When Is an Inconsistent Verdict Not Inconsistent?
When is a defendant guilty of introduction of contraband into a prison facility, but not guilty of possession of the same contraband? It is not a trick question, necessarily.
Give up?
This query is an example of the riddle commonly known as an inconsistent verdict. The answer appears to be, “When the jury says so.”
More puzzling than the initial inquiry is the case law which has developed attempting to clarify the riddle of inconsistent verdicts. As if the concept is not confusing enough, Florida courts have elected to categorize inconsistent verdicts as either permissible or impermissible. Thus, rather than providing simple guidance on the issue, the relevant appellate opinions have surrounded the concept of inconsistent verdicts like the proverbial enigma wrapped around the riddle.
This article will discuss the different types of inconsistent verdicts, the justification for permitting inconsistent verdicts, and possible solutions for clarifying the legal concept of inconsistent verdicts. While Florida courts have sought to develop a logical framework for dealing with inconsistent verdicts, the actual results have been. . . well. . . inconsistent.
First, what is an inconsistent verdict? An inconsistent verdict defies logic. acquitting a defendant on one count, but convicting on a second count which is factually and/or legally interconnected to the first, a jury returns an inconsistent verdict.1 For example, in State v. Connelly, 748 So. 2d 248, 249 (Fla. 1999), the jury convicted the defendant of introducing contraband upon the grounds of a county detention facility, but acquitted him on the count of possession of the same contraband. Logically, this verdict appears improper. If the defendant brought cannabis into the prison, he must have also had it in his possession. Despite this obvious inconsistency, such verdicts are routinely upheld.2
In fact, the majority of states follow the federal rule which allows inconsistent verdicts without distinction.3 Justice Holmes, in Dunn v. United States, 284 U.S. 390 (1932), wrote for the U. S. Supreme Court on this topic almost 70 years ago.
Consistency in the verdict is not necessary.
The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.4
Florida courts, however, have adopted the minority view which distinguishes between “true” inconsistent verdicts and, apparently, “not so true” inconsistent verdicts.5 Ignoring the admonition from Justice Holmes that verdicts should not be overturned based on mere speculation or even inquiry into the reasoning behind the inconsistent verdict, Florida decisions have created a distinction without a difference in reference to inconsistent verdicts.
While recognizing that inconsistent verdicts can be the proper result of jury lenity,6 Florida courts created an exception to the general rule allowing inconsistent verdicts to stand. As defined in the State v. Powell, 674 So. 2d 731, 733 (Fla. 1996), decision, “[a] ‘true’ inconsistent verdict occurs when verdicts against one defendant on legally interlocking charges are truly inconsistent.” Such verdicts are permissible.
This circuitous logic seems the typical result of lawyers thinking too much of themselves. It is unclear why errors in logic should be acceptable as applied to factual circumstances, while similar errors in the context of the law would be impermissible.
Justice Anstead’s opinion in Gonzalez v. State, 440 So. 2d 514(Fla. 4th DCA 1983),is commonly cited as the origin of this type of “true” inconsistent verdict. Yet, even Justice Anstead, in his Gonzalez opinion, conceded the Fourth District’s tendency to agree with the majority view permitting inconsistent verdicts.7
Echoing Justice Holmes opinion in Dunn, Justice Anstead indicated that, “[S]ince juries have the inherent authority to acquit a defendant of all or any of the charges, it is impossible to determine whether verdicts convicting a defendant of some charges and acquitting him of others are ‘truly’ inconsistent.”8 To hold otherwise allows a court to speculate as to the process involved in the jurors’ deliberation. If such speculation is prohibited with regard to some subset of inconsistent verdicts, it should equally prevent unfounded guesswork regarding any inconsistencies in all verdicts.
Nevertheless, Florida courts currently refuse to uphold “true” inconsistent verdicts, defined as “those in which an acquittal on one count negates a necessary element for conviction on another count.”9 In actual practice, this type of “true” inconsistency has occurred in only limited circumstances. Cases reversing a conviction as being “truly” inconsistent deal with refusals of the jury to convict on a felony, which is an essential element of another count being tried.10
For example, in Redondo v. State, 403 So. 2d 954 (Fla. 1981), the defendant was charged with one count of aggravated battery and one count of unlawful possession of a firearm while engaged in the commission of a felony.11 As to the aggravated battery charge, the jury found the defendant guilty of the lesser included misdemeanor offense of simple battery.12 However, the jury also found the defendant guilty as charged of possession of a firearm during the commission of a felony.13
Ultimately, the Florida Supreme Court determined the Redondo verdict was impermissibly inconsistent. Because the existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony, the conviction for the lesser included misdemeanor of simple battery negated an essential element of the possession charge.14 Thus, the “truly” inconsistent verdict was overturned.
The sole explanation given for carving out this exception to the general rule permitting inconsistent verdicts concerns the possibility of a wrongful conviction. The Powell decision explained, “[a]n exception to the general rule is warranted when the verdicts against a single defendant are truly inconsistent because the possibility of a wrongful conviction in such cases outweighs the rationale for allowing verdicts to stand.”15 Again, this seems to be a distinction without a difference.
Why should a factual inconsistency be treated differently than a legal inconsistency? Both results are illogical. Therefore, both results have an equal possibility of a wrongful conviction. Inconsistency is inconsistency, and only legal minds would be able to see a difference where none “truly” exists.
Furthermore, in determining whether a verdict is “truly” inconsistent, appellate courts continually resort to pure speculation into the thought process of the jurors. The need for such speculation illustrates the impropriety of allowing an exception for any type of inconsistent verdicts.
In McGee v. State, 687 So. 2d 22 (Fla. 5th DCA 1987), the defendant was convicted of aggravated assault on a law enforcement officer and resisting arrest without violence.16 The appellate court, in upholding this seemingly inconsistent verdict, referred to the possibility that “the jury could have determined that the act of resistance occurred either before or after the [aggravated assault].”17
Again, in Naumowicz v. State, 562 So. 2d 710 (Fla. 1st DCA 1990), the defendant was charged with two counts of DUI manslaughter for the death of a passenger in her car and the death of the driver of the other car involved in the accident. The jury acquitted the defendant on the charge involving the other driver, but convicted on the charge involving the passenger. The appellate court found no impermissible inconsistency.18 As a matter of pure speculation, the First District commented that the acquittal could have been a jury pardon rather than a finding of no causation, as suggested by the defendant.19
This type of pure speculation into the deliberations of a jury should not be permitted.
It is a fundamental tenet of our legal system that lay people, in the capacity as jurors, be permitted to resolve our legal disputes. Inherent in this system is the potential for mistake, misunderstanding, and even jury pardons in the face of contradictory evidence. It is illogical to allow mistakes in fact, but not mistakes in the law, under these circumstances. Moreover, it is legal arrogance to attempt to distinguish inconsistent verdicts in this manner.
The simple solution would be to adopt the majority federal view allowing all inconsistent verdicts to stand without exception. But, for those who decry the “simple solution,” an alternative exists.
Fortunately, Judge Harris, concurring specially in Cuevas v. State, 741 So. 2d 1234 (Fla. 5th DCA 1999), provides an alternate plan. Judge Harris suggests a jury instruction to help clarify the confusion which arises when the jury is instructed on legally interlocking charges. The proposed jury instruction would explain the concept of legally interlocking charges to the jury. Jurors would be told that, in order to convict on the compound felony, they would first need to find that the predicate offense was proved beyond a reasonable doubt.20
For instance, for a felony murder charge with robbery as the predicate offense, the jury would have to first determine that the robbery had been proved beyond a reasonable doubt before it could properly convict the defendant of felony murder. As Judge Harris describes, the instruction would be “similar to, but in the reverse direction of, the instruction on lesser included offenses.”21 With the adoption of such an instruction, unintended jury pardons might well be eliminated without negatively affecting the jury’s general pardon power.22
In such situations, the jury might also be better informed without the misleading general instruction which states that “a finding of guilty or not guilty as to one count must not affect your verdict as to the other crimes charged.”23 Inconsistent verdicts on legally interlocking charges are not surprising in the face of such an illogical instruction. Rather than resorting to reversal when a “truly” inconsistent verdict results, eliminating this instruction alone in legally interlocking cases might clear up the confusion that a jury must face upon being so instructed.
Thus, in conclusion, simple solutions exist for dealing with the conundrum of inconsistent verdicts. Additional judicial labor should not be expended in the event of this type of result. As with factually inconsistent verdicts, the innate power of a jury to pardon a criminal defendant should not be hampered by making a legal distinction for interlocking charges. If jurors are to understand the law, it is up to the lawmakers to explain it coherently to them. Otherwise, neither advocates nor the judiciary should interfere with a deliberation process which allows juries such leeway.
1 See State v. Connelly, 748 So. 2d 248, 252 (Fla. 1999), citing Fayson v. State, 698 So. 2d 827 (Fla. 1997); State v. Powell, 674 So. 2d 731 (Fla. 1996); Eaton v. State, 438 So. 2d 822 (Fla. 1983); Redondo v. State, 403 So. 2d 954 (Fla. 1981); Mahaun v. State, 377 So. 2d 1158 (Fla. 1979); and Goodwin v. State, 157 Fla. 751, 26 So. 2d 898 (1946).
2 See, e.g., Connelly, 748 So. 2d 248; Fayson, 698 So. 2d 825 (held that jury’s rejection of aggravating factor of battery to find defendant guilty of burglary as lesser included offense of charge of burglary of dwelling with battery was not legally inconsistent with conviction on charge of aggravated battery); and Gonzalez v. State, 440 So. 2d 514 (Fla. 4th D.C.A. 1983) (convicting defendant of robbery with a firearm while acquitting defendant of possession of firearm during commission of felony did not require reversal).
3 See Gonzalez, 440 So. 2d 514, 515, citing Dunn v. United States, 284 U.S. 390 (1932).
4 See Dunn, 284 U.S. 390, quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925).
5 See Gonzalez,440 So. 2d 514.
6 See Eaton, 438 So. 2d at 823.
7 See Gonzalez, 440 So. 2d at 516.
8 See id. at 516.
9 See id. at 515.
10 See, e.g., Redondo, 403 So. 2d 954 (defendant could not be convicted of unlawful possession of a firearm during a commission of felony where the jury failed to find the defendant guilty of any felony); Mahaun, 377 So. 2d 1158 (verdict of guilty as to felony murder set aside where jury failed to find defendant guilty of the underlying felony).
11 See Redondo, 403 So. 2d at 955.
12 See id. at 955.
13 See id. at 955.
14 See id. at 956.
15 See Powell, 674 So. 2d 731, 732–733.
16 See McGee v. State, 687 So. 2d 22 (Fla. 5th D.C.A. 1997).
17 See McGee, 687 So. 2d 22, 24 (emphasis added).
18 See Naumowicz v. State, 562 So. 2d 710 (Fla. 1st D.C.A. 1990).
19 See Naumowicz, 562 So. 2d 710, 713.
20 See Cuevas, 741 So. 2d 1234, 1240.
21 See id. at 1240.
22 See id.
23 See id.
Kimberly Nolen Hopkins is a board-certified appellate lawyer with the Office of the Attorney General, Capital Collateral Division, State of Florida. Ms. Hopkins received her B.A. in international affairs, cum laude, and her J.D. degree from Florida State University. Her current practice focuses on capital appeals.
This column is submitted on behalf of the Criminal Law Section, Harvey J. Sepler, chair, and Randy E. Merrill, editor.
