I wrote here about the court of appeals decision in State v. Mumford, __ N.C. App. ___, 688 S.E.2d 458 (2010), vacating the defendant’s convictions for felony serious injury by vehicle based on his acquittal of driving while impaired, a lesser included offense. The state supreme court reversed the court of appeals on Friday, holding that because the verdicts were merely inconsistent, rather than legally contradictory, and sufficient evidence was presented at trial to support the defendant’s convictions for felony serious injury by vehicle, the court of appeals erred in vacating the jury’s verdicts.
The supreme court explained the long-established rule that mere inconsistency does not invalidate a verdict supported by sufficient evidence, but that when a verdict is inconsistent and mutually exclusive, a defendant is entitled to relief. The verdicts in Mumford’s case were of the former variety as he was convicted of the greater offense and acquitted of the lesser. In contrast, verdicts are mutually exclusive when they “’purport[] to establish that the [defendant] is guilty of two separate and distinct criminal offenses’” notwithstanding that the guilt of one offense necessary excludes guilt of the other. (Slip. Op. at 10 (quoting State v. Meshaw, 246 N.C. 205, 207 (1957).) For example, verdicts finding a defendant guilty of both embezzlement and obtaining property false pretenses were considered inconsistent and mutually exclusive in State v. Speckman, 326 N.C. 576, 577 (1990), as property acquired through embezzlement must be acquired lawfully, pursuant to a trust relationship, and then wrongly converted, whereas property acquired by false pretenses must be acquired unlawfully pursuant to a false representation.
In addition to rejecting the exception to the inconsistent verdict rule created by the court of appeals decision in Mumford, which afforded a claim for relief to defendants charged with and acquitted of a lesser included offense and convicted of the greater offense, the supreme court opinion in Mumford eliminated the narrower exception to the inconsistent verdict rule applied in earlier felonious possession of stolen goods cases. (Jeff Welty blogged about that exception here.) Recognizing that the court’s decisions in State v. Perry, 305 N.C. 225 (1982) (vacating the defendant’s conviction for felonious larceny committed pursuant to a breaking and entering based upon the defendant’s acquittal of breaking and entering), and State v. Holloway, 265 N.C. 581 (1965) (per curiam) (ordering a new trial upon charges of felonious larceny based on defendant’s acquittal of breaking and entering and the court’s failure to instruct the jury regarding the state’s burden to prove the value of the stolen property), departed from “long-standing inconsistent verdict precedent” the court overruled those cases to the extent that they are contrary to Mumford and that long-standing precedent.
State v. Mumford thus leaves us with a consistent rule for inconsistent verdicts.
The court justifies upholding inconsistent verdicts under the theory that: while the jury clearly made some error, we can’t tell whose favor they erred in, so we just won’t do anything about it. I believe the flowery language is, “it’s impossible to tell whose ox was gored.”
That being the case, can/should a trial attorney in this situation make a motion for a verdict with specific questions, or a voir dire of indidivual jurors in order to determine just what elements they actually believed the state had proven. It seems that some remedy like this should be allowed in order to fully develope a record so that an appeals court CAN decide whose ox has been gored – and not just dodge the issue.
Once again the Supreme Court has to correct the CoA, who was apparently more than happy to let the defendant get off the hook scot-free. Thankfully the Supreme Court was able to see the big picture, and not let this guy go free.
The problem with kicking a case for “inconsistent verdicts,” like the ones in the Mumford case, is that it does not allow for the fact that sometimes, a jury will reach a compromise verdict. On several occasions, I have had juries tell me they found a defendant guilty of some of the charges because they had to negotiate with hold-out jurors, and wanted to return some type of a verdict rather than completely hang on everything. If the jury happens to pick the wrong charge to compromise on, the defendant would have gotten a free walk on everything (like what happened at the CoA level in the Mumford case). What makes it more complicated is that I seriously doubt any trial judge would allow me to explain the consequences of inconsistent verdicts to them, so that they do not wind up with a completely unintended result in the end.