Carter v. State

ADKINS, Judge. A jury in the Circuit Court for Baltimore City convicted Antwan Leroy Carter, appellant, of possession of a regulated ¹⁹⁹ firearm by one previously convicted of a crime of violence, possession of a regulated firearm by a person under the age of twenty-one, and unlawful discharge of a firearm within the City of Baltimore. In challenging his convictions, appellant presents two issues of first impression in Maryland: (1) Did the trial court err in refusing to withhold from the jury evidence that appellant had been convicted of a violent felony when appellant was willing to concede that element of his crime? (2) Did the trial court err in refusing appellant’s offer, as a fall-back position, to stipulate before the jury that he was guilty of a “crime of violence,” instead of admitting evidence of his conviction for armed robbery?

We shall hold first that, because the fact of a prior conviction is an element of the offense charged, the State had a right to introduce evidence of the prior conviction to the jury. Second, because appellant offered, as a fall-back position, to stipulate that he was guilty of a prior crime of violence, the trial court was required to weigh the probative value of introducing evidence of the name of his crime against the risk of unfair prejudice to appellant in doing so. We conclude that the trial court did not abuse its discretion in this regard. FACTS AND LEGAL PROCEEDINGS Baltimore City Police Officer Ronald Marriott testified that at approximately 10:45 on the night of August 29, 2000, he was in the 900 block of Coppin Court when he heard gunfire that he estimated to be within 100 yards of his location.

Marriott ran to the location from which the gunfire originated. He saw two men wearing white sweatshirts running down Bethune Road, toward Bunch Road. He also saw appellant approximately 50 yards from him, holding a handgun and firing it into the air. After firing the gun, appellant followed the other men.

Officer Marriott followed appellant. He lost sight of him for 10 or 15 seconds when appellant ran between two houses, but eventually caught up to appellant and placed him under ²⁰⁰ arrest. Appellant did not have a gun on him when he was arrested. Police officers searched the area, but were unable to find the gun.

A gunshot residue test performed on appellant’s right hand after his arrest, however, returned a positive result. As a result of this incident, appellant was charged with possession of a regulated firearm by one previously convicted of a crime of violence, possession of a regulated firearm by a person under the age of twenty-one, and unlawful discharge of a firearm within the City of Baltimore. 1 Before trial, défense counsel requested that the trial court “sanitiz[e] the first count.” [DEFENSE COUNSEL]: .... [W]e were hoping .that before you announced to the jury what the charges were that you would consider sanitizing the first count and redacting ²⁰¹ from it the charge that—convicted of a crime of violence— what we’ll be proposing is that the charge of possession need not go to the jury. If they convict him of that, we understand that that is possession of a handgun by someone who’s been convicted of a crime of violence. What it does is, obviously, it eliminates the potential prejudice— THE COURT: I’m hearing you, ... but I truly would have hoped for you to have raised all of these issues before I had the panel.

I gave you an opportunity to do that. You are not, I know, new to the bar and these issues are not new to the Court, so go ahead. [DEFENSE COUNSEL]: And to be quite frank, Judge, I didn’t think it would be much to do about it because it seems—it doesn’t deprive the State of anything and, better yet, it ensures that this young man [will] get a fair trial on these charges. THE COURT: Well, clearly, the count that the State is bringing is a crime, there’s no question about that. And if that information came to the jury’s attention, I would give ... an instruction, a curative instruction, so that the jury considers that prior conviction only for the purposes that— Let me hear from the State. [PROSECUTOR]: Your Honor, I’d just point out that at this point we’re ready to pick a jury.

But also, that’s one of the crimes that the Defendant is charged with, and I do believe that the jury, as the trier of fact, has to be able to decide that issue. That issue, there will be evidence presented to the jury to support a conviction on that charge the State’s proffering, and that it’s rightfully before this jury to decide.... [DEFENSE COUNSEL]: It also would require them to prove that he’s been convicted of a crime of violence, which means they put in the conviction for robbery [with a] deadly weapon. Now, we’d go to great lengths to keep that from the jury unless a person testifies .... I guess what I’m saying, Judge, is what do we gain by sending that to the ²⁰² jury.

It doesn’t fairly and accurately-the central issue, whether he had a firearm.... THE COURT: Well, in my estimation, ... that is a question for the jury to determine, whether, in fact, that particular crime has been violated by [appellant] or not, and I would—the suggestion I give to you is that I will instruct the jury again not to consider—for any purpose contrary to Mr. Carter’s interest. I would fashion an instruction when the time comes. Defense counsel continued to urge the trial court not to permit the State to present evidence to the jury regarding appellant’s prior conviction for a crime of violence.

THE COURT: [W]hat you’re telling me is that the jury should never know— [DEFENSE COUNSEL]: That’s right. THE COURT:—about it. That’s what your argument is, correct? [DEFENSE COUNSEL]: Yes, ma’am. THE COURT: That request is denied because I am satisfied that all of the charges that [appellant] is facing should go before the jury.

When the State announced its intention to introduce a certified copy of appellant’s prior conviction for robbery with a deadly weapon, a handgun, defense counsel offered to stipulate that appellant had been convicted previously of a crime of violence. The trial court rejected that suggestion, reasoning that such a stipulation would allow the jury to speculate as to what the crime of violence was and possibly conclude that it was “something maybe even worse than robbery [with a] deadly weapon[.]” Ultimately, the trial court permitted the State to introduce redacted docket entries, showing a conviction of robbery with a deadly weapon, but eliminating any mention of a handgun. As part of its instructions to the jury, the trial court explained: ²⁰³ You have heard evidence that the Defendant has been convicted of a crime. You may consider this evidence in determining the guilt[ ] or innocence of the Defendant with respect to the crime charged of possession of a regulated firearm after having been convicted of a crime of violence.

However, you may not consider this evidence in determining the Defendant’s guilt[ ] or innocence of the crime of possession of a regulated firearm by a person who is under 21 years of age or of the crime of discharging a firearm within the City of Baltimore. Appellant took no exception to this instruction at trial. Except to the extent that it refers to his prior crime, appellant does not challenge the validity of this instruction on appeal. 2 After the jury convicted appellant of all three crimes, he filed this appeal. DISCUSSION I. Introducing Evidence Of Prior Conviction For Violent Felony Despite Proffer To Stipulate Appellant contends that the trial court erred in permitting the State to introduce and disclose to the jury evidence of his prior conviction for robbery with a deadly weapon.

He asserts that “[ojnce the defense indicated that it was willing to stipulate to the existence of that conviction, the State had no legitimate need for the evidence.” According to appellant, the trial court also erred in declining to weigh the probative value of the evidence against the danger of unfair prejudice it presented to appellant. Even if the trial court did exercise its discretion, appellant contends, its refusal to exclude evidence of the prior conviction constituted an abuse of that discretion because, “tgjiven the defense counsel’s willingness to concede ²⁰⁴ the existence of the prior conviction, it was simply unnecessary to apprise the jury of this prejudicial element.” The State counters that the trial court properly exercised its discretion in admitting the evidence and providing a limiting instruction to the jury. The State also points out that appellant “never explained to the trial court, nor does he explain on appeal, how the jury could convict him of a crime where the evidence of one element of that crime (whether stipulated to or proven by docket entry submitted to the court) was not presented to the jury.” Maryland courts never before have considered whether a trial court errs when it refuses to permit a defendant to withhold evidence from the jury by conceding a prior conviction that is an element of the crime charged. In State v. Broberg, 342 Md. 544, 559-60 , 677 A.2d 602 (1996), the Court of Appeals held that when parties stipulate to a fact to be disclosed to a jury, the question of whether a particular piece of evidence also may be offered to prove the stipulated fact is committed to the discretion of the trial court, which must balance the competing interests of the parties.

In Broberg , a homicide case, the parties stipulated to the identity of the victim, and the issue was whether the trial court erred in admitting “in life” photographs of the victim. Broberg , however, addressed a situation in which the stipulation was disclosed to the jury, and the State still sought to introduce additional facts pertaining to the matter covered by the stipulation. In contrast, here appellant seeks to avoid all disclosure of his prior crime to the jury. Thus, this case presents a different issue.

Courts in other jurisdictions that have addressed the issue have reached conflicting results. Some courts hold that a trial court has no authority to withhold such evidence from the jury. Other courts say that the admission of such evidence is within the trial court’s discretion, and that the trial court must weigh the risk of unfair prejudice to the defendant against the probative value of such evidence. We review below the cases supporting both views. ²⁰⁵ A. Cases Holding That A Trial Court Has No Authority To Withhold The Evidence From The Jury Many courts have held that a trial court has no authority to keep evidence of a defendant’s prior felony conviction from the jury.

In the leading case of United States v. Collamore, 868 F.2d 24 (1st Cir.1989), overruled on other grounds, United States v. Tavares, 21 F.3d 1 (1st Cir.1994), for example, the United States Court of Appeals for the First Circuit reversed the trial court’s grant of a defense motion to bifurcate 3 the defendant’s trial on a felon in possession of a firearm charge, 4 holding that the bifurcation order was improper. 5 See id. at 27-28 . The court explained that when a jury [has] neither read the statute setting forth the crime nor [been] told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime. The present case is a stark example. Possession of a firearm by most people is not a crime.

A juror who owns or who has friends and relatives who own firearms may wonder why Collamore’s possession was illegal. Doubt as to the criminality of Collamore’s conduct may influence the jury when it considers the possession element. Id. at 28 (emphasis in original). It further observed that the use of special interrogatories, required in a bifurcation, was ²⁰⁶ not favored in criminal cases.

See id. Although rules permitting special verdicts and separate trials of separate issues in civil trials are included in the Federal Rules Of Civil Procedure, the court recognized that there are no corresponding criminal rules. See id. Further, as a general rule, the government has the right to present evidence of an element of the crime even when the defendant offers to stipulate to a particular fact.

See id. United States v. Gilliam, 994 F.2d 97 (2d Cir.), cert. denied, 510 U.S. 927 , 114 S.Ct. 335 , 126 L.Ed.2d 280 (1993), similarly held that the trial court had no authority to withhold the issue from the jury, finding “virtual judicial unanimity in the belief that the jury must be infonned of all the elements of the crime charged.” Id. at 102. Gilliam was charged with violating a statute prohibiting a convicted felon from possessing a firearm in or affecting commerce. The parties stipulated that Gilliam previously had been convicted of the requisite felony, but Gilliam argued that the trial court erred in not withholding the stipulation from the knowledge of the jury.

The trial court reasoned: “If the jury were to be told that in order to find him guilty of this crime all they got (sic) to do is find he possessed a gun ... from the, sort of the collective common sense knowledge of hundreds and hundreds of thousands of New Yorkers, the answer to that question in their own minds might be, so what, a lot of people have guns, what’s the big deal[?]” Id. at 99. The Second Circuit examined the nature of prejudice in explaining why Gilliam suffered none. “[EJvidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” A prior conviction is not prejudicial where the prior conviction is an element of the crime; rather, it “proves the fact or issue that justified” its admission. [18 U.S.C.] [sjection 922(g)(1) outlaws possession of a weapon that has travelled ²⁰⁷ in interstate commerce by an individual previously convicted of certain felonies. The fact that Gilliam was convicted of a felony is an intrinsic issue in [this] trial, and proof of a prior conviction is necessary for the offense to be substantiated. The fact of Gilliam’s prior conviction, therefore, is no more prejudicial than [the police officer’s] testimony that the gun was in Gilliam’s hand before it was recovered under the car....

Where the prior conviction is essential to proving the crime, it is by definition not prejudicial. Id. at 100 (citations omitted). The court rejected Gilliam’s contention that “there is no harm done if [the defendant] concedes the prior conviction element and proceeds to trial merely on the possession issue.” Id. at 100. It eloquently explained how bifurcating elements of the prior conviction would interfere with the jury’s role as the arbiter of community values.

Gilliam’s proposal violates the very foundation of the jury system. It removes from the jury’s consideration an element of the crime, leaving the jury in a position only to make findings of fact on a particular element without knowing the true import of those findings.... Gilliam is not charged with mere possession of a weapon, but with possession by a convicted felon. The jury speaks for the community in condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged.

Gilliam misunderstands the role of the jury in a criminal trial. Our constitution guarantees the accused the right of a trial by a jury of his peers, primarily in order to ensure that the accused is judged by prevailing community mores. As Judge Learned Hand stated, the institution of the jury “introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” As representatives of the people, the jurors can rebuke the accused for violation of community standards, morals, or principles. See, e.g., Witherspoon v. Illinois, [391 ²⁰⁸ U.S. 510, 519 n. 15, 88 S.Ct. 1770 , 1775 n. 15, 20 L.Ed.2d 776 (1968) ] (“One of the most important functions any jury can perform ... is to maintain a link between contemporary community values and the penal system....).

The jury is the oracle of the citizenry in weighing the culpability of the accused, and should it find him guilty it condemns him with the full legal and moral authority of the society.... It is unnecessary to engage in an extensive dialogue on jury nullification or to summarize the Founding Fathers’ belief in the right of the jury to say “no.” It is only necessary to discern Congressional intent and to understand the nature and function of a jury, to wit: to be informed of the nature of the crime, as well as to find the defendant guilty of the offense at issue .... Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority. If an element of the crime is conceded and stripped away from the jury’s consideration, the jurors become no moré than factfinders.

Id. at 100-01 (some citations omitted). The court also rejected the contention that the situation was analogous to Federal Rule of Evidence 404(b). 6 According to the court, “[tjhere is a significant difference ... between a rule formulated to limit the admissibility of potentially prejudicial evidence and a rule that eliminates an element of a crime legislated by Congress.” Id. at 102. 7 ²⁰⁹ The Ninth Circuit reached the same result in United States v. Barker, 1 F.3d 957 (9th Cir.1993), amended on denial of rehearing, 20 F.3d 365 (9th Cir.1994). Any other holding would lead to an impermissible result if the jury did not return a guilty verdict on the possession portion of the crime. The government would be precluded from proving an essential element of the charged offense, and the [trial] court would breach its duty to instruct the jury on all the essential elements of the crime charged.

Id. at 365-66 (footnote omitted). Quoting from Collamore , the Barker Court also stated that the trial court’s bifurcation order created an unfair danger of jury confusion. See id. at 366. Limiting the jury’s consideration of the prior felony element, the court explained, was “contrary to the presumption against special verdicts in criminal cases.” Id.

According to the court, the bifurcation order prevented the government from having its case decided by a jury, and changed the nature of the charged crime. See id. Later, however, in United States v. Nguyen, 88 F.3d 812, 818 (9th Cir.), cert. denied, 519 U.S. 986 , 117 S.Ct. 443 , 136 L.Ed.2d 339 (1996), the Ninth Circuit stated that it “review[s] for abuse of discretion the [trial] court’s refusal to bifurcate the possession of the gun element from the prior conviction element.” Nevertheless, in affirming Nguyen’s convictions, the court stated that because Nguyen had “failed to show that he is a member of a suspect class or that there [had] been a violation of a fundamental right,” “the rule prohibiting bifurcation of the possession of a gun element from the felon status element will be upheld upon a showing of ‘some fair relationship to a legitimate public purpose.’ ” Id. The court cited the reasons set forth in Barker as providing the legitimate public purposes.

See id. Other federal circuits also have adopted the Collamore Court’s reasoning. In United States v. Milton, 52 F.3d 78 , 81 ²¹⁰ (4th Cir.), cert. denied, 516 U.S. 884 , 116 S.Ct. 222 , 133 L.Ed.2d 152 (1995), the defendant stipulated to his prior conviction and moved in limine to prevent the jury from hearing evidence of that conviction. See Milton, 52 F.3d at 80 .

The trial court denied his motion. See id. The Fourth Circuit held that the denial was not reversible error. See id. at 81 .

It reasoned that the jury must be informed of all the elements of the crime charged, and that limiting the jury’s consideration of a required element would require a special verdict. See id. Removing the prior felony element from the jury’s consideration, the court concluded, “prevent[ed] the government from having its case decided by the jury, and changed ‘the very nature of the charged crime.’ ” Id. (quoting Barker, 20 F.3d at 366 ).

In United States v. Koskela, 86 F.3d 122, 125-26 (8th Cir.1996), the Eighth Circuit rejected the defendant’s contention that the trial court erred in refusing to exclude evidence of his prior criminal record until the jury had found that he had possessed a firearm. Similarly, the Tenth Circuit found Collamore and Barker persuasive in United States v. Dean, 76 F.3d 329, 332 (10th Cir.1996), and affirmed the trial court’s decision not to bifurcate the prior felony issue from the possession issue. See also United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.), cert. denied, 508 U.S. 980 , 113 S.Ct. 2984 , 125 L.Ed.2d 680 (1993). State courts and the District of Columbia also have concluded that, in felon-in-possession cases, bifurcation of the prior conviction element from the possession element is inappropriate.

In Goodall v. United States, 686 A.2d 178 (D.C.1996), the defendant requested that the court sever the ex-felon count from the other counts against him, or, in the alternative, permit a bench trial of the felony element of the felon-in-possession charge or allow him to stipulate to his guilt on the ex-felon count if the jury returned a guilty verdict on the other counts. See id. at 180 . In rejecting the defendant’s contention that the trial court had abused its discretion in denying his bifurcation request, the court stated: “We are not ²¹¹ aware of any precedent that would justify such a bifurcation of a criminal charge, trying certain elements to the bench and the remaining elements to the jury.” Id. at 183 . The court further noted that Goodall’s other suggestion would have been unenforceable because a defendant cannot be forced to plead guilty.

See id. at 184 . In Spearman v. Indiana, 744 N.E.2d 545 (Ind.App.), transfer denied, (Ind.2001), the Indiana Court of Appeals found persuasive Collamare and other federal cases holding that bifurcation was not permissible. See id. at 548-49 . According to the court, evidence of the prior felony was “essential to the proceeding,” and its prejudicial effect was minimized by allowing the defendant to stipulate to his prior conviction of the underlying felony.

See id. at 550 . In Alaska v. McLaughlin, 860 P.2d 1270 (Alaska Ct.App. 1993), McLaughlin was charged with being a felon in possession of a concealable firearm. McLaughlin conceded the existence of a prior conviction, and the trial court ruled that evidence of McLaughlin’s prior conviction would be withheld from the jury unless it became relevant to a specific disputed issue. See id. at 1272 .

The Court of Appeals of Alaska, ruling on the State’s petition to review the order, reversed. The court stated that resolution of the issue depended on whether it viewed it “as a narrow question of evidentiary relevance or a broader question involving policies that are not strictly evidentiary.” Id. at 1273 . Adopting the latter view, the court concluded that the jury’s “full understanding of the cause at issue—the wrongdoing for which the accused has been held to answer” was “[ejssential to [its] ability to fulfill its traditional role.” Id. at 1277 . The court limited its holding, however, to cases “in which the charged offense consists of conduct that is ordinarily lawful, [and] is rendered unlawful only because of the defendant’s prior conviction of a felony,” as opposed to cases in which the prior conviction element “only enhance[s] the seriousness of the offense.” Id. at 1278 n. 15.

In Essex v. Virginia, 18 Va.App. 168 , 442 S.E.2d 707 (1994), the Court of Appeals of Virginia held that the trial court did ²¹² not err in permitting the jury to hear evidence that Essex had been convicted of murder. See id. at 710. “Where a necessary element of the Commonwealth’s case is that the accused is a convicted felon, evidence which tends to directly prove that fact cannot be excluded on the ground that its proof is prejudicial to the accused.” Id. Accord Iowa v. Owens, 635 N.W.2d 478 (Iowa 2001); Ohio v. Sweeney, 131 Ohio App.3d 765 , 723 N.E.2d 655 (1999); see also Ohio v. Smith, 68 Ohio App.3d 692 , 589 N.E.2d 454, 457 (1990), motion for leave to appeal overruled, 57 Ohio St.3d 711 , 568 N.E.2d 696 (1991)(when prior offense is an essential element of the crime charged, its use is not only proper but required). The need to present proof of the prior conviction in the same proceeding as that in which the firearm possession is proven is evidenced by the potential effect of the State’s not doing so.

For example, in Illinois v. Wright, 98 Ill.App.3d 1089 , 54 Ill.Dec. 530 , 425 N.E.2d 42 (1981), the defendant was charged with felony theft, which required a prior conviction for theft. Before trial, defendant agreed to stipulate that she had a prior conviction for theft, and the prosecution agreed not to introduce evidence of that conviction to the jury. She was convicted of misdemeanor theft, but the court sentenced her for the felony theft because of the stipulation. She appealed, arguing that her conviction and sentence for felony theft should be vacated because the jury had not heard evidence of the prior theft.

See id., 54 Ill.Dec. 530 , 425 N.E.2d at 43 . The appellate court agreed. See id., 54 Ill.Dec. 530 , 425 N.E.2d at 45 . The Illinois statute has since been amended to eliminate the need for such proof.

See Illinois v. Jennings, 181 Ill.App.3d 439 , 130 Ill.Dec. 185 , 537 N.E.2d 6, 7 (1989). In Ohio v. Nievas, 121 Ohio App.3d 451, 700 N.E.2d 339 , appeal dismissed, 79 Ohio St.3d 1505 , 684 N.E.2d 89 (1997), the defendant had moved to bifurcate the issues before trial so that his prior conviction would be tried to the court rather than the jury. The court granted the motion and permitted the defendant to stipulate to the existence of the prior convic ²¹³ tion outside the presence of the jury. See id. at 343.

On appeal, the defendant contended that he was deprived of his right to a jury trial because an essential element of his case had been tried to the bench without a valid jury trial waiver. In this case, however, the appellate court rejected the defendant’s contention, stating that “while it may have been error for the trial court to bifurcate proof of [the defendant’s] prior conviction from the remainder of the elements of the charged offenses, it was [the defendant] who requested the bifurcation[.]” Id. at 343. “Under the invited-error doctrine,” it reasoned, “a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.” Id. B. Cases Holding That The Admission Of The Prior Crime Element Is A Matter Of Discretion A small minority of federal and state courts have held that whether to permit the jury to learn that the defendant has a prior conviction is a matter of discretion for the trial court. Minnesota v. Davidson, 351 N.W.2d 8 (Minn.1984), provides the most clear-cut enunciation of the minority rule.

There, the Minnesota Supreme Court concluded that the trial court erred in not permitting the defendant to stipulate that he had a prior conviction of a crime of violence. See id. at 12 . We believe that generally in a prosecution for being a felon in possession of a weapon the defendant should be permitted to remove the issue of whether he is a convicted felon by stipulating to that fact. In the vast majority of such cases the potential of the evidence for unfair prejudice clearly outweighs its probative value.

However, the door should be left open so that in appropriate cases where the probative value of the evidence outweighs its potential for unfair prejudice, the evidence may be admitted. Id. at 11 . The correct approach, according to the Minnesota court, would have been “to compare the potential of the evidence for unfair prejudice with the relevance of the evidence to issues ²¹⁴ other than the issue to which the stipulation relates.” Id. at 11-12 . The jury should have been instructed that the defendant had stipulated that under Minnesota law he was not entitled to possess a pistol, and that it should direct its attention to whether the State had established the requisite possession.

See id. at 12 . Nonetheless, the court concluded, without elaboration, that the error was “not so prejudicial as to require reversal” of the defendant’s convictions. See id. at 12 . Wisconsin also has held that whether to accept the defendant’s admission that he has two or more prior convictions is a matter within the trial court’s discretion, and the State has no absolute right to prove the prior convictions by evidence.

See Wisconsin v. Alexander, 214 Wis.2d 628, 643 , 571 N.W.2d 662, 668 (1997). Alexander was convicted of operating a motor vehicle under the influence of alcohol, under a statute having as an element the requirement that the defendant have two or more prior convictions. The Wisconsin Supreme Court ruled that the trial court should determine, under Wisconsin’s evidentiary rule parallel to Federal Rule of Evidence 403, 8 whether the unfair prejudicial effect of the State’s evidence outweighed its probative value. See id. at 641-44 , 571 N.W.2d at 668 .

Where prior convictions is an element of the charged crime, the risk of a jury using a defendant’s prior convictions as evidence of his or her propensity or bad character is great. And where the prior offense is similar or of the same nature or character as the charged crime, the risk of unfair prejudice is particularly great. Id. at 642-43 , 571 N.W.2d at 668 . Because the nature of the offense charged was similar to the defendant’s prior offenses, the court held that the probative ²¹⁵ value of introducing the offense, even by stipulation or admission of the defendant, was outweighed by the danger of unfair prejudice.

Weighing the probative value of the evidence of the defendant’s prior convictions, suspensions or revocations against the unfair prejudicial effect to the defendant, where the sole purpose of the evidence is to prove the status element, we conclude that the probative value is virtually nil. [Moreover,] the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Because the prior convictions are of the same nature and character of the charged offense, the jury is likely to engage in propensity or bad character reasoning. Id. at 651 , 571 N.W.2d at 671-72 . United States v. Mangum, 321 U.S.App.D.C. 348 , 100 F.3d 164 (1996), appeared to blend the issues of severance and bifurcation, suggesting that both are discretionary.

There, the defendant was convicted of unlawful possession of a firearm by a felon. The trial court, at Mangum’s request, severed the felon-in-possession count from the other counts of the indictment. It declined to bifurcate the elements of the felon-in-possession count so that the jury would decide possession before it heard about the prior conviction, and Mangum appealed. The District of Columbia Circuit framed the question as whether the trial court had shown “ ‘sufficient scrupulous regard for the defendant’s rights.’ ” Id. at 171 (citation omitted).

It concluded that “the [trial] court did not abuse its discretion by severing Count One from the other counts and trying Count One first, nor did it abuse its discretion by deciding not to bifurcate the ex-felon element and the other elements of Count One.” Id. Although, in addressing bifurcation, the court spoke of the trial court’s “discretion,” it relied on cases holding that the trial court had no discretion. It observed that “[a] number of our sister circuits have reached the same conclusion on this issue,” and cited Collamore, Gilliam, and Barker, all of which held that the trial court did not have authority to withhold evidence of the defendant’s prior convictions from the jury. See id. at 171 n. 11. ²¹⁶ c.

Resolving The Issue Under. Maryland Law Some of the rationales for concluding that bifurcation is impermissible, set forth in the cases discussed in Section I.A. of this opinion, carry less weight under Maryland law. To the extent that bifurcation is disfavored in a criminal ease because it requires a special verdict, it would not seem to be as disfavored under our law as it is under federal law. For example, in Dixon v. State, 364 Md. 209 , 244 n. 33, 772 A.2d 283 (2001), the Court of Appeals recommended that trial judges use special verdicts to avoid ambiguity regarding the theory under which a defendant had been convicted of first degree assault.

Moreover, it is unclear whether, under Md. Rule 4-325, it would constitute reversible error for the trial court to fail to instruct the jury on all elements of the, offense with which appellant. was charged. Indeed, an instruction such as that suggested by the court in Davidson might suffice. See Davidson, 351 N.W.2d at 12 (instruction that .defendant stipulated he was not entitled to possession and that focus is on whether State established possession). Further, the fact that the State might not have its' case decided by the jury is not an issue here, because, unlike its federal counterpart, Md. Rule 4-246(a) does not require the State to consent to a jury waiver.

Compare Md. Rule 4-246(a)(“a defendant having a right to trial by jury shall be tried by a jury unless the right is waived .... If the waiver is accepted by the court, the'State may not elect a trial by jury”) with Fed. R.Crim. Proc. 23(a)(“Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government”). Despite these differences, we find persuasive the rationales of Collamore and Gilliam respecting the nature of prejudicial evidence, and the potentially detrimental effect on the jury process that bifurcation might have.

As both Collamore and Gilliam have stated, when a prior conviction is an element of the crime charged, it is not prejudicial to the ²¹⁷ defendant. See Collamore, 868 F.2d at 28 ; Gilliam, 994 F.2d at 100 . Accord Barker, 20 F.3d at 366 ; Arizona v. Petersen, 195 Ariz. 9 , 985 P.2d 494, 496 (1999), cert. denied, 528 U.S. 1161 , 120 S.Ct. 1174 , 145 L.Ed.2d 1083 (2000); South Carolina v. Hamilton, 327 S.C. 440 , 486 S.E.2d 512, 515-16 (App.1997), cert. denied, 525 U.S. 904 , 119 S.Ct. 239 , 142 L.Ed.2d 196 (1998). Due to the prevalence of legal firearms, moreover, a jury might be hesitant to convict a person of a possession of a firearm charge without knowing the special circumstances involved—that the defendant previously had committed' a crime of violence.

As the Collamore Court said, “a juror who owns or who has friends or relatives who own firearms may wonder why [appellant’s] was illegal.” Collamore, 868 F.2d at 28 . Or, as the trial judge in Gilliam phrased it, the jury might be thinking, “what’s the big dealt?]” Gilliam, 994 F.2d at 99 . A juror’s learning that a law-abiding citizen possesses a firearm, on the one hand, and a juror’s learning that a person convicted of a crime of violence does so, on the other, would likely call into play markedly different moral perceptions on the part of a juror. It is likely that a juror will readily perceive that possession of a firearm by a person convicted of a crime of violence poses a risk to society that the legislature properly declared unlawful.

See Johnson v. State, 67 Md.App. 347, 378 , 507 A.2d 1134 , cert. denied, 307 Md. 260 , 513 A.2d 314 , cert. denied, 479 U.S. 993 , 107 S.Ct. 594 , 93 L.Ed.2d 595 (1986) (section 445(d) “is intended to prevent those who have already demonstrated a propensity for violence, as evidenced by a conviction of a crime of violence, from possessing handguns”). Felon in possession of a firearm cases differ from those involving convictions for driving under the influence of alcohol, in which the prior offenses are an element of the statute, such as Alexander . In the latter, the commission, of the current alcohol offense, without reference to any earlier offenses, ²¹⁸ carries with it the immediate moral perception that the conduct is dangerous and criminal. Because we rest our decision in part on the jury’s perceptions about the legality and morality of possessing firearms, we pause here to review the Maryland law on possessing and transporting handguns and other regulated firearms.

Maryland Code (1974, 1996 Repl. Vol, 2001 Cum. Supp), Art. 27 section 36B governs wearing, carrying, and transporting handguns. 9 A “handgun,” as defined in Art. 27 section 36F(b), is “any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle[.]” Art. 27 section 445 governs the sale, transfer, and possession of “regulated firearms.” The term “regulated firearms” is statutorily defined to include both handguns and “assault weapons,” a class that includes an extensive list of specific weapons. See Art. 27 § 441.

There is no general prohibition against regulated firearms. Rather, Art. 27 section 445, entitled “Restrictions on sale, transfer and possession of regulated firearms,” simply prohibits a dealer or person from selling, renting, or transferring a regulated firearm to any person falling into specified risk categories. For example, it is illegal for a dealer or person to sell, rent, or transfer a regulated firearm to a person whom he “knows or has reasonable cause to believe” has been convicted of any of several enumerated crimes, is “[ajddicted to or a habitual user of any controlled dangerous substance,” or is a “habitual drunkard.” See Art. 27 § 445(b)(l)-(4). Thus, with respect to a firearm that is not a handgun, its possession or transportation by most persons may be perfectly legal.

With respect to handguns, moreover, people can maintain them for legitimate use in their homes or their businesses. See Art. 27 § 36B(c)(4). Although section 36B provides that a ²¹⁹ person shall not wear, carry, or transport any handgun, a person may do so if he or she has a permit. See Art. 27 § 86B(c)(2). 10 The Secretary of the State Police is required to issue a permit to carry a handgun to a person over 18 who has not suffered certain disqualifying events or conditions, and who “Lh]as, based on the results of investigation, good and substantial reason to wear, carry, or transport a handgun[.]” Art. 27 § 36E(a).

According to the statute, the phrase “ ‘good and substantial reason’ ... shall be deemed to include a finding that such permit is necessary as a reasonable precaution against apprehended danger.” 11 Art. 27 § 86E(a)(6). According to a Fiscal Note prepared in 1999 by the Department of Legislative Services to support a legislative bill, 12 there were 25,171 persons licensed to carry a handgun in ²²⁰ Maryland. 13 Thus, although it may not be routine to obtain a handgun license in Maryland, such licenses are not rare. The presence of legal handguns, as well as other firearms that do not require permits supports the notion, advanced in Collamore, Gilliam, and other cases, that if jurors do not learn why a defendant is criminally charged for possessing a firearm, they might be hesitant to convict. Such hesitation, if