Hemming v. State

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,