State v. Mumford: A New Exception Affording Relief from Inconsistent Verdicts

Jeff Welty blogged here about inconsistent verdicts.  As he explained, a defendant generally isn’t entitled to relief from inconsistent verdicts, which may result from jury irrationality, a jury’s desire to cut the defendant a break, or some other unknown reason.  The defendant is protected by the court’s review of whether substantial evidence supports the charge for which he was convicted.  So long as it does, the jury’s verdict generally stands—subject to the exceptions noted in the earlier post.

The court of appeals in State v. Mumford, decided last week, created a new exception, holding that when a jury convicts of the greater charge and acquits on the lesser charge, then a “logically inconsistent and legally contradictory” verdict results.

Mumford drove into a crowd of people leaving a raucous gathering around 12:30 a.m.  Gunshots were fired, and Mumford’s car was hit by a bullet.  Mumford’s car struck five people, severely injuring all of them.  Mumford left the scene and was arrested later that morning.  He was interviewed about two hours after the accident, and, because he smelled strongly of alcohol, was arrested for impaired driving.  A breath test administered at 3:47 a.m. revealed a breath alcohol concentration of 0.09.

Mumford admitted to drinking one 32-ounce beer, having a few swallows of another beer, and drinking a shot of liquor in the hours before the accident.  He also said he took two or three big swallows of beer after the accident.

Mumford was indicted for five counts of felony serious injury by vehicle and one count of driving while impaired, among other charges.

Felony serious injury by vehicle is a relatively new offense, created by the Motor Vehicle Driver Protection Act of 2006.  A person commits the offense by (1) unintentionally causing serious injury to another person, (2) while engaged in the offense of impaired driving under G.S. 20‑138.1 or G.S. 20‑138.2, if (3) the impaired driving is the proximate cause of the serious injury.  G.S. 20-141.4(a3). Thus, impaired driving is a lesser included offense of felony serious injury by vehicle.

At Mumford’s trial, the judge instructed the jury that to find the defendant guilty of felony serious injury by vehicle, the state had to prove, among other elements, that the defendant was driving the vehicle “under the influence of an impairing substance.”

The jury found defendant not guilty of impaired driving but guilty of five counts of felony serious injury by vehicle.  The defendant moved to set aside these convictions on the basis that they were legally inconsistent with his acquittal on the impaired driving charge. The trial court denied the defendant’s motion.

The appellate court began by citing longstanding principle that inconsistent jury verdicts should not be disturbed where there is sufficient evidence to convict adduced at trial and the inconsistency may be explained by  the record or jury lenity. The court described the different types of inconsistent verdicts, which also are described in Jeff’s earlier post.  The court noted exceptions to the general rule applicable to contradictory verdicts for convictions of mutually exclusive crimes and in the felonious possession of stolen goods context when the defendant is acquitted of the breaking and entering upon which the felonious possession is based (hereinafter referred to as the “Goblet exception”).  See State v. Goblet, 173 N.C. App. 112 (2005).

The court concluded that the jury verdicts in Mumford’s case fell within the “logically inconsistent and legally contradictory exception.” (As an aside, I’m not sure what the distinction is between logical and legal inconsistency given that any logical inconsistency is based upon interpretation of legal principles, namely, elements of crimes.)  The court distinguished cases allowing inconsistent verdicts to stand based on theories of jury lenity or confusion on the basis that Mumford was acquitted of the lesser offense and convicted of the greater.  In essence, the court broadened the Goblet exception by affording relief from inconsistent verdicts in all cases in which a defendant is charged with and acquitted of a lesser included offense and convicted of the greater offense.

The appellate court suggested that the inconsistent verdicts might have been avoided by instructing the jury that in order to convict on the greater charge, it must find the defendant guilty of the lesser charge.  I’m not convinced such an instruction would be proper given that felony serious injury by vehicle does not require that the defendant be convicted of impaired driving, but instead requires commission of the lesser offense.

Finally, the appellate court opined that the trial court should have declined to accept the inconsistent verdicts in Mumford’s case and, instead, should have reinstructed the jury, directing it to deliberate further.  As support for the propriety of such action, the court cites State v. Abraham, 338 N.C. 315 (1994), a case in which the trial court directed the jury to deliberate further after it returned verdicts of guilty for first- and second-degree murder against the same defendant for the same death. Surely, however, instructing a jury to deliberate further after it has acquitted a defendant is a horse of a different color.  Ordering a jury to reconsider an acquittal would subject a defendant to double jeopardy, thereby violating the Fifth Amendment.

Readers, we’d love to hear from you about how Mumford might affect your practice. Prosecutors:  Will Mumford alter your charging decisions?  Defense counsel:  Will you ask for different instructions?   Judges:  Will you follow the pattern jury instructions in cases in cases like Mumford?  Should the pattern jury instructions be amended?