Hemming v. State

229 A.3d 825, 469 Md. 219

• Court: Court of Appeals of Maryland
• Decided: June 26, 2020
• Docket: 48/19
• Status: Published

Opinion

Jonathan Hemming v. State of Maryland, No. 48, September Term, 2019. Opinion by Greene, J.

CRIMINAL LAW — JOINT OR SEPARATE TRIAL OF SEPARATE CHARGES — BIFURCATION

The Court of Appeals held, as a matter of law, that the trial court did not have discretion under Maryland Rule 4-253(c) to bifurcate the possession of a regulated firearm by a prohibited person counts from the remaining counts of the indictment—with the counts being decided by different factfinders within a single trial.

CRIMINAL LAW — JOINT OR SEPARATE TRIAL OF SEPARATE CHARGES — BIFURCATION

The Court of Appeals held that a trial court has the discretionary authority under Rule 4-253(c) to bifurcate possession of a regulated firearm counts, from other counts, into a singular two- phased trial in which the jury first hears evidence relating to the other charges, deliberates as to the defendant’s guilt, and then hears evidence pertaining to the possession of a regulated firearm by a prohibited person counts and determines a defendant’s guilt as to those charges.

CRIMINAL LAW — JOINT OR SEPARATE TRIAL OF SEPARATE CHARGES — BIFURCATION

The Court of Appeals held that the trial court did not abuse its discretion in denying Defendant’s motion to bifurcate counts in a hybrid judge/jury trial proceeding, because the court did not maintain the discretion under Rule 4-253(c) to permit the procedure. Circuit Court for Montgomery County Case No. 129658-C IN THE COURT OF APPEALS Argued: February 7, 2020 OF MARYLAND

No. 48

September Term, 2019

______________________________________

JONATHAN HEMMING

v. STATE OF MARYLAND

McDonald Watts Hotten Getty Booth, Biran, Greene, Clayton, Jr. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Greene, J. ______________________________________

Filed: June 26, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-10-23 15:57-04:00

Suzanne C. Johnson, Clerk In the instant appeal, we are asked to review the trial court’s denial of Petitioner

Jonathan Hemming’s motion to bifurcate two counts of possession of a regulated firearm

by a prohibited person from the remaining counts in an indictment. This case presents an

opportunity for the Court to consider a unique procedural occurrence, previously examined

by this Court in Galloway v. State, where a trial judge bifurcates the possession of a

regulated firearm by a prohibited person charges from the remaining charges and

determines a defendant’s guilt as to the firearm charges. 371 Md. 379, 383, 412, 809 A.2d

653, 656 (2002). This results in a hybrid judge/jury trial in which the judge determines the

defendant’s guilt with respect to the charge of possession of a regulated firearm by a

prohibited person and the jury determines guilt as to the remaining charges (the “bifurcated

hybrid trial procedure”). As represented by Mr. Hemming, the procedure would essentially

encompass a single trial split between the two factfinders. Our primary inquiry towards

this end is whether the relevant Maryland Rule permits this procedure. For the reasons

stated below, we hold that the bifurcated hybrid trial procedure split between two

factfinders is not permitted under Maryland Rule 4-253(c) and is inconsistent with our

holding in Carter v. State, 374 Md. 693, 824 A.2d 123 (2003). Further, we approve of the

Joshua-style bifurcated criminal jury trial, under which the bifurcation of possession of a

regulated firearm by a prohibited person counts from other charges is permitted, if a

defendant’s guilt as to all of the charges is determined by the same factfinder. See United

States v. Joshua, 976 F.2d 844 (3d Cir. 1992). FACTUAL AND PROCEDURAL BACKGROUND

In 2016, investigators from the Montgomery County Police Department’s Special

Investigations Division (“SID”) wanted to speak with Mr. Hemming concerning an

ongoing investigation.1 At the time, Mr. Hemming had an open warrant stemming from

his failure to appear before the District Court of Maryland for a drug possession offense.

On May 18, 2016, based on the open warrant, several SID officers began surveilling

Mr. Hemming at his home in Gaithersburg by setting up a perimeter around the residence.

The SID officers observed Mr. Hemming exit his home with a female companion, who was

later identified as his wife. The pair entered a gray Honda Civic and left the residence with

the SID officers in tow. As later testified to by Sergeant Bullock, the SID “case agent”

instructed the officers to perform a “soft arrest” on Mr. Hemming.2

The SID officers followed Mr. Hemming from his residence to a commercial

property located on Comprint Court off of Shady Grove Road in Montgomery County. On

1 The SID officers who eventually made contact with Mr. Hemming are Sergeant Charles Bullock, and Detectives Don Oaks and Volpe. Detective Volpe’s first name is not contained within the record. As recognized by the Court of Special Appeals, his name was incorrectly transcribed as “Bolpe” throughout the second volume of trial transcripts.

According to Sergeant Bullock, the SID unit is a unique unit that only becomes involved in certain cases when its assistance is required by detectives of its own division, the major crimes division, or police from another jurisdiction. 2 Sergeant Bullock contrasted a “soft arrest” from a “hard block” or “hard takedown” style arrest. He indicated that a soft takedown is one in which police make contact with a suspect, inform him of the arrest warrant, converse with the suspect, and attempt to get the suspect to surrender peacefully. Whereas, under the “hard” approach, SID officers “block all sides of the car[,]” command the subjects inside the vehicle to exit, and “put them on the ground and effect the arrest.”

-2- Comprint Court, Mr. Hemming parked the vehicle “face-in” in front of an office building.

He and his wife exited the vehicle and entered the building and remained inside for

approximately a half an hour to forty minutes before returning to the vehicle. That day,

Sergeant Bullock was accompanied by eight other plainclothes SID officers. Each of the

officers wore outer carrier vests, neck badges, and arm bands indicating that they were law

enforcement officers. The SID officers also wore two or more forms of identification

indicating that they were, in fact, police officers.

Detective Volpe parked his vehicle, a pickup truck, in the space directly behind the

Honda Civic in which Mr. Hemming and his wife were traveling. The SID officers then

observed Mr. Hemming and his wife returning to the vehicle, with Mr. Hemming entering

the driver side and his wife entering the passenger side of the vehicle. Within seconds of

the couple returning to the vehicle, the SID officers performed the “soft arrest” technique

detailed by Sergeant Bullock. To initiate the stop, the SID officers turned on the headlights

of their vehicles and momentarily sounded a siren to indicate a police presence. Detective

Volpe then backed his pickup truck into the rear bumper of the Honda, blocking the vehicle

into the parking space.

Thereafter, Sergeant Bullock and Detective Oaks approached the driver’s side of

Mr. Hemming’s vehicle on foot, with Detective Oaks in the lead and Sergeant Bullock in

tow. Detective Oaks approached Mr. Hemming and informed Mr. Hemming that he was a

police officer, the officers had a warrant for Mr. Hemming’s arrest, and they desired to

speak with Mr. Hemming. According to the officers, Mr. Hemming initially seemed

compliant. Mr. Hemming attempted to get out of the vehicle, and Detective Oaks moved

-3- away from the driver’s side door of the car to allow Mr. Hemming to exit. Suddenly, as

Mr. Hemming was exiting, he got back in the vehicle and attempted to close the driver’s

side door.

In response, Detective Oaks put himself between the vehicle and its driver’s side

door to block Mr. Hemming from closing it. Detective Oaks began struggling with Mr.

Hemming and attempted to remove him from the vehicle. Thereafter, Sergeant Bullock

entered the rear passenger seat of the vehicle and attempted to assist Detective Oaks in

gaining control of Mr. Hemming.

During the fracas, Detective Oaks noted that Mr. Hemming retrieved a “black

cylindrical object” from inside the vehicle and held it in his left hand. Unbeknownst to

Detective Oaks at the time, the object Mr. Hemming was holding was actually an

improvised firearm colloquially referred to as a “zip gun.”3 While the improvised firearm

3 A “zip gun” is “the name applied to a single-shot, crude, home-made firearm” that is generally “unreliable, and usually more dangerous to the shooter than to his intended victim.” Bruce Barak Koffler, Zip Guns and Crude Conversions—Identifying Characteristics and Problems, 61 J. Crim. L. Criminology & Police Sci. 520, 520 (1969). As later testified to by the State’s firearm expert, Ronald K. Davis—an officer with the Bureau of Alcohol, Tobacco, Firearms and Explosives—the improvised firearm that Mr. Hemming held was “an improvised firearm that’s designed to fire [twelve] gauge ammunition[.]” He also testified that the firearm was constructed from a length of pipe with a “standard pipe plug” fashioned onto the end of it. The pipe plug held the shotgun shell and had a hole drilled through its center, which the shooter would use to ignite the primer on the shell by striking it with a thin metal object. He testified that he had test fired the improvised firearm and it was operable.

-4- was pointed towards Detective Oaks’ head, Mr. Hemming began striking the bottom of it

with a long thin metal object.4

As Detective Oaks and Sergeant Bullock attempted to gain control over Mr.

Hemming, Detective Volpe removed Mr. Hemming’s wife from the vehicle. He then

entered the vehicle, through its passenger side, to assist the two other officers with Mr.

Hemming. While assisting Detective Oaks and Sergeant Bullock, Detective Volpe noticed

a metal tube in Mr. Hemming’s left hand and “a 12-penny nail” in his right hand that Mr.

Hemming was attempting to insert into the bottom of the pipe. Detective Volpe warned

his fellow officers of the device.

After briefly struggling with Mr. Hemming, Detective Oaks beckoned his

colleagues to use a taser gun to subdue Mr. Hemming. As a result, Detective Volpe tased

Mr. Hemming. After tasing Mr. Hemming, the officers were able to remove Mr. Hemming

from the vehicle. Despite this, Mr. Hemming continued to struggle with the officers as

they attempted to handcuff him. Nonetheless, the officers were eventually able to gain

control of Mr. Hemming, handcuff him, and effectuate an arrest. Upon Mr. Hemming’s

arrest, the officers uncovered a second improvised firearm in Mr. Hemming’s rear pant

pocket.5 The officers also recovered several twelve-gauge 00 “buckshot” shells from the

4 Detective Oaks later testified that Mr. Hemming struck the improvised firearm with a screwdriver or metal rod. The State’s expert witness on firearms later identified the object that Mr. Hemming used to strike the bottom of the zipgun was a jeweler’s screwdriver. 5 Mr. Davis testified that the improvised firearm recovered from Mr. Hemming’s rear pant pocket was not a “firearm” because “it was missing a critical part, the barrel.”

-5- vehicle and one from the improvised firearm Mr. Hemming had brandished during the

struggle with the SID officers.6

Subsequently, Mr. Hemming was charged by indictment with two counts of

attempted first-degree murder (counts one and two), two counts of attempted second degree

murder (counts three and four),7 two counts of first-degree assault (counts five and six),

two counts of use of a firearm in the commission of a crime of violence (counts seven and

eight), possession of a firearm after having been convicted of a felony drug crime (count

nine), possession of ammunition by a person who is prohibited from possessing a regulated

firearm (count ten), two counts of possession of a regulated firearm after having been

convicted of a crime of violence (counts eleven and twelve), and resisting arrest (count

thirteen). On February 5, 2018, the Circuit Court for Montgomery Count held a trial in the

matter.

At the start of trial, Mr. Hemming moved to bifurcate counts nine through twelve,

the possession of a regulated firearm by a prohibited person and ammunition counts,8 from

the remaining counts. He suggested that counts one through eight and thirteen be decided

by a jury and that the trial judge determine his guilt as to the possession of regulated firearm

6 Mr. Davis also testified that twelve gauge 00 shells contain nine thirty-three caliber pellets and are generally used for big game hunting but are occasionally used as an anti-personnel load in the law enforcement context. 7 Mr. Hemming was charged with two counts of attempted first-degree murder and first- degree assault, in reference to both Sergeant Bullock and Detective Oaks as victims. 8 For simplicity’s sake, we hereinafter refer to these counts as “possession of a regulated firearm by a prohibited person” without specific reference to the count concerning the possession of ammunition. -6- by a prohibited person counts in a singular hybrid judge/jury trial. Mr. Hemming’s counsel

indicated that Mr. Hemming was willing to waive his right to a jury trial on the possession

of a regulated firearm by a prohibited person counts. Mr. Hemming urged the court to

bifurcate the counts based on the premise that bifurcation would ameliorate any potential

prejudice that may result from the jury hearing evidence of his prior conviction or a

stipulation concerning his disqualification from possessing regulated firearms.

In response, the State argued that bifurcation of the charges was inappropriate based

on the potentiality of legally inconsistent verdicts between the jury and judge. In particular,

the State argued that, if the jury acquitted Mr. Hemming on counts seven and eight, i.e.,

use of a firearm in the commission of a crime of violence, and the trial judge found Mr.

Hemming guilty on counts nine, eleven, and twelve, the trial judge’s decision could be

overturned on appeal as an inconsistent verdict, due to the prohibition against examining

the jury’s reasoning underlying its verdict. The State indicated that the possibility of

inconsistent verdicts was compounded by the fact that the case involved two improvised

firearms. Mistakenly, the State argued that the operability of the firearm may become an

issue and that counts nine, eleven, and twelve required operability as an element.9

After reviewing this Court’s decision in Galloway v. State, the trial court denied Mr.

Hemming’s motion to bifurcate. The trial judge commented that he found “no authority”

under Rule 4-253(c) to bifurcate multiple counts in a singular hybrid judge/jury trial and

9 This assertion was made in error, because we have held that conviction under Public Safety Article (“PS”) § 5-133(c) does not require an operable firearm. Moore v. State, 424 Md. 118, 122, 34 A.3d 513, 515 (2011). -7- denied Mr. Hemming’s motion “in light of the potential of inconsistent verdicts that [has]

been represented by the State[.]” The trial court contemplated that utilizing a stipulation,

under Carter v. State, 374 Md. 693, 824 A.2d 123 (2003), that indicated Mr. Hemming was

prohibited from possessing regulated firearms would be “as least prejudicial as possible.”

After the court denied Mr. Hemming’s motion, the State and Mr. Hemming agreed

to stipulate that Mr. Hemming was a “prohibited person.” Based on events occurring after

the trial judge’s denial of Mr. Hemming’s motion to bifurcate, the stipulation informed the

jury that “the defendant was previously convicted of a crime that disqualifies him from

possessing a regulated firearm.” Mr. Hemming’s counsel noted that, although ordinarily,

he would only be willing to stipulate that a defendant was a prohibited person, he was

willing to advise the jury that Mr. Hemming had previously been convicted of a

disqualifying crime. This is so because he had indicated that Mr. Hemming had previously

been convicted of a crime during his opening statement (having stated in opening remarks

that “[Mr. Hemming] has some prior records. He’s going to tell you about that. He’s not

hiding anything.”).

At trial, Mr. Hemming testified that the building off of Comprint Court that he and

his wife visited was a neurologist’s office. He stated that his wife had previously been

diagnosed with a neurological condition. According to Mr. Hemming, that day, if his wife

received a negative prognosis, they had planned to drive to another location and commit

suicide. He testified that he was in possession of two improvised firearms, because, under

their agreed suicide pact, they would each use one of the weapons to end their lives. In

contrast to Mr. Hemming’s testimony, Detective Dimitri Ruvin, an investigator who

-8- requested SID’s involvement, testified differently as to Mr. Hemming’s reason for

possessing the improvised firearms. Detective Ruvin testified that, after his arrest, Mr.

Hemming informed him that he possessed the devices because “some people [were] not

real happy with [him].”

The jury found Mr. Hemming guilty of attempted first-degree murder of Detective

Oaks, first-degree assault on Sergeant Bullock, two counts of use of a firearm in the

commission of a crime, possession of a regulated firearm by a prohibited person,

possession of ammunition by a person who is prohibited from possessing a regulated

firearm, and resisting arrest. The court sentenced Mr. Hemming to life in prison, plus an

additional forty years imprisonment.

Mr. Hemming then appealed the circuit court’s judgment to the Court of Special

Appeals. Mr. Hemming presented three issues for the intermediate appellate court’s

review, one in which Mr. Hemming challenged the sufficiency of the evidence

undergirding his convictions, one concerning a sentencing issue, and one relevant to the

issue presently before us:

Did the circuit court abuse its discretion in refusing to bifurcate the counts charging possession of a regulated firearm by a disqualified person and possession of ammunition by a person who is disqualified from possessing a regulated firearm, with those counts being tried by the court, and the remaining counts being tried by the jury in a single trial?

Hemming v. State, 624, SEPT.TERM, 2018, 2019 WL 2881019, at *1 (Md. Ct. Spec. App.

July 3, 2019), cert. granted, 466 Md. 215, 217 A.3d 1131 (2019).

The Court of Special Appeals did not determine, however, whether a trial judge in

a criminal case has authority to apply the hybrid judge/jury trial procedure because it

-9- concluded that the trial judge properly exercised his discretion in denying Mr. Hemming’s

motion to bifurcate. Id. at *5 (“We are not compelled to decide whether a circuit court

judge has the discretion to bifurcate the decision-making function in a single trial procedure

as we conclude that if the trial judge had that discretion here, he properly exercised it to

deny Hemming’s bifurcation request.”). Primarily, the intermediate appellate court noted

that the trial judge properly exercised his discretion in denying Mr. Hemming’s motion to

bifurcate based on the possibility of inconsistent verdicts. Id. at *6. Accordingly, the Court

of Special Appeals affirmed the circuit court’s judgment, vacated the sentence on count

seven and remanded that count for re-sentencing based on an issue irrelevant to the instant

appeal.

Mr. Hemming then petitioned this Court for a writ of certiorari, which we granted

on October 9, 2019. Hemming v. State, 466 Md. 215, 217 A.3d 1131 (2019).

Galloway v. State

In Galloway v. State, the trial court utilized the bifurcation procedure that Mr.

Hemming urges this Court to now expressly authorize. 371 Md. 379, 383, 809 A.2d 653,

655 (2002). In that case, Mr. Galloway was charged with several counts including

“attempted murder, assault, reckless endangerment, use of a handgun in the commission of

a felony or crime of violence, carrying a handgun (counts 1 through 7) and possession of a

firearm after having been convicted previously of a crime (counts 8 and 9).” Id. at 382,

809 A.2d at 655. Mr. Galloway requested that the jury determine his guilt as to counts one

through seven and that, after the jury returned its verdict on counts one through seven, the

trial judge determine his guilt as to counts eight and nine. Id. at 383–84, 809 A.2d at 656.

- 10 - After deliberating, the jury found Mr. Galloway not guilty on counts one through seven.

Id. at 384, 809 A.2d at 656. The next day, the trial judge found Mr. Galloway guilty as to

counts eight and nine—the possession of a regulated firearm by a prohibited person counts.

Id.

On appeal, we were asked to determine whether, based on principles of Double

Jeopardy, the inconsistent verdicts rendered by the judge and jury were improper. Id. at

384, 809 A.2d at 656–57. The procedure utilized in Galloway was identified as a “unified

proceeding with a hybrid decision, part jury trial and part court trial.” Id. at 388, 809 A.2d

at 659. Ultimately, we held that the inconsistency between the trial court and jury’s

verdicts was impermissible and reversed the circuit court’s judgment. Id. at 416–17, 809

A.2d at 676. Because of the unique procedural posture of Galloway, our resolution of the

inconsistent verdict issue did not require us to determine whether the bifurcated hybrid

judge/jury trial procedure is authorized by Maryland law. Id.

Although we did not specifically analyze the bifurcation of possession of a regulated

firearm by a prohibited person charges in a hybridized judge/jury trial in Galloway, this

issue permeated the Court’s discussion. The Majority, in assessing whether the procedure

is authorized within the State, commented,

[t]he procedure utilized by the circuit court, i.e., the bifurcation of the decision making function between a jury and a judge in respect to different counts of a single indictment in a single trial is not expressly authorized in Maryland, or anywhere else as far as our research has revealed.

Id. at 385, 809 A.2d at 657. Moreover, the Galloway Majority left open the question of

whether the hybrid judge/jury trial procedure is permitted under Maryland law:

- 11 - We note that the present case is an instance of a hybrid jury/bench trial on the merits. In an appropriate case we might necessarily be faced with an initial question of whether a trial judge has the discretion to grant the single trial procedure used in the instant case. We shall not resolve that issue in this case, as the case can be fully resolved on other important issues. Our declining to address this specific bifurcation issue, should not be construed as any approval or disapproval of the procedure.

Id. at 396–97, 809 A.2d at 664 (footnotes omitted).

The entire Court, however, was not in agreement. The Concurring Opinion in

Galloway contended that the bifurcated hybrid trial procedure is one method to limit the

potential prejudice a defendant experiences based on the introduction of evidence

concerning a prior disqualifying conviction:

Because of the potential for prejudice, on motion or by agreement, the court may sever the CIP [criminal-in-possession] count for later trial, which could be before a different jury or, if the defendant waives a jury, before a judge. To avoid separate trials, which could require the empaneling of a new jury and a repetition of much of the evidence presented to the first jury, the court may take the intermediate step, as was done in United States v. Joshua, 976 F.2d 844 (3d Cir.1992), of bifurcating the CIP charge—allowing the jury to consider only the current substantive charges first, and then, after it renders a verdict on those charges, having that same jury hear the additional evidence and then consider the CIP charge . . . . As the Joshua court pointed out, not everyone agrees that the bifurcation approach is a good one, even where the jury ends up hearing all of the charges.

Id. at 418, 809 A.2d at 677 (Wilner, J., concurring). Judge Wilner also noted that such

prejudice may be overcome where a defendant enters a stipulation as to his or her

prohibited status. Id. Judge Wilner also left open the possibility of dual factfinders, as

suggested by Mr. Hemming in this case. Id. (“Presumably, the bifurcated CIP charge

could later be heard by the judge, provided the defendant agrees to waive his right to have

the jury consider it.”).

- 12 - The Dissenting Opinion specifically endorsed the procedure and commented that

the Court should “hold that implementation of the simultaneous-trial procedure, although

not traditional, strikes an appropriate balance between the twin concerns of prejudicial

joinder and judicial economy, and is within the sound discretion of the trial court to grant.”

Id. at 423–24, 809 A.2d at 680 (Harrell, J., dissenting).

In Galloway, this Court invited the Standing Committee on Rules of Practice and

Procedure (the “Rules Committee”) to examine and study the bifurcated hybrid trial

procedure, make a recommendation, and to consider any necessary modification to the

associated Maryland Rules. Id. at 397 n.14, 809 A.2d at 664 n.14 (“[W]e shall notify [the

Rules Committee] of this issue in order that the Rules Committee may study it, and if it

deems appropriate, make recommendations to the Court. In that process there will be

adequate opportunity for concerned entities to participate and make their views known in

the study process.”). Since Galloway, this Court has not considered a case under a similar

procedural posture. Based on the Court’s comments in Galloway, the Rules Committee

later considered proposing amendments to this Court concerning the procedure but

ultimately declined to do so. See infra at 20–22.

STANDARD OF REVIEW

We have previously determined that, in terms of Rule 4-253, a trial court’s decision

to sever or join the trials of multiple criminal defendants or multiple counts is ordinarily

committed to the sound discretion of the trial judge and is reviewed for abuse of discretion.

State v. Hines, 450 Md. 352, 366, 148 A.3d 1247, 1255 (2016); Galloway, 371 Md. at 395,

809 A.2d at 663 (“[T]he decision to join or sever charges ordinarily lies within the sound

- 13 - discretion of the trial court.”); McKnight v. State, 280 Md. 604, 608, 375 A.2d 551, 554

(1977). “[O]rdinarily, where only one defendant is involved, the judge may order two or

more offenses, whether felonies or misdemeanors, or any combination of them, [to] be tried

together if the offenses are of the same or similar character.” Frazier v. State, 318 Md.

597, 607, 569 A.2d 684, 689 (1990) (citing Graves v. State, 298 Md. 542, 544, 471 A.2d

701, 702 (1984)).

To guard against potential prejudice in the trial, as a matter of law, “[i]f it appears

that any party will be prejudiced by the joinder for trial of counts, charging documents, or

defendants, the court may, on its own initiative or on motion of any party, order separate

trials of counts, charging documents, or defendants, or grant any other relief as justice

requires.” Frazier, 318 Md. at 607, 569 A.2d at 689. Conversely, at a jury trial of a

defendant charged with similar but unrelated offenses, he or she is entitled to a severance

where the defendant establishes that the evidence as to each individual offense would not

be mutually admissible at separate trials of the offenses. Id. at 608, 569 A.2d at 690.

Under Rule 4-253(c), a trial judge may remedy prejudicial joinder, in addition to

severing counts, by “grant[ing] any other relief as justice requires.” Accordingly, when we

review a trial court’s decision to sever, based upon allegations of prejudicial joinder, for

abuse of discretion under Rule 4-253(c), we implicitly recognize that the decision whether

or not to permit bifurcation of counts would be ordinarily reserved to the trial court’s

discretion. See Galloway, 371 Md. at 422–23, 809 A.2d at 679 (Harrell, J. dissenting).

In Carter v. State, 374 Md. 693, 709, 824 A.2d 123, 133 (2003), we held that the

defendant was not entitled to a severance of the possession of a regulated firearm by one

- 14 - previously convicted of a crime of violence charge from the remaining charges because the

bases of the crimes were one and the same. As to the propriety of the bifurcation of the

criminal proceeding in Carter, we held that in a jury trial, the trial judge does not have the

discretion to allow bifurcation of the elements of the possession of a regulated firearm by

a prohibited person charge to prevent the jury from considering an element of that charge,

even if the defendant requests that the trial judge decide the felony element and the jury

decide the possession element. 374 Md. at 709–15, 824 A.2d at 133–36. We explained

that the jury is entitled to know the criminality of the defendant’s alleged conduct and the

State should be allowed to present evidence of all elements of the offense of possession of

a regulated firearm by a person previously convicted of a disqualifying crime to the jury.

Id. Moreover, we held that when the defendant requests, in a possession of a regulated

firearm by a prohibited person case, to stipulate or admit he was convicted of a

disqualifying crime, the trial court must accept the stipulation or admission and the name

or nature of the previous conviction should not be disclosed to the jury. Id. at 720–21, 824

A.2d at 139–40. The trial judge is directed to inform the jury that the defendant admits the

conviction of a crime for which he or she is prohibited from possessing a regulated firearm

under the law. Id. at 720, 824 A.2d at 140.

We review legal issues de novo. Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72,

854 A.2d 879, 883 (2004) (citing Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609, 612

(2002)). It is well settled that when interpreting the Maryland Rules of Procedure, we apply

that same principle as if we were interpreting a statute or contract. Tate v. State, 459 Md.

- 15 - 587, 608, 187 A.3d 660, 672 (2018) (citing State v. Daughtry, 419 Md. 35, 67, 18 A.3d 60,

46 (2011)).

DISCUSSION

All of the charges filed against Mr. Hemming were closely related and arose from a

singular incident. He did not request the traditional severance of the charges and demand

separate trials. Instead, prior to trial, Mr. Hemming moved to bifurcate count 9 (possession

of a firearm after having been convicted of a felony drug crime), count 10 (possession of

ammunition by a person who is disqualified from possessing a regulated firearm), and

counts 11 and 12 (two counts of possession of a regulated firearm after having been

convicted of a crime of violence) from the remaining counts. Under this procedure, “the

jury would decide the defendant’s guilt or innocence as to counts 1 through 8 and 13, and

the court would decide guilt or innocence on counts 9 through 12, [intending] to avoid the

prejudice that would flow from a stipulation that Mr. Hemming was prohibited from

possessing a regulated firearm because of a disqualifying conviction.” Thus, the question

before this Court is whether the trial judge had discretion under Maryland Rule 4-253(c) to

bifurcate separate counts between the judge and jury in a single trial. We shall hold that

Maryland Rule 4-253(c) does not permit the trial judge to bifurcate separate counts between

the judge and jury for a single trial. The Rule, however, does permit the trial judge to

bifurcate counts between the same fact finder, subject to the sound discretion of the trial

- 16 - judge. Accordingly, the burden rests upon Mr. Hemming to establish that the trial judge’s

denial of the motion to bifurcate was an abuse of discretion.

Under Rule 4-253(c), a Trial Court Does Not Have Discretion to Bifurcate Separate Counts Between Judge and Jury in a Single Hybridized Trial.

The primary issue in the instant appeal is whether a trial judge has the discretion,

under Maryland Rule 4-253(c), to bifurcate the possession of a regulated firearm by a

prohibited person count from the remaining charges—with the counts being decided by

different factfinders within a singular proceeding. Rule 4-253(c) does not expressly

authorize the hybrid bifurcated trial procedure, and no Maryland or federal court has

adopted the procedure. Moreover, permitting the hybrid judge/jury trial would create a

host of potential procedural problems. Therefore, we ultimately conclude that a trial court

does not maintain the discretion, under Rule 4-253(c), to bifurcate possession of a regulated

firearm by a prohibited person counts from other charges—with the former being decided

by the judge and the latter by a jury.

First, we review the statutory framework under the Public Safety Article (“PS”)

concerning the underlying offenses at issue in the instant appeal. PS § 5-133, formerly

Article 27 § 445, restricts certain classes of individuals from possessing regulated firearms.

There are several ways that an individual may be prohibited from possessing regulated

firearms—including prior convictions of a drug crime or crime of violence. See PS § 5-

133(b). Generally, to convict a defendant of possession of a regulated firearm by a

prohibited person, the State must prove that a defendant was previously convicted of a

- 17 - disqualifying crime as an element of the offense. See Carter, 374 Md. at 709–10, 824 A.2d

at 133.

Despite this, a defendant has a “clear and compelling . . . interest in avoiding [the]

introduction of prior crimes evidence.” United States v. Dockery, 955 F.2d 50, 53 (D.C.

Cir. 1992). This interest exists because, “the introduction of evidence of a prior conviction

has the potential for grave mischief because of its tendency to ‘divert[ ] the attention of the

jury from the question of the defendant’s responsibility for the crime charged to the

improper issue of his bad character.’” United States v. Bowie, 142 F.3d 1301, 1305 (D.C.

Cir. 1998) (alterations in original) (quoting United States v. Jones, 67 F.3d 320, 322 (D.C.

Cir. 1995)).

In other words, with the introduction of evidence pertaining to a criminal

defendant’s prior convictions, “[t]he primary concern is that prior crimes evidence

“weigh[s] too much with the jury and ... overpersuade[s] them as to prejudge one with a

bad general record and deny him a fair opportunity to defend against a particular charge.”

Dockery, 955 F.2d at 53. The concern over the potential prejudice a defendant may

experience from the introduction of evidence concerning a prior conviction must be

balanced with the “standard rule that the prosecution is entitled to prove its case by

evidence of its own choice.” Old Chief v. United States, 519 U.S. 172, 186, 117 S. Ct. 644,

653, 136 L.Ed 2d 574 (1997). The joinder of possession of a regulated firearm by a

prohibited person charge with other counts “must be informed by a respect for the special

problems created by the introduction of other crimes evidence, and that it consequently

will behoove prosecutors and trial judges to proceed with caution when situations similar

- 18 - to this one face them in the future.” United States v. Daniels, 770 F.2d 1111, 1118 (D.C.

Cir. 1985). Next, we review the Maryland Rule primarily at issue.

Rule 4-253, titled “Joint or Separate Trials,” permits joint trials of offenses and

defendants:

(a) Joint Trial of Defendants. On motion of a party, the court may order a joint trial for two or more defendants charged in separate charging documents if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

(b) Joint Trial of Offenses. If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court may inquire into the ability of either party to proceed at a joint trial.

Md. Rule 4-253(a)–(b). The question presented in this case, however, centers around the

provision of Rule 4-253(c), which empowers a trial court with the discretionary authority

to remedy prejudice arising from certain types of joinder. The Rule, in pertinent part,

provides,

[i]f it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.

Md. Rule 4-253(c).

Although a trial judge may “order separate trials of counts[,]” the Rule does not

specifically contemplate the bifurcation of counts between two separate finders of fact

- 19 - within a singular trial—our principal concern here. 10 Mr. Hemming contends that the

language of Rule 4-253(c), empowering a court to “grant any other relief as justice

requires” encompasses the bifurcation of counts in a hybrid court/jury trial. In contrast,

the State argues that this Court has only interpreted this language to subsume limiting

instructions or the redaction of evidence. See State v. Hines, 450 Md. 352, 370, 148 A.3d

1247, 1257 (2016). In assessing whether a joinder of counts or defendants was improper,

our primary concern is potential prejudice that may befall a defendant. Id. at 369, 148 A.3d

at 1256. Such an inquiry requires that we utilize a “balancing approach” in which we

consider “the likely prejudice caused by the joinder . . . [and] considerations of economy

and efficiency in judicial administration.” Id. (quoting Frazier, 318 Md. at 608, 569 A.2d

at 689).

In the wake of Galloway, the Rules Committee considered the bifurcation issue.

The minutes of the Rules Committee’s January 9, 2004 meeting (“Rules Committee

Minutes”) reveal that the Rules Committee contemplated modifying Rule 4-252

(concerning mandatory motions in the circuit court) to include subsections (a)(6) which

10 In the sphere of criminal procedure, bifurcation in Maryland has been extremely limited in its application. Rule 4-314 permits, where a defendant pleads not guilty, not criminally responsible by reason of insanity (“NCR”), and elects a jury trial, a trial court to bifurcate the NCR and innocence phases of the trial in a “bifurcated . . . single continuous trial in two stages.” Rule 4-314(b)(1); see also State v. Marsh, 337 Md. 528, 537–38, 654 A.2d 1318, 1322–23 (1995); Treece v. State, 313 Md. 665, 685, 547 A.2d 1054, 1064 (1988). Previously, former Rule 4-343 required the bifurcation of the guilt or innocence and sentencing phases in capital cases. See Bruce v. State, 328 Md. 594, 608, 616 A.2d 392, 399 (1992). In 2013, the General Assembly amended several provisions of the Criminal Law Article repealing the death penalty. Bellard v. State, 452 Md. 467, 472, 157 A.3d 272, 273 (2017). Notably, there is no other Rule of Criminal Procedure that authorizes bifurcation in the context of the case at bar. - 20 - contemplated “[a] request for bifurcation of counts between the jury and the judge” and

subsection (h)(4) which concerned “[b]ifurcation of counts between the jury and the court.”

The following Reporter’s Note accompanied the proposed amendments to Rule 4-252:

The Criminal Subcommittee considered the issue of hybrid jury/bench trials as directed by the Court of Appeals in the case of Galloway v. State, 371 Md. 379 (2002). The Subcommittee recommends changing Rule 4-252 by adding new subsections (a)(6) and (h)(4), which allow the Court to grant a motion to bifurcate the counts in a criminal case, so that some counts are considered by the jury and some by the judge. The Subcommittee is also proposing to add a sentence to the Committee note at the end of the Rule which clarifies that the new subsection allowing bifurcation of the counts does not apply to cases with multiple defendants.

Rules Committee Minutes at 44. Under the proposed changes to Rule, subsection (h)(4)

required that,

[i]f the court grants a motion to bifurcate the counts between the jury and the court, the court shall question the defendant to make sure that the defendant voluntarily waives the right to seek relief later because of inconsistent verdicts between the court and the jury or because the jury is unable to reach a verdict. The court shall enter a written order assigning the appropriate counts to the court and to the jury for decision. If the judge defers the judge’s verdict until the jury verdict comes in, and then the jury is unable to arrive at a verdict, the judge may nonetheless enter a verdict. The judge may return a verdict before the jury does so.

Id. at 43.

The Chair of the Rules Committee suggested that the proposed new language of

Rule 4-252 read as follows: “If the court grants a motion to bifurcate the counts between

the jury and the court, the court shall enter a written order assigning the appropriate counts

to the court and to the jury for a decision[.]” Id. at 45. Nonetheless, the Chair recognized

that an amendment to the Rule was likely unnecessary, given the availability of a

stipulation under Carter:

- 21 - The Chair commented that after Galloway, the Honorable Lynne Battaglia, Judge of the Court of Appeals, had authored an opinion, Carter v. State, 374 Md. 693 (2003), holding that if the defendant has committed a prior crime, such as possession of a firearm, which impacts a later trial on another charge, bifurcation of the charges in the later trial is not necessary. However, the jury is entitled only to know that the defendant’s prior crime was one that prohibited further possession of a firearm, but not all of the details of the prior crime.

Id. at 45.

Several members of the committee, including Judge McAuliffe, expressed concern

over the portion of the amendment that required defendants to waive any right to later

complain of inconsistent verdicts. Id. at 44–45. Other members of the Rules Committee

noted that bifurcation may be unnecessary with the availability of severance. Id. at 46. In

contrast, some members suggested that severance may not be a practical alternative in all

cases. Id. With these concerns established, the Rules Committee ultimately declined to

submit a recommendation to amend Rule 4-252. The Rules Committee remanded the issue

to the “Criminal Subcommittee” for additional review, study, and to make

recommendations regarding the procedure. Id. The Criminal Subcommittee did not

suggest additional modification of the Rule to expressly permit the procedure. Therefore,

the Rules Committee’s reluctance to recommend that the Court of Appeals amend the

Maryland Rules to expressly permit the procedure, coupled with the comments of the

Chairman in light of our opinion in Carter, suggests the Committee did not view that the

adoption of the bifurcated hybrid trial procedure would be necessary or advisable.

Bifurcation of Trial and the Carter Stipulation

- 22 - As Rule 4-253(c) expressly empowers a trial court to sever counts and, according

to Mr. Hemming authorizes bifurcation in a hybrid trial, we must examine the definitions

of “severance” and “bifurcation” to better ascertain the implications of these terms.

Unfortunately, some courts have “blended the issue of severance of one count from

another, with the issue of bifurcation of the elements of a single count.” Carter v. State,

145 Md. App. 195, 221, 802 A.2d 460, 475 (2002), reversed 374 Md. 693, 824 A.2d 123

(2003); see, e.g., United States v. Mangum, 100 F.3d 164, 170–72 (D.C. Cir. 1996)

(discussing severance of counts and bifurcation of elements within a single count and

blending the two distinct concepts). Generally, “bifurcation is the separation of the legal

issues or elements for a cause of action for separate trials, ordinarily by the same jury.”

Jennifer M. Granholm & William J. Richards, Bifurcated Justice: How Trial-Splitting

Devices Defeat the Jury’s Role, 26 U. Tol. L. Rev. 505, 511 (1995). Whereas, severance

involves “the separation of issues or parties for trial by different juries.” Id.

Despite the immediate relative clarity, not all definitions of severance and

bifurcation indicate that they differ in terms of whether the severed or bifurcated counts

are considered by the same factfinder. To this end, Black’s Law Dictionary more broadly

defines the term “bifurcate” as “[t]o separate into two parts, esp. for convenience. Multiple

aspects of litigation, such as discovery, motions, defense, trial and jury deliberations, may

be bifurcated to save time, reduce jury confusion, or achieve other benefits, with or without

the same jury hearing both bifurcated parts.” BIFURCATE, Black’s Law Dictionary (11th

ed. 2019). Similarly, Black’s Law Dictionary defines “severance”, within the context of

criminal procedure, as “[t]he separation of criminal charges or criminal defendants for trial,

- 23 - as when codefendants have conflicting defenses so that prejudice might result to one or

more of them.” SEVERANCE, Black’s Law Dictionary (11th ed. 2019). Based on these

definitions alone, a question remains as to whether the bifurcation of charges between

separate finders of fact is permissible. Thus, we look to federal precedent for guidance in

our interpretation of Rule 4-253(c).

Rule 4-253(c) is patterned after Federal Rule of Criminal Procedure (“FRCP”) 14

and both standards are “merely a restatement of the test applied at common law.”

McKnight v. State, 280 Md. 604, 608, 375 A.2d 551, 554 (1977); see also Simmons v. State,

165 Md. 155, 165–66, 167 A. 60, 64 (1933). Therefore, we shall briefly examine federal

decisions addressing bifurcation under FRCP 14. To support his position, Mr. Hemming

relies on decisions by the United States Courts of Appeals for the Second, Third, and Ninth

Circuits. These cases are generally distinguishable from the question before us in the

instant appeal.

For example, in Joshua, the United States Court of Appeals for the Third Circuit

analyzed an appeal in which the defendant moved to sever a charge of “possession of a

firearm by a convicted felon[,]” and the State acquiesced in his motion.11 976 F.2d at 846.

Although the court denied the defendant’s motion to sever, the court ordered a bifurcated

proceeding under which the jury first heard evidence and deliberated on three substantive

counts, and then heard evidence and deliberated on the possession of a firearm by a

11 We refer to the crime as “possession of a firearm by a convicted felon[,]” because the controlling federal statute differs slightly from its Maryland counterpart. See Joshua, 976 F.2d at 846; 18 U.S.C. §§ 922(g)(1), 924(e).

- 24 - convicted felon count.12 Id. The procedural posture in Joshua is distinct from the one

considered by the Court in Galloway and proposed by Mr. Hemming, because the jury

heard evidence as to all the counts within the indictment and deliberated on them. Unlike

here, the defendant in Joshua argued that the court erred in granting bifurcation and

denying his motion to sever the possession of a firearm by a convicted felon count. Id. at

847.

In rejecting the defendant’s arguments, the Joshua court concluded that “the

procedure adopted by the district court . . . strikes an appropriate balance between the

concern about prejudice to the defendant and considerations of judicial economy.” Id. at

848. The court explained that, under the procedure, “[t]he defendant’s criminal past is not

made known to the jury until after [it has] reached a verdict with respect to the other

charges. At the same time, this procedure is considerably more efficient than conducting

an entire new jury trial on the weapon possession charge at a later date.” Id. Implicitly,

the court suggested that bifurcation of the possession of a regulated firearm by a prohibited

person counts, from remaining charges, is preferable to severance in terms of judicial

economy. Id. Moreover, in that case, the government and defendant agreed to a stipulation

that informed the jury that the defendant was a convicted felon. Id. at 846. We note here

that Judge Wilner, in his concurrence in Galloway, advocated for the possibility of a

Joshua-style bifurcated trial. Galloway, 371 Md. at 419, 809 A.2d at 677 (Wilner J.,

12 The defendant in Joshua was indicted on four counts: armed bank robbery; use of a firearm during a crime of violence; receipt of a firearm with an obliterated serial number; and possession of a firearm by a convicted felon. Joshua, 976 F.2d at 846.

- 25 - concurring). As discussed below, the catchall language of Rule 4-253(c) permits

bifurcation in this manner—as long as all charges are decided by the same factfinder.

Mr. Hemming also cites to United States v. Nguyen as the Ninth Circuit’s

endorsement of the bifurcated hybrid trial procedure. 88 F.3d 812 (9th Cir. 1996). In that

case, a defendant was charged with two indictments, one of which involved a possession

of a firearm by a convicted felon count. Id. at 814. Before the United States District Court

for the Central District of California, the government moved to try the two indictments

together. Id. The defendant moved to bifurcate the possession of a firearm by a convicted

felon count, and the district court denied his motion. Id. On the issue of trying the two

indictments together, the Ninth Circuit held that “[a]lthough severance or bifurcation is the

preferred alternative, we conclude that the district court did not abuse its discretion by

consolidating Nguyen’s two cases and ordering that the two indictments be tried together.”

Id. at 818.

As to the defendant’s arguments concerning bifurcation, the court concluded that

the trial court did not abuse its discretion in denying his motion. Id. The court reached its

conclusion after reasoning that the defendant failed to demonstrate that he was prejudiced

by the joinder of the counts. Id. Moreover, the court found that two limiting instructions

given by the district court to the jury, informing it that the evidence of the defendant’s prior

convictions should not be considered in deliberating on whether the defendant possessed

the firearm, were sufficient to ameliorate any potential prejudice. Id. at 817–18.

Nonetheless, because the defendant’s motion was denied, the case contains no specific

- 26 - reference to a hybrid trial procedure, with the jury deciding some counts and the judge

deciding the possession of a regulated firearm by a prohibited person counts.

In United States v. Jones, another case relied upon by Mr. Hemming, the defendant

argued that the trial court erroneously denied his motion to sever the possession of a firearm

by a convicted felon count from the remaining charges. 16 F.3d 487, 489 (2d Cir. 1994).

In that case, two trials were held. Id. In the first, the defendant was charged with “armed

bank robbery, bank robbery involving an assault, and use of a firearm during a crime of

violence[,]” which ended in a hung jury and “resulted in a mistrial.” Id. Before the second

trial, the government added two additional counts of possession of a firearm by a convicted

felon—one charge relating to a firearm the defendant allegedly used during the robbery

and the second relating to a firearm the defendant possessed upon arrest. Id.

The defendant moved to sever both of the possession of a firearm by a convicted

felon counts, but the trial court denied his motion with respect to the count relating to the

firearm used in the bank robbery and granted it with respect to the remaining possession of

a firearm by a convicted felon count. Id. at 489. Although the trial judge gave a limiting

instruction to the jury, informing it that the evidence of the defendant’s prior conviction

should not be considered in determining his guilt as to the other counts, the Jones court

concluded that “the judge reminded the jurors repeatedly that Jones was a convicted

felon[.]” Id. at 492–93. In addition, the Jones court concluded that the government merely

added the possession of a firearm by a convicted felon counts “solely to buttress its case

on the other counts.” Id. at 492 (citing United States v. Daniels, 770 F.2d 1111, 1118 (D.C.

Cir. 1985)). Although the court specifically held that the defendant experienced prejudice

- 27 - from the introduction of evidence concerning his prior disqualifying crimes, it ultimately

did not find these grounds dispositive. Instead, the court reversed the defendant’s

convictions and remanded for a new trial under principles of “retroactive misjoinder[.]”

Id. at 493.13

Although the Jones court commented that “[c]ourts have held that joinder of an ex-

felon count with other charges requires either severance, bifurcation, or some other

effective ameliorative procedure[,]” the court did not consider the bifurcation of counts in

a hybrid judge/jury trial. Id. at 492 (citing Joshua, 976 F.2d at 848; Dockery, 955 F.2d at

50). As noted above, none of the cases cited by Mr. Hemming represent instances in which

possession of a regulated firearm by a prohibited person counts were bifurcated and

decided by the trial judge, where the remaining counts were determined by a jury. His

13 The court explained that,“‘[r]etroactive misjoinder’ arises where joinder of multiple counts was proper initially, but later developments—such as a district court’s dismissal of some counts for lack of evidence or an appellate court’s reversal of less than all convictions—render the initial joinder improper.” Id. at 493 (citation omitted). The possession of a firearm by a convicted felon count considered in Jones, with reference to the firearm the defendant allegedly used during the robbery—the possession of a firearm by a convicted felon count that the trial court refused to sever—required the government to establish that the firearm traveled through interstate commerce. Id. at 492; 18 U.S.C.A. § 922(g)(1); see also United States v. Gilliam, 994 F.2d 97, 98 (2d Cir. 1993) (commenting that § 922(g)(1) “prohibits a convicted felon from possessing a firearm in or affecting commerce.”). Because the Jones court held that there was insufficient evidence that the firearm entered into commerce, the court concluded that,

[t]he jury learned that Jones had a prior felony conviction as part of the government’s proof on count four. Having vacated the latter count, we must remand for a new trial on the robbery, armed robbery, and § 924(c) counts because, in retrospect, the jury should never have heard evidence of the vacated count.

Id. at 493. - 28 - reliance on these decisions is therefore unavailing and insufficient to compel us toward a

more expansive interpretation of Rule 4-253(c)’s reference to “any other relief as justice

requires.”

In fact, our research reveals no federal precedent authorizing the bifurcated hybrid

trial procedure. Several decisions involve situations where possession of a firearm by a

convicted felon counts were bifurcated from other counts, but all counts were considered

by the same jury. United States v. Lee, 549 F.3d 84, 88, 94–95 (2d Cir. 2008); Joshua, 976

F.2d at 847; United States v. Busic, 587 F.2d 577 (3d Cir. 1978). In contrast, several courts

have considered the bifurcation of possession of a firearm by a convicted felon counts from

other counts but have not discussed whether the counts would all be heard by the same

factfinder. See Jones, 16 F.3d at 489; United States v. McCode, 317 Fed. Appx. 207, 212

(3d Cir. 2009); United States v. Williams, 504 Fed. Appx. 207, 212–13 (3d Cir. 2012);

United States v. Amante, 418 F.3d 220, 224 n.2 (2d Cir. 2005).

Several federal appellate circuits have also held that a defendant is not entitled to

have the elements of possession of a firearm by a convicted felon charges bifurcated.

United States v. Belk, 346 F.3d 305, 308 (2d Cir. 2003) (bifurcation of the element of prior

conviction); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir. 1993) (same); United

States v. Collamore, 868 F.2d 24, 27 (1st Cir. 1989); United States v. Jacobs, 44 F.3d 1219,

1220 (3d Cir. 1995); U.S. v. Fields, 507 Fed. Appx. 144, 147 (3d Cir. 2012); United States

v. Barker, 1 F.3d 957, 959 (9th Cir. 1993); United States v. Tavares, 21 F.3d 1 (1st Cir.

1994). In the alternative, courts have held that where a “single offense of being a felon in

- 29 - possession” is charged, a defendant is not entitled to bifurcation. See United States v.

Moore, 376 F.3d 570, 573 (6th Cir. 2004) (citing Baker, 1 F.3d at 959).

In Carter, we addressed the authority of a trial judge to bifurcate elements of a

criminal charge to prevent the jury from considering a particular element of that charge.

We acknowledged various authorities that determined that “bifurcation of a trial by

dividing it along the lines of the elements of the crime charged” would lead to serious

problems. Carter, 374 Md. at 710-12, 824 A.2d at 134. In that case, the defendant argued

that the trial judge erred in denying his motion to bifurcate the elements of the possession

of a regulated firearm by a prohibited person count.14 374 Md. at 709–10, 824 A.2d at 133.

In reliance on the federal precedent mentioned above, the Carter Court held that a trial

court may not bifurcate the elements of a possession of a regulated firearm by a prohibited

person charge, and “conclude[d] that the proper approach is that which encourages the

entirety of the charge to be heard by the jury.” Id. at 713, 824 A.2d at 135–36. The Carter

Court emphasized that the one factor that militates against bifurcation of the elements when

trying a defendant on criminal-in-possession charges is ensuring that the jury understands

the criminality of the alleged conduct. Id. at 714. Thus, it is clear that the Carter Court

would not have supported a criminal trial procedure that permitted the elimination of an

element of a charge from the jury’s consideration.

14 The Court of Special Appeals has pointed out, in reliance upon our decision in Carter, that bifurcation of the elements of the offense of possession of a regulated firearm by a person previously convicted of a crime of violence is improper, even if the parties stipulated to the procedure. See Nash v. State, 191 Md. App. 386, 401–02, 991 A.2d 831, 840 (2010).

- 30 - As detailed supra, under Rule 4-253(c) a defendant, for example, must demonstrate

that he or she was or will be unduly prejudiced by the joinder of counts to permit the

severance of counts or any remedy under the Rule’s authorization to grant “any other relief

as justice requires.” See McKnight, 280 Md. at 607–08, 375 A.2d at 553–54.15 We have

advised that “[i]n any given case of similar offense joinder . . . the trial judge must balance

the likely prejudice caused by the joinder against the important considerations of economy

and efficiency in judicial administration.” Id. at 609–10, 375 A.2d at 555. The Court of

Special Appeals has previously noted that there are two identifiable issues relating to the

presentation of evidence demonstrating a defendant’s prior convictions. One of these

issues is based on an evidentiary foundation and the other on principles of misjoinder:

The joinder/severance problem is a classic aspect of the law of criminal procedure. Unlike the merely evidentiary issue of when, in the course of an ongoing trial, to admit evidence of ‘other crimes’ or ‘other bad acts,’ the joinder/severance issue must be resolved, of necessity, pretrial. The evidentiary problem, by contrast, may arise randomly throughout the course of a trial.

Solomon v. State, 101 Md. App. 331, 336, 646 A.2d 1064, 1066 (1994) (citation omitted).

Although these two issues are distinct procedurally and in application, the required

analyses overlap to the extent that—in both situations—courts often consider potential

prejudice to a defendant. This concern for the potential prejudice a defendant may face

permeates a court’s analysis on the evidentiary issue:

Thus, ‘other crimes’ evidence, even though independently and substantially relevant to some contested issue, may be excluded if its probative value is

15 At the time of McKnight, Rule 4-253 was Rule 745. The two Rules contained identical provisions and our prior interpretations of Rule 745 offer guidance in our interpretation of Rule 4-253. State v. Edison, 318 Md. 541, 546 n.1, 569 A.2d 657, 659 n.1 (1990). - 31 - exceeded by potential jury hostility or unfair prejudice. The leeway of this discretion lies in the direction of excluding otherwise admissible evidence. A decision to admit other crimes evidence which is clearly incorrect ‘on this question of balancing probative value against danger of prejudice will be corrected on appeal as an abuse of discretion.’

State v. Faulkner, 314 Md. 630, 641, 552 A.2d 896, 901 (1989) (citations omitted).

The bifurcation issue that we examined in Carter is procedurally distinct from that

of the instant appeal—bifurcation of the elements of a possession of a regulated firearm by

a prohibited person count. See Carter, 374 Md. at 709–13, 824 A.2d at 133–35. In that

case, the defendant, Mr. Carter, was charged with unlawful discharge of a firearm within

Baltimore City, possession of a regulated firearm by one previously convicted of a crime

of violence, and possession of a regulated firearm by a person under twenty-one years of

age. Id. at 697, 824 A.2d at 126. Before the trial court, Mr. Carter moved to have the court

bifurcate the elements of the possession of a regulated firearm by a prohibited person

charge. Id. at 709–10, 824 A.2d at 133. Under the procedure suggested by Mr. Carter, the

jury would determine only whether Mr. Carter possessed a regulated firearm, and if the

jury found Mr. Carter possessed the regulated firearm, “only then would [the jury] have

. . . to determine the other elements of the charge, whether Carter had a qualifying

conviction.” Id. at 710, 824 A.2d at 133.

Ultimately, we disagreed with Mr. Carter’s contention that the trial court erred in

denying his motion to bifurcate the elements of the possession of a regulated firearm by a

prohibited person count. Id. at 713, 824 A.2d at 135–36. The Court based its holding on

federal precedent and concluded that “the proper course is to require a trial judge, when

the defendant elects a jury trial, to allow the State to present evidence of all the elements

- 32 - of a criminal-in-possession charge.” Id. at 715, 824 A.2d at 136. The Court explained its

reasoning in stating,

[a]lthough we, too, understand the dangers of introducing evidence of a defendant’s previous conviction where the jury is considering a similar crime, we conclude that the proper approach is that which encourages the entirety of the charge to be heard by the jury. We are most persuaded by the predominant reasoning of the courts in Collamore and Gilliam. The jury’s role in deciding guilt or innocence involves more than merely finding innocuous facts; rather, it requires a judgment about an individual’s behavior based on an established code. This determination cannot be reached reliably without a full appreciation of the criminality of one’s behavior. The jurors must know, therefore, why they are being asked to subject an individual to criminal punishment for possessing a firearm when, generally, such an act is not illegal. When the jury does not understand that the defendant may not possess a firearm because of a previous criminal conviction, its ability to carry out its role is impeded.

Id. at 713–14, 824 A.2d at 135–36. The Court did, however, devise a method whereby a

defendant’s exposure to potential prejudice stemming from evidence of a prior

disqualifying conviction may be limited or ameliorated.

At trial, Mr. Carter offered to stipulate that he was previously convicted of a felony

or crime of violence—and was therefore prohibited from possessing a regulated firearm—

in an attempt to minimize the potential prejudice he would experience from the jury hearing

evidence of his prior conviction. Id. at 701–02, 824 A.2d at 128–29. Although the court

agreed to only inform the jury that the charge against Mr. Carter was “possession of a

firearm after being convicted of a crime of violence[,]” the State refused Mr. Carter’s

request to stipulate and sought to introduce evidence that Mr. Carter had previously been

convicted of “robbery with a deadly weapon.” Id. at 702, 824 A.2d at 129. The trial court

- 33 - ultimately permitted the State to introduce evidence that Mr. Carter was previously

convicted of “robbery with a deadly weapon.” Id.

Before this Court, Mr. Carter argued that “because he was willing to admit the prior

conviction, the State had no reason to introduce, and the court should not have admitted

evidence that the prior conviction was for robbery with a deadly weapon.” Id. at 715, 824

A.2d at 137. Mr. Carter contended that the jury should have only been informed that he

was previously convicted of a felony or a crime of violence. Id. Relying primarily on Old

Chief, the Carter Court recognized the implicit perils of presenting evidence to a jury that

a defendant has been previously convicted of a crime. Id. at 716–17, 824 A.2d at 137–38

(citing Old Chief, 519 U.S. at 181–82, 117 S. Ct. at 650–51).

Agreeing with the Supreme Court’s analysis in Old Chief, the Carter Court

ascertained that, “the name and nature of a previous conviction, although ‘technically

relevant,’ ‘addresse[s] no detail in the definition of the prior-conviction element that would

not [be] covered by the stipulation or admission [of that element].’” Id. at 720, 824 A.2d

at 140 (quoting Old Chief, 519 U.S. at 186, 117 S. Ct. at 653). We concluded that, where

a defendant offers to stipulate or admit that he or she was previously convicted of a

disqualifying crime, the trial court must accept such a stipulation. Id. at 722, 824 A.2d at

141. We commented that, “in such situations, the name or nature of the previous conviction

should not be disclosed to the jury.” Id. at 720, 824 A.2d at 140. More specifically, we

held that,

when the defendant admits or the parties stipulate to the previous-conviction element of a charge under Section 445(d), the trial judge should inform the jury that the defendant admits that he or she has been convicted of a crime

- 34 - for which he or she is prohibited from possessing a regulated firearm under the law. The judge should not describe the previous conviction with any more particularity or by using the categories of crimes under Section 445 (such as ‘crime of violence’ or ‘felony’).

Id. at 772, 824 A.2d at 141.

In Carter, the trial judge permitted “the State to introduce evidence that Mr. Carter

previously had been convicted of ‘robbery with a deadly’ weapon.” Id. at 721, 824 A.2d

at 140. The admission of this evidence unduly prejudiced Mr. Carter by possibly luring

the jury “into a sequence of bad character reasoning.” Id. Consequently, the trial judge’s

refusal to strike the unnecessary language that characterized the prior conviction by its

statutory categories of crimes under the relevant statutes, presently codified as PS § 5-

133(b)–(c)(1), created a high potential for unfair prejudice to Mr. Carter and warranted our

reversal of his convictions. Id. at 720–22, 824 A.2d at 140–41. Accordingly, the Court

announced a rule of exclusion of unnecessary evidence to limit undue prejudice to the

defendant. Id. at 722, 824 A.2d at 141.

Unlike the Supreme Court in Old Chief, the Carter Court promulgated a per se rule,

under which the State is not permitted to object to such a stipulation and, if requested by a

defendant, the trial court must grant or accept the stipulation. Id. at 720–21. Therefore,

any defendant charged with the possession of a regulated firearm by a prohibited person is

legally entitled to a stipulation that informs the jury that he or she is simply prohibited from

possessing a regulated firearm, and disclosing no further detail regarding any prior

convictions, if the defendant requests it. See id. at 772, 824 A.2d at 141.

- 35 - Mr. Hemming recognizes the ameliorative effect of a Carter stipulation. In fact, at

trial, Mr. Hemming entered a stipulation that he “was previously convicted of a crime that

disqualifies him from possessing a regulated firearm.” As noted above, Mr. Hemming’s

counsel was willing to advise the jury that Mr. Hemming had a prior conviction, because

he referenced Mr. Hemming’s prior arrests during his opening statement. Clearly, although

this stipulation noted a prior conviction, it was permissible under Carter, as it did not

“describe the previous conviction with any more particularity” than necessary and did not

use “the categories of crimes under Section 445.” Id. Therefore, the stipulation that Mr.

Hemming entered into aided in limiting the potential prejudice he would have faced from

the introduction of evidence concerning his prior disqualifying convictions under our

interpretation of Carter.

Despite the ameliorative effect that a Carter stipulation may have, prejudice is only

one component of our analysis under Rule 4-253(c). As noted above, we aim to strike an

appropriate balance between the prejudice a defendant may face and the concerns of

judicial economy and efficiency. See McKnight, 280 Md. at 610, 375 A.2d at 555. A

Carter stipulation is generally preferable in terms of judicial economy and efficiency. The

bifurcated hybrid trial procedure advocated by Mr. Hemming would require a two-phase

trial, with a different factfinder presiding over each portion of the trial. Whereas, a Carter

stipulation involves a singular trial, in which the factfinder is merely informed that the

defendant stipulates that he or she is prohibited from possessing a regulated firearm. A

Carter stipulation is the procedurally simpler method to address the potential prejudice

inherent in cases involving charges of possession of a regulated firearm by a prohibited

- 36 - person and appears to be preferable to bifurcation in terms of judicial economy. See Carter,

374 Md. at 722, 824 A.2d at 141.

Furthermore, Mr. Hemming argues that it “makes no sense to hold . . . that a trial

judge has discretion to protect the defendant from unfair prejudice by severing the criminal-

in-possession counts from the other counts, but lacks discretion to do so by bifurcating the

same counts between judge and jury in a single trial.” This assertion, however, overlooks

the standards applicable to severance under Rule 4-253(c).16 A separate standard—at least

initially—governs a trial court’s analysis on severance. Mr. Hemming discounts the issue

of a defendant’s partial waiver of his or her right to a jury trial. In situations where counts

are severed, a defendant may waive his right to a jury trial and elect a bench trial in one

trial and not do so in the other. Simply put, severance would obviate the need for an

impermissible partial waiver of a defendant’s right to be tried by a jury. See infra at 38–

39. Moreover, Mr. Hemming fails to identify any cases in which a trial court has severed

possession of a regulated firearm by a prohibited person counts from other counts,

suggesting, in most cases, such counts are jointly tried. Accordingly, we find unpersuasive

Mr. Hemming’s argument, that a trial court’s power to sever counts is inconsistent with a

16 In situations where a defendant is charged with multiple offenses, “the judge may order two or more offenses, whether felonies or misdemeanors, or any combination therefore, to be tried together if the offenses are of the same or similar character.” Frazier, 318 Md. at 607, 569 A.2d at 689 (citing Graves v. State, 298 Md. 542, 544, 471 A.2d 701, 702 (1984)). Where a defendant is “charged with similar but unrelated offenses” a defendant must establish “that the evidence as to each individual offense would not be mutually admissible at separate trials” to warrant severance. McKnight, 280 Md. at 612, 375 A.2d at 556. Only after taking into consideration these tenets, a trial court must balance the prejudice caused by joinder with “considerations of economy and efficiency in judicial administration.” Frazier, 318 Md. at 607, 569 A.2d at 689; McKnight, 280 Md. at 608, 375 A.2d at 554. - 37 - trial court’s lack of authority to bifurcate possession of a regulated firearm by a prohibited

person counts in a hybrid trial procedure—involving two factfinders.

We next turn to the potential procedural problems generated by the bifurcated

hybrid procedure. The procedure would require an impermissible “partial waiver” of a

defendant’s right to a jury trial that would complicate a trial judge’s determination as to

whether a defendant has been sufficiently advised of and properly waived his or her right

to a jury trial. Second, in certain situations, the hybrid bifurcated trial procedure may

generate the potentiality of inconsistent verdicts between judge and jury as recognized by

this Court in Galloway.

Rule 4-246 sets forth the procedure through which a defendant may waive his or her

right to a jury trial. The rule provides that,

(a) Generally. In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. The State does not have the right to elect a trial by jury.

(b) Procedure for Acceptance of Waiver. A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily.

Md. Rule 4-246. The Rule does not specifically empower a defendant to elect a jury trial

with respect to some counts of a charging document and waive it with respect to other

counts. See Galloway, 371 Md. at 398–99, 809 A.2d at 665. Further, “[w]e have generally

considered the waiver of the right to be tried by a jury to be a waiver in respect to the entire

merits trial, not portions of the trial.” Id. (citing Martinez v. State, 309 Md. 124, 131, 622

- 38 - A.2d 950, 953 (1987)). We have treated a defendant’s waiver of the right to a jury trial to

be “an either/or selection.” Id. As noted by the Galloway Majority, this Court has

previously held that, in the context of a not criminally responsible plea, a defendant’s

waiver of his or her right to a jury trial on the defendant’s guilt or innocence “inevitably

encompasses a waiver of jury rights as to criminal responsibility.” State v. Marsh, 337 Md.

528, 539, 654 A.2d 1318, 1323 (1995); Galloway, 371 Md. at 399, 809 A.2d at 665–66.17

The Committee Note to Rule 4-246 supports this conclusion in its language that “the

court should seek to ensure that the defendant understands that: . . . unless the defendant

waives a trial by jury, the case will be tried by a jury.” (Emphasis added). The singular

description contained within the Committee Note supports our prior interpretation of Rule

4-246—an interpretation under which a defendant is not entitled to waive his right to jury

trial only with reference to specific charges. As noted by the State, our principal inquiry

in assessing a defendant’s waiver of his or her constitutional right to trial by jury was

whether the waiver was “knowing and voluntary[.]” Abeokuto v. State, 391 Md. 289, 316,

893 A.2d 1018, 1034 (2006) (citing Smith v. State, 375 Md. 365, 377–80, 825 A.2d 1055,

1063 (2003)). The bifurcated hybrid trial procedure urged by Mr. Hemming would

complicate a trial judge’s assessment of whether a defendant’s jury trial waiver is knowing

and voluntary. Specifically, the procedure would complicate this process as it involves

17 Nonetheless, in situations where a defendant enters pleas of guilty and NCR, the defendant may have the NCR portion of the trial determined by a jury—assuming he or she does not waive his or her right to a jury trial. See Md. Rule 4-314(a)(4). - 39 - two factfinders considering different counts. We find this additional level of complication

untenable.

Furthermore, the bifurcated trial procedure, suggested by Mr. Hemming, generates

the issue of potentially inconsistent verdicts between the judge and jury. In Galloway, the

Majority noted that although “convictions based on inconsistent jury verdicts are

tolerated[,]” this principle does not hold in situations where “a judge is involved in

rendering one of the inconsistent verdicts.” 371 Md. at 401, 415, 809 A.2d at 667, 675

(citing Williams v. State, 117 Md. App. 55, 70–71, 699 A.2d 473, 481 (1997)).

Accordingly, the Court fashioned a rule under which any inconsistency in a combined

verdict of a jury and trial judge is impermissible. Id. at 416, 809 A.2d at 676.18

As noted supra at n.18, unlike Galloway, Price and its progeny focused on

inconsistent jury verdicts and did not consider inconsistent verdicts rendered between judge

and jury. As explained by the Galloway Court, “[i]f this Court were to approve the

inconsistent verdicts rendered by the trial judge, it would be authorizing a practice that

would permit the State to achieve a judgment of conviction that overrides a jury’s finding

18 At the time of Galloway, inconsistent verdicts between judge and jury were impermissible, but inconsistent jury verdicts were “tolerated[.]” 371 Md. at 401, 809 A.2d at 667. Our jurisprudence concerning inconsistent jury verdicts has evolved over time. Price v. State, 405 Md. 10, 29, 949 A.2d 619, 630 (2008) (holding that inconsistent jury verdicts are categorically impermissible). In McNeil v. State, we limited the per se rule of Price. 426 Md. 455, 459, 44 A.3d 982, 984 (2012) (distinguishing between a legally and a factually inconsistent verdict, and holding the latter is permissible in criminal trials). More recently, in State v. Stewart, we rejected this distinction. 464 Md. 296, 304, 305, 211 A.3d 371, 376 (2019) (holding that the permissibility of an inconsistent jury verdict depends on “whether the jury verdict on its face indicates that the jury failed to follow the trial court’s proper instructions on the law governing the charged offenses”). - 40 - of acquittal.” Galloway, 371 Md. at 416, 809 A.2d at 675. As demonstrated by the

Galloway Court, the procedure has the potentiality to elevate one trier of fact’s verdict over

the other—a potentiality that ultimately could undermine confidence in the criminal justice

system. See id. at 406, 809 A.2d at 670 (noting that “such matters would undermine the

historic role of the jury as the arbiter of questions put to it”) (quoting Hoffert v. State, 319

Md. 377, 384–85, 572 A.2d 536, 540 (1990)). Therefore, despite the evolution of our

jurisprudence on the permissibility of inconsistent jury verdicts, the Galloway Court’s

holding that inconsistent verdicts between judge and jury are impermissible remains good

law and further supports our holding in the instant appeal—as a potential procedural pitfall

unique to the bifurcated hybrid trial procedure.

In addition to the several federal decisions, Mr. Hemming cites to various

distinguishable decisions from other states involving the bifurcation of possession of a

regulated firearm by a prohibited person counts under the hybrid trial procedure. The only

decision Mr. Hemming relies upon which directly contemplates the bifurcated hybrid trial

procedure is one by the Supreme Court of Connecticut.19 State v. Knight, 266 Conn. 658,

661–62, 835 A.2d 47, 50 (2003). In that case, the court considered “a procedurally unique

19 Mr. Hemming also cites to decisions by appellate courts from other states. However, these cases fall into either one of two categories. First, some of these cases considered bifurcation of counts where all counts were decided by a jury. See State v. Foust, 482 S.W.3d 20, 47 (Tenn. Crim. App. 2015); Lawson v. State, 264 P.3d 590, 599 (Alaska Ct. App. 2011); Morales v. State, 143 P.3d 463, 465 (Nev. 2006); Chapple v. State, 866 P.2d 1213, 1217 (Okla. Crim. App. 1993); Hendrickson v. State, 871 S.W.2d 362, 365–66 (Ark. 1994). Second, the remaining case cited by Mr. Hemming did not identify whether the bifurcated counts would be heard by the same factfinder. Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004). - 41 - criminal trial, wherein two counts of the criminal information were decided by the jury and

a third count was decided separately by the court.” Id. at 660, 835 A.2d at 49. The

defendant was charged with murder, carrying a pistol or revolver without a permit, and

possession of a regulated firearm by a prohibited person; the latter charge being decided

by the trial court. Id. at 658, 835 A.2d at 47. The jury found the defendant not guilty of

carrying a pistol or revolver without a permit, but the trial judge found him guilty on the

possession of a regulated firearm by a prohibited person count. Id. The defendant entered

into a stipulation that he did not maintain a permit to carry a pistol or revolver, so, in

reference to the firearm offenses, the judge and jury were both tasked only with

determining whether the defendant possessed the firearm. Id. at 662 n.8, 835 A.2d at 51

n.8.

On appeal, the defendant argued, among other things, that the trial court’s verdict

was impermissibly logically inconsistent with that of the jury, and therefore, reversal was

required. Id. at 670, 835 A.2d at 55. The Supreme Court of Connecticut considered our

holding in Galloway, that inconsistent verdicts between jury and judge are impermissible,

and rejected the proposition. Id. at 673–74, 835 A.2d at 56–57. Undoubtedly, Knight

demonstrates that the potentiality of inconsistent verdicts, under the bifurcated hybrid trial

procedure, is a substantial issue. For this reason, under our prohibition against inconsistent

verdicts between jury and judge enunciated in Galloway, we recognize that a Carter

stipulation is a more appropriate methodology of ameliorating a defendant from undue

prejudice that avoids the potential pitfalls associated with the bifurcated hybrid trial

procedure.

- 42 - A Carter stipulation is one method through which a defendant may limit the

potential prejudice stemming from the introduction of evidence establishing the

defendant’s legal status. The bifurcated hybrid trial procedure Mr. Hemming urges us to

adopt carries with it a host of procedural issues including, a defendant’s “partial waiver”

of his or her right to a jury trial and the potential for inconsistent verdicts. A Carter

stipulation is preferable in terms of judicial economy and efficiency over the hybrid trial

procedure. Furthermore, we find no Maryland or federal cases contemplating or endorsing

the hybrid trial procedure. Although some federal cases have mentioned the bifurcation of

possession of a regulated firearm by a prohibited person counts, none have contemplated

the bifurcation of counts between two different factfinders in a single hybrid trial.

Accordingly, Mr. Hemming’s suggested hybrid bifurcated trial procedure lacks any

surrounding jurisprudential support justifying its application. Therefore, we hold that a

trial court does not maintain the discretion, under Rule 4-253(c), to bifurcate possession of

a regulated firearm by a prohibited person counts, from other charges, in a singular trial

split between two different factfinders.

Finally, we acknowledge, however, that Md. Rule 4-253(c), does permit a trial

judge, in the interest of justice, to order a bifurcated proceeding in a criminal jury trial to

limit or ameliorate the potential prejudice to the defendant who is tried on multiple counts

which include charges of possession of a regulated firearm by a person previously

convicted of a disqualified crime. Many courts have left it to the trial judge to exercise his

or her discretion to weigh the potential prejudice to the defendant against the interests of

judicial economy when deciding to bifurcate criminal proceedings. See Foust, 482 S.W.3d

- 43 - at 47; Lawson, 264 P.3d at 599; Williams, 504 Fed. Appx. at 212; McCode, 317 Fed. Appx.

at 212; Morales, 143 P.3d at 465; Hines, 801 N.E. at 635; Nguyen, 88 F.3d at 815; Joshua,

976 F.2d at 847; Jones, 16 F.3d at 492; Hendrickson, 871 S.W.2d at 365–66; Chapple, 866

P.2d at 1217. We note that the prejudice complained about must be more than the same

potential for prejudice that every criminal defendant faces when multiple counts are tried

together. See Joshua, 976 F.2d at 848.

A bifurcated trial procedure similar to the trial in Joshua is permitted under Md.

Rule 4-253(c) where the trial judge, in the sound exercise of judicial discretion, determines

that justice requires “other relief” because a party will be unfairly “prejudiced by joinder

for trial of counts, charging documents or defendants.” We offer some guidelines. For

example, in those situations, the bifurcated counts will be decided by the same jury. Thus,

the jury will first hear evidence and deliberate on the counts that do not relate to or require,

as an element of the offense, proof of a defendant’s prior disqualifying conviction. In the

next phase of the trial, the jury will hear necessary evidence of the defendant’s prior

convictions consistent with our decision in Carter, 374 Md. at 722, 824 A.2d at 141, and

deliberate on charges such as possession of a regulated firearm by one with a prior felony

conviction, possession of a regulated firearm by one with a disqualifying conviction;

possession of ammunition by a prohibited person; and similar charges. In the context of

bifurcated proceedings, generally, all of the charges against the defendant will arise out of

the same, uninterrupted series of transactions. As such, the bifurcated trial will be a highly

efficient way to try the case within the trial judge’s discretion. Henceforth, a trial of those

- 44 - offenses to which a defendant’s legal status or prior conviction is irrelevant are insulated

from the jury’s deliberations on the criminal-in-possession counts.

A Joshua-style bifurcated proceeding, like the Carter stipulation, can be an effective

procedure to limit or ameliorate the potential prejudice in a trial involving possession of a

regulated firearm by a prohibited person counts that are included within a multicount

charging document. Like the Carter stipulation and the limiting jury instruction,

bifurcation is a tool available to the trial judge to limit or ameliorate potential prejudice. A

Joshua-style bifurcation proceeding does not present the problems created by a hybrid

jury/judge trial—partial waiver of the right to a jury, inconsistent verdicts between judge

and jury, and a trial court’s verdict topping that of the jury. Further, Joshua-style

bifurcation prevents the jury from hearing evidence of a defendant’s prior convictions

while the jury is deliberating on the counts that are unrelated to that defendant’s prior

involvement with the criminal justice system. See Joshua, 976 F.2d at 848. The

procedure’s ameliorative effect is apparent and substantial.

Notably, in the Joshua case, the defendant had the benefit of both a bifurcated

proceeding and a stipulation to ameliorate the unfair prejudice resulting from the

defendant’s prior conviction. 976 F.2d at 846. We caution that a defendant seeking a

bifurcated criminal trial with respect to multiple counts that include charges like a person

prohibited to possess a firearm or ammunition because of his or her age, mental health, or

criminal behavior must first comply with the Maryland Rules of Procedure. A motion,

timely filed in advance of trial, is necessary to allow the trial judge sufficient time to look

forward in planning the course of the anticipated trial. Accordingly, the motion to bifurcate

- 45 - should be in writing and filed within the 30-day mandatory motion period prescribed by

Rule 4-252(a)(5) for motions to sever.

Mr. Hemming’s second question presented in the appeal sub judice is whether the

trial judge abused its discretion in denying his motion to bifurcate. As we have determined

that a trial judge does not maintain the discretion under Rule 4-253(c) to bifurcate

possession of a regulated firearm by a prohibited person counts from other charges in a

hybrid trial procedure, we hold that the trial court correctly determined that it did not have

the authority for such a bifurcation. The trial judge’s ruling on the motion was reasonable.

Moreover, Mr. Hemming did not request a Joshua-style bifurcation proceeding.

Accordingly, the circuit court did not abuse its discretion in denying Mr. Hemming’s

motion. Therefore, for the foregoing reasons, we affirm the judgment of the Court of

Special Appeals.

JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

- 46 - The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/48a19cn.pdf