DAVID DEODATUS NDUNGURU v. STATE OF MARYLAND
Court of Special Appeals, Graeff, Aug. 30, 2017,
Inconsistent Verdict- Preservation- A defendant who fails to object when the trial judge sua sponte instructs a jury that has returned an inconsistent verdict to continue deliberating is not entitled to appellate relief.

Facts:
In 2015, Ndunguru was charged with robbery, theft, and assault in PG County.
At the conclusion of his jury trial, the jury initially came back with an inconsistent verdict: voting to convict on assault and robbery but to acquit of theft.
As the jury was being polled and before the jury officially hearkened to the verdict, the circuit court interrupted and convened a bench conference.
The judge took issue with the inconsistent verdicts and wanted to send the jury back to deliberate further.
The defense wanted an acquittal on the theft and robbery charges, but the judge noted that no verdict was accepted.
The defense concluded with “Thank you, Judge,” but did not object to sending the jury back to deliberate further.
The jury was instructed that its verdict was inconsistent and that an acquittal on theft meant an acquittal on robbery. The jury was sent back to deliberate further and came back fifteen minutes later with a verdict to convict on all three counts.
Ndunguru appealed, arguing that when the defendant didn’t object to the inconsistent verdict it was improper for the judge to decide for himself to send them back to deliberate further.

Held: The Court of Appeals disagreed. Because Ndunguru didn’t object to the judge’s actions, he lost his right to appeal the issue.

Inconsistent Verdict- Factually inconsistent- where a jury gives two different verdicts on different crimes when there was only one set of proof given at trial, making the verdicts illogical.

Note: An example of a factually inconsistent verdict might be where a defendant is caught with a pistol and convicted of “possession of a regulated firearm after prior conviction of a disqualifying crime” but acquitted of “wear/carry/transport of a handgun.” The verdict doesn’t make sense logically, but it’s not illegal (both crimes have different elements).

Inconsistent Verdict- Legally inconsistent – A legally inconsistent verdict is one that is not legally possible

From the Case: Finding the defendant guilty of robbery but not guilty of theft is legally inconsistent. Robbery is theft by force or threat of force, so if there was no theft then there was no robbery.

Preservation- In order to appeal an issue, a defendant must normally object to it at trial

From the Case: If the defendant had objected to sending the jury back to deliberate, then the trial judge may have changed his mind and not sent them back. The defendant cannot wait to see if he benefits from the mistake and then complain that the conviction was improper if he doesn’t.