md. 455, 465-66 (2012). Accord Givens v. State, 449 Md. 433, 457-58 (2016).

The Court of Appeals has explained that factually inconsistent verdicts occur

“‘where a jury renders different verdicts on crimes with distinct elements when there was

only one set of proof at a given trial, which makes the verdict[s] illogical.’” Givens, 449

Md. at 454 (quoting Price, 405 Md. at 35 (Harrell, J., concurring)). Legally inconsistent

verdicts, on the other hand, occur “where a jury acts contrary to a trial [court]’s proper

instructions regarding the law.” Id. (quoting Price, 405 Md. at 35 (Harrell, J., concurring)).

Stated differently,

“[a] legal inconsistency . . . occurs when an acquittal on one charge is
conclusive as to an element which is necessary to[,] and inherent in[,] a
charge on which a conviction has occurred. . . . [I]f the essential elements of
the counts of which the defendant is acquitted are identical and necessary to
prove the count of which the defendant is convicted, then the verdicts are
inconsistent. Verdicts of guilty of crime A but not guilty of crime B, where
both crimes arise out of the same set of facts, are legally inconsistent when
they necessarily involve the conclusion that the same essential element or
elements of each crime were found both to exist and not to exist.”

9
Id. at 455 (quoting Price, 405 Md. at 37-38 (Harrell, J., concurring)).

Here, there is no dispute that the initial verdict, finding appellant not guilty of theft

of property with a value less than $100 but guilty of robbery, was legally inconsistent. An

essential element of both offenses was the taking of property, and if appellant was not

guilty of taking the property, he could not legally be guilty of robbery. See Rudder v.

State, 181 Md. App. 426, 467 (2008) (“Theft is a lesser included offense within the greater

inclusive offense of robbery, for robbery is, by definition, a theft from the person

accomplished by force or threat of force.”). Accord Smith v. State, 412 Md. 150, 166 (2009)

(“misdemeanor theft is a lesser included offense of robbery”).1

As the circuit court noted, however, at the point that these initial inconsistent

verdicts were announced, they had not been accepted by the court, and therefore, the jury

verdicts were not final. See Givens, 449 Md. at 478 (“[A] jury’s verdict is final when the

trial court accepts the verdict after the jury has hearkened to the verdict and/or been

polled.”). Thus, defense counsel’s statement below, that appellant was entitled to an

1
We note that, in the situation where a defendant is charged with felony theft, which
was not the case here, the value of the property stolen is an element of the offense. Counts
v. State, 444 Md. 52, 64 (2015). In that situation, theft is not a lesser included offense of
robbery because each offense contains an element that the other does not, i.e., felony theft
requires proof of a taking of property in excess of a certain value and robbery requires
proof of a use of force. See Jackson v. State, 141 Md. App. 175, 197 (felony theft and
robbery do not merge under the required evidence test, but the rule of lenity required
merging the sentence for felony theft because both convictions “were predicated on the
taking of the same property from the same victim in a single incident”), cert. denied, 368
Md. 240 (2001). As indicated, appellant was convicted, not of felony theft, but of theft of
property with a value less than $100, and therefore, it was a lesser included offense of
robbery.

10
acquittal at that point, was incorrect, as appellant concedes on appeal. Id. at 479 (“[D]ouble

jeopardy . . . ‘prevents further deliberations on an acquittal only after [the] verdict is

final.’”) (quoting Price, 405 Md. at 42 n.11).

The question, thus, is what was the proper course of action for the trial court to take,

and specifically, did the circuit court err in sua sponte advising the jury to reconsider the

inconsistent verdict?2 As explained below, we answer that second question in the

affirmative and hold that a trial court may not, in the absence of a request from the

defendant, advise a jury that its verdicts are inconsistent and send the jury back to resolve

the inconsistency.

In McNeal, the Court of Appeals stated:

The discretionary power of the trial court to disallow inconsistent jury
verdicts was delved into in Price, 405 Md. at 21, 949 A.2d at 626 (citing
Mack v. State, 300 Md. 583, 599-600, 479 A.2d 1344, 1352 (1984)). Quoting
from its opinion in Mack, the Court reiterated “it is the duty of a jury to decide
a criminal case according to established rules of law, however, the trial court
is empowered to set aside the verdict when the jury misapplies the law.” Id.
Inconsistent jury verdicts are contrary to the law, “contrary to the trial court’s
instructions,” and granting of relief “is within the discretion of the trial
court.” Id.

426 Md. at 464. Similarly, this Court has stated

“It is a generally accepted rule that if the jury should return a verdict which
is defective in form or substance, it should not be accepted by the trial judge.
It is essential for the prompt and efficient administration of justice to prevent
defective verdicts from being entered upon the records of the court as well
as to ascertain the real intention of the jury in their finding. Where a verdict
is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the
duty of the trial judge to call the jury’s attention to the defect and to direct

2
Defense counsel did not, as the State suggests, “signal” to the court that counsel
wanted the court to instruct the jury to continue deliberating to resolve the inconsistency.
As discussed, infra, however, he did fail to object to the court’s stated intention to do so.
11
 them to put the verdict in proper form either in the presence of the court or
by returning to their consultation room for the purpose of further
deliberation.”

Bates v. State, 127 Md. App. 678, 699 (quoting Jenkins v. State, 59 Md. App. 612, 621

(1984)), cert. denied, 356 Md. 635 (1999), overruled on other grounds, Tate v. State, 176

Md. App. 365 (2007).

In Givens, however, Judge Watts, writing for the majority of the Court of Appeals,

stated that the “choice of whether to object to inconsistent verdicts belongs to the defendant

alone,” and “the trial court may not, sua sponte, send the jury back to resolve the

inconsistency.” 499 Md. at 476.3 The Court explained why a criminal defendant might

want to object when a jury returns an inconsistent verdict:

A defendant has not only an opportunity, but in some cases an
incentive, to object to inconsistent verdicts before the verdicts become final.
Where a guilty verdict is inconsistent with a not-guilty verdict, the defendant
might raise such an issue with the expectation that the trial court will send
the jury back to resolve the inconsistency, and in hopes that the jury may find
the defendant not guilty of both charges.

Givens, 449 Md. at 475. Sending inconsistent verdicts back to the jury, however, amounts

to another “roll [of] the dice, double or nothing.” Tate v. State, 182 Md. App. 114, 134,

cert. denied, 406 Md. 747 (2008). Thus,

[q]uite often[,] a defendant’s optimal choice will be to remain silent, thus
waiving his [or her] challenge to the inconsistent verdicts and accepting the
conviction that may be inconsistent. A defendant, aware of his or her guilt,
or the overwhelming evidence of guilt, of all of the crimes of which he or she
stands charged, may choose to accept the jury’s lenity. A defendant may be

3
The dissenting opinion, written by Judge Greene, and joined by Judges Adkins and
Battaglia, however, was of the view that a trial judge not only can address an inconsistent
verdict sua sponte, but he or she “has a duty to remedy the problem with regard to
inconsistent verdicts.” Givens v. State, 449 Md. 433, 493 (2016) (Greene, J., dissenting).
12
 wise to accept the inconsistent conviction and accompanying sentence, rather
than look a gift horse in the mouth. If the defendant objects to the
inconsistent verdicts, the jury, given a second chance, may choose to remedy
the error in a manner [that is] not in the defendant’s favor.

Givens, 449 Md. at 475-76 (quoting Price, 405 Md. at 40 n.9 (Harrell, J., concurring)).

To be sure, the issue presented in Givens was different. In that case, the circuit court

accepted the inconsistent verdicts, and the Court of Appeals held that the defendant could

not challenge those verdicts on appeal where he failed to object before the verdicts became

final. Id. Given the Court’s specific statement that the trial court may not, without a request

from the defense, “sua sponte, send the jury back to resolve the inconsistency,” id. at 476,

however, we conclude that the circuit court erred in sua sponte sending the jury back to

resolve the inconsistency in its initial verdicts.

That, however, is not the end of the inquiry. We still must address whether, based

on the arguments made below, appellant is entitled to relief on appeal.

When the circuit court questioned how the verdicts initially reached were consistent,

defense counsel agreed that the verdicts were inconsistent. He did not, however, object to

the verdict or request the court to send the jury back to resolve the inconsistency. Rather,

counsel requested an acquittal on the theft charge, which appellant now agrees was not

warranted. When the court rejected that request and stated its intent to advise the jury to

continue deliberating to reach a consistent verdict, defense counsel did not object.

In Givens, the Court of Appeals held that Givens “waived any issue as to allegedly

inconsistent verdicts by failing to object before the verdicts bec[a]me final and the circuit

court discharged the jury.” Id. at 486. It held that, “to preserve for review any issue as to

13
allegedly inconsistent verdicts, a defendant in a criminal trial by jury must object . . . before

the verdicts are final and the trial court discharges the jury.” Id. at 486.

Again, we recognize that the issue presented in Givens was different. We conclude,

however, that the same analysis applies here. For the same reason that an appellant who

does not object to an inconsistent verdict is not entitled to appellate relief, a defendant who

fails to object when the trial judge sua sponte instructs a jury to continue deliberating to

reach a consistent verdict is not entitled to appellate relief. As Judge Watts explained in

Givens, “one of the purposes of the requirement that a defendant preserve issues for review

is to give a trial court the opportunity to correct any error in the proceedings.” Id. at 473.

Accord Peterson v. State, 444 Md. 105, 126 (2015) (“‘Fairness and the orderly

administration of justice is advanced by requiring counsel to bring the position of their

client to the attention of the lower court at the trial so that the trial court can pass upon, and

possibly correct any errors in the proceedings.’”) (quoting Robinson v. State, 410 Md. 91,

103 (2009)). If appellant had presented to the circuit court the argument he makes on

appeal, the court may have decided not to advise the jury, over defense counsel’s objection,

to reconsider its verdicts.

In this case, the court made clear its intent to resolve what everyone agreed were

legally inconsistent verdicts by instructing the jury to continue to deliberate to reach a

consistent verdict. At no time did defense counsel object or express disagreement with this

intended action. He merely stated: “Thank you, Judge.” Under these circumstances,

appellant’s contention on appeal that the court erred in sua sponte advising the jury to

reconsider its verdicts is not preserved, and he is not entitled to relief on this ground. See

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Gilliam v. State, 331 Md. 651, 691 (1993) (“As [defendant] did not object to the course of

action . . . taken by the court, and apparently indicated his agreement with it, he cannot

now be heard to complain that the court’s action was wrong.”), cert. denied, 510 U.S. 1077

(1994); Watkins v. State, 328 Md. 95, 99-100 (1992) (where party acquiesces in court’s

ruling, there is no basis for appeal of that ruling), overruled on other grounds, Calloway v.

State, 414 Md. 616 (2010). See also Tate, 182 Md. App. at 135 (“The defendant may not

stand mute and later complain about the verdicts he did nothing to cure at the only time a

cure was still possible.”).4 Accordingly, we decline to vacate appellant’s conviction for

theft.

JUDGMENTS OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.

4
Appellant did not ask this Court to review the circuit court’s decision for plain
error, and he gave no reason why he did not object to the court’s instruction to the jury. Cf.
Givens, 449 Md. at 481-82 (declining to engage in plain error review where Givens did not
request it and did not argue that the failure to raise the argument that the verdicts were
inconsistent was not a matter of trial tactics).
15