Carter v. State

824 A.2d 123 Leroy Antwan CARTER v. Maryland.

STATE of Term, Sept. No. 2002. Appeals Maryland.

Court May Forster, Nancy Deputy S. Public E. (Stephen Defender Harris, Defender, brief), Baltimore, Public on for Petitioner. Davis, (J. Atty. Curran, Anderson Joseph

Celia Asst. Gen. Jr., Atty. MD, brief), Baltimore, Gen. of on for Respondent.

Argued BELL, C.J., ELDRIDGE, RAKER, before W1LNER, CATHELL, BATTAGLIA, HARRELL and JJ.

BATTAGLIA, Judge. Leroy

In Antwan charges Carter’s trial regulated by previously firearm one convicted of a crime of violence, possession of regulated person under years of age, and discharge unlawful of a firearm within the City Baltimore, the Circuit Court for City Baltimore admit- ted evidence that previously Carter had been convicted robbery deadly with a weapon. sought Carter had to shield jury from learning previous the nature his conviction. granted petition We for a writ of certiorari determine the appropriate method for a trial potential to minimize prejudice a case where one element of crime requires proving a conviction. Background

I. August On 2000 p.m., around 10:45 Officer Ronald Marriott of City Department Baltimore Police was exam- ining the scene of a shooting reported that had been earlier that evening. conducting While this examination in the 900 Coppin block of City, gunfire, Court Baltimore he heard 698 yards away. approximately came from 100

which he estimated gunfire ran to area where he believed Officer Marriott and, there, up the side- running saw two men originated he men, Leroy out be Antwan walk. One those who turned handgun shooting Carter, carrying a and allegedly was Carter, lost “straight up” into the air. Officer Marriott chased seconds, eventually fifteen and of him around ten or sight nonchalantly nothing ... like had ever spotted “walking him did not officer Carter and happened.” The then arrested on hands any gunshot A test gun. recover residue Carter’s on hand present right was his gunshot residue revealed although not on his left. regulated a firearm charged was with

Carter robbery deadly a by previously convicted of one who was 445(d) Code, §27 Maryland Article weapon violation Vol., (1957, regulated a Supp.),1 possession 1996 1999 Repl. 21 by age in violation of one who under firearm 445(e) (1957, Vol., Code, Repl. § Article 27 1996 Maryland City of a firearm within Baltimore Supp.),2 discharge 1999 Code, § 112.3 City Article 19 of the Baltimore violation Code, 445(d) provides part: § Maryland in relevant 1. Art. person: possess regulated if the person may A not firearm (1) Has been convicted of: (i) A crime of violence; State; (ii) felony Any classified as a this violation (iii) Any in this that carries as a misdemeanor State violation classified statutory years; penalty more than 2 or (iv) person Any offense where the classified as a common law violation years. imprisonment of more than received a term of Code, 445(e) provides part that §27 in relevant “a Maryland 2. Art. possess regulated age may not years who person is under designed regulated solely for a firearm.” or ammunition discovered, Special Appeals Carter had been the Court of As City Prior his an version of the Baltimore Code. under outdated date, City § was charging of the Baltimore Code renum- Article substantively in a section under Balti- identical bered recodified Code, (2000). prohibits City 59-2 § Art. 19 59-2 Section more City, any gun, pistol, "fir[ing] discharging] or firearm within [of] military parade, and then order of it be on some occasion unless having officer the command...." some 17, 2000, on Carter requesting After November appeared City before the Circuit Court for Baltimore 27, 2000, an November 2000. On November Carter filed 4-252,4 Maryland motion pursuant requesting omnibus Rule part tried for separately “he be each offense.” Carter January tried on immediately prior was 25 and and selection, to jury requested he the trial to “sanitize the count,” first proof which of his conviction for robbery deadly weapon armed with a an was essential ele- counsel, following colloquy ment. The between Carter’s judge, and prosecutor sug- demonstrates of two Carter’s gested to having jury alternatives consider the evidence conviction, (1) prior his severing charges, include: and (2) bifurcating in possession the elements the criminal charge: hoping

[DEFENSE were that before COUNSEL]: [W]e you charges you announced to the what the were that sanitizing would consider first count redacting it charge of a that —convicted crime violence—what proposing charge we’ll be is that not possession need that, go jury. they to the If him of convict we understand that that is handgun by someone who’s been is, convicted of a obviously, crime What it does violence. it potential eliminates the prejudice— THE COURT: I’m ... hearing you, truly but I would have hoped you for I to have raised all of had these issues before panel. gave you I an do opportunity to that. You are endangerment Carter also was with reckless violation Code, Vol., (1957, Maryland Repl. 12A-2 Article Section Supp.), which acquittal is not before us because his for motion was granted at the end the State's case. Maryland provides part: Rule 4-252 in relevant (a) court, Mandatory In following motions. the circuit matters conformity be shall raised motion in with this Rule and if not so court, shown, good are raised waived unless the for cause orders otherwise: (5) request joint A separate trial of defendants or offenses. not know, issues are new not, to the bar these I new Court, go so ahead. frank, I quite Judge, And to be COUNSEL]: [DEFENSE about it it much to do because think it would be didn’t and, anything better deprive the State of doesn’t seems—it a fair trial on these gets this man yet, young it ensures charges. Well, clearly, count that the State

THE COURT: if crime, question that. And no about bringing is a there’s attention, jury’s give I would came to the that information instruction, instruction, that the so ... curative an that— only purposes for the considers State. Let hear from the me Honor, just point out that at Your Fd [PROSECUTOR]: also, But that’s one ready pick jury. point this we’re with, and I do is crimes that the Defendant fact, to trier of has to be able jury, that as the believe issue, pre- will be evidence that That there decide issue. charge to a conviction that jury support to the sented jury this to rightfully it’s before proffering, and that State’s decide. allowing that explained

Defense counsel jury consid- improper could lead to potentially prior conviction erations: them to require It would also

[DEFENSE COUNSEL]: violence, of a crime which prove that been convicted he’s deadly robbery they put a] in the conviction for [with means that from go great lengths keep we’d weapon. Now jury---- by Judge, gain what we saying, I I’m is do guess what fairly accurately— jury. that It doesn’t sending to the issue, That he had a firearm. doesn’t— whether the central estimation, Well, ques- ... that is a my THE COURT: determine, whether, fact, particu- jury tion for the not, I by Mr. Carter lar crime has been violated I will instruct give you I is that suggestion would—the jury again not to any purpose contrary consider—for Mr. I Carter’s interest. would fashion an instruction when the time comes. prevent jury hearing any

To evidence about that conviction, suggested defense counsel then that Carter would admit that he had a felony, been convicted of one possession charge: element the criminal in I guess, Judge, [DEFENSE what I’m saying COUNSEL]: is that agree talking we—can posses- when we’re about handgun sion of a it is someone been [who has] convicted felony violation. That is not someone who’s under 21 that, years age. know We but the doesn’t necessari- that, ly want to know especially if it’s a crime of violence because only stating prejudice it’s—we’re differ- —what it ence does make? Is that the issue? agree

If we that he has a they crime violence and if convict him of handgun guilty he’s of the— THE you’re COURT: telling [W]hat me is that the should never know—

[DEFENSE right. COUNSEL]: That’s is, your argument [THE COURT]: it. That’s what —about correct? Yes,

[DEFENSE ma’am. COUNSEL]: [THE The request COURT]: I denied because am satis- fied that all of charges Mr. facing Carter is should go jury. before the

Having denied, request had this presented Carter next another method to shield jury learning the that he had been of robbery deadly convicted with a weapon. He offered to stipulate that he had been convicted of a crime of violence so in judge, announcing that the allegations, the would not describe the of that previous nature jury: crime to the Well, Honor,

[DEFENSE Your additionally, COUNSEL]: I think what the defense would asking be for in the alterna- stipulation tive of our that if posses- he were convicted of possibly sion—be convicted of being the while in that not inclined to proceed If the Court were felon. simply route, at least ask that the Court then we would without of a crime of violence indicate that he’s convicted it was that enunciating which crime violence specifically was convicted of. he my is that de- you’re requesting

THE So what COURT: that, the was allegation indicate was—that scription that he you’re asking what me? is that is that he allegation That COUNSEL]: [DEFENSE even, of a crime of violence or previously convicted was mean, felony. I I think appropriately, more probably hearing has an interest in the that that —if the State in really essentially prior felon that he’s a felon of violence. commission a crime charge against announce agreed the court to After being after convicted of “possession as of a firearm Carter describing the without exact nature crime of violence” offense, to seek to stipulate refused to continued the State to pled guilty had documentary evidence Carter introduce willingness weapon. with a Carter iterated his robbery deadly previous “alleviate[] his stipulate regarding details, what that put gory speak, so to the need is.” violence crime of and the court rejected stipulate, offer

The State Carter’s entries, describing the introduction of redacted docket allowed “robbery deadly weapon.” with a previous conviction as decision, that, without a this the court reasoned making In crime, previous jury might “speculate as description of the possibly what that crime of can be” and determine violence “it, fact, maybe than something worse could be even weapon.” with a robbery deadly how it should consider The instructed conviction, which robbery armed evidence Carter’s a was crime of violence: explained she has been You have heard evidence Defendant may You consider this evidence convicted crime. innocence of Defendant determining guilt or respect possession regulated to the crime of having of firearm after been convicted a crime of violence. However, you may not consider this in determining of guilt the crime of Defendant’s innocence of regulated by person years firearm a who is under age or the crime of within discharging City of Baltimore.

The guilty returned verdicts all three counts. On 2001, April years court sentenced Carter to two count, imprisonment on the one-year prison first a consecutive count, one-year sentence on the second and a concurrent term on the third count.

The of Special Appeals Court affirmed the convictions in State, (2002). Carter v. 145 Md.App. 802 A.2d 460 The appellate rejected court intermediate Carter’s that contention trial court should have bifurcated the elements of the possession charge. criminal in It concluded the State permitted should be to “disclose to fact previously was [Carter] convicted a crime of violence” jury might appreciate wrongfulness because not of his handgun possession understanding why prohib- without it was ited. Id. at at 802 A.2d 474. The court also concluded in refusing the Circuit Court did not err to sever the try counts separately them because Carter failed to request 220-21, Id. severance. 802 A.2d at 475. Even if requested trial, had properly court, he a severed reasoned the denial that request would have been appropriate because “evidence conviction of [Carter’s] a crime of violence under count one unduly prejudicial was not or unfairly to his against defense counts two and three.” Id. at 802 A.2d at Finally, approved the court court’s decision to allow (rob previous disclosure the nature of Carter’s conviction bery deadly weapon). Following Supreme Court’s analysis States, Old v. United 519 U.S. 117 S.Ct. Chief 644, 136 (1997), L.Ed.2d 574 the Court of Special Appeals held judges, that trial presiding when criminal involving over trials a criminal in possession charge, may allow disclosure of the “ only ‘pro its charge when

nature outweighed by danger of substantially value is bative ” Carter, 230, at 802 A.2d at Md.App. 145 prejudice.’ unfair 5-403). view, trial In Rule the court’s (quoting 480 Md. balancing Rule necessary [Md. 5-403] judge “performed identifying previ abuse its discretion” and did not test Id. at 231, deadly weapon. with a robbery as a ous conviction at 481. 802 A.2d certiorari, we granted, for writ of which petition

Carter’s (2002), State, 261, presented v. 808 A.2d 806 Carter 371 Md. following questions: three to refusing exclude evidence 1. Did the trial court err had convicted of crime been [Mr. Carter] willing was to concede that where the defense violence of the crime? element offer refusing Carter’s] the trial court [Mr. Did err guilty was a “crime before the he

stipulate violence,” convic- admitting of his instead of evidence robbery? tion armed in finding that the Special Appeals err 3. Did Court necessary appropriate performed the and judge balancing test? the trial agree Special Appeals

We the Court evidence that present judge properly allowed State which had convicted of a crime for he previously been Carter under regulated prohibited possessing was 445(d). Nevertheless, Code, 27, Maryland Article Section introduction erroneously permitted the the trial because of Carter’s convic- specific of the nature of evidence tion, we reverse.

II. of Review Standard case, are address issues In we asked to present admissibility charges joinder or involving severance joinder Rulings on matters severance of evidence. State, discretionary. Frazier v. Md. generally 318 charges are State, v. (1990); Grandison 597, 305 607, 684, 569 A.2d 689

705 685, 580, denied, 873, 38, Md. 506 A.2d cert. 479 107 U.S. S.Ct. denied, 611, 174, 1001, L.Ed.2d reh. 479 107 93 93 U.S. S.Ct. (1986); State, 542, 544, 609 471 L.Ed.2d Graves v. 298 Md. (1984). A.2d 702 This applies discretion unless a defen dant with similar but offenses unrelated establishes that the as to each individual offense would not be mutually State, separate McKnight at trials. v. admissible (1977). case, Md. A.2d such a In Nevertheless, defendant is Id. entitled severance. where charges closely multiple defendant’s are related each other and arise out of proximately incidents that occur within time, location, circumstances, same and where the defen improperly prejudiced joinder dant would not aby be charges, Frazier, is no there entitlement severance. Graves, 691; 549-550, Md. at at A.2d 298 Md. circumstances, A.2d 704-05. In those trial has judge the discretion to or join charges, sever that will the decision if only be disturbed an is apparent. abuse discretion See Graves, 549-50, 298 Md. at 471 A.2d at 704-05. respect involving admissibility

With issues the evidence, although admissible, relevant generally evidence is State, 391, 404, Merzbacher v. 432, 346 Md. 439 697 A.2d (1997), by court, it “should be the if proba excluded trial the tive value such substantially evidence determined to be outweighed by danger the of unfair prejudice.” v. Andrews State, 1, 19, 282, (2002) 372 Md. 811 A.2d 292 (citing Maryland “ 5-403). Rule decision to admit ‘[A] relevant over evidence objection an that the is unfairly prejudicial evidence not will ” be an Merzbacher, reversed absent abuse of discretion.’ 346 State, Md. at 697 A.2d at (quoting v. 342 Williams 724, 737, Md. (1996), 679 A.2d overruled on other State, v. grounds, Md. Wengert A.2d (2001)).

III. Discussion Carter that contends the trial court made several erroneous rulings respect prior to the evidence of his conviction. First, he judge claims that the trial improperly his denied prior all of his conviction from request withhold Second, Carter, the trial commit- jury. according judge by suggestion ted inform rejecting reversible error that he only felony that Carter had been convicted of a as Third, maintains, opposed crime of violence. Carter alternatively, by judge that the trial committed error describ- ing robbery crime a deadly the nature of the as -with “felony” to it as weapon merely referring rather than or violence,” suggested. “crime of as Carter We address each of arguments in turn. Carter’s

A. argument, According judge first the trial should Carter’s all his from kept have information about could jury. accomplished by Carter claims this have been (1) by trying possession two criminal in one of methods: (2) counts, separately by bifurcating from other charge possession charge the elements of the criminal so his status as a felon was not revealed until after deter- possessed had whether he firearm. mined

1. Severance prevent reaching his To former conviction from jury, Carter claims should have severed other counts. This possession charge criminal in only procedure jury determining guilt would have involved the as of a firearm under the charges to the one age City 21 and in discharging of a firearm the of Baltimore. charges, In guilty the event of verdicts on those claims Carter “guilty plea” he a as to criminal in would have entered the however, possession argues, The that the charge. State Cir request did abuse discretion in denying cuit Court not its the closely for charges against severance were because the Carter and, therefore, appropriately together related tried without causing prejudice.5 him undue or unfair preserve 5. also Carter this The State maintains that failed issue on move, pre-trial, charges pursuant the appeal because he did not to sever

707 above, ordinarily, As judge, we observed the trial discretion sever of an afforded to decide whether to the counts State, for trial. Frazier v. 597, 607, indictment 318 Md. 569 State, v. 684, (1990) 685, Grandison (citing A.2d 689 305 Md. 705, (1986)). decision, judge In making 506 A.2d 580 this the weigh prejudice in likely against must the the defendant trying together against judicial the counts of considerations Frazier, economy efficiency. 318 at A.2d at Md. State, 604, 609-10, McKnight v. (citing A.2d 280 Md. (1977)). trial in joined In a with counts are as case, present courts are most concerned that “the of may charged, use evidence of or a one crimes connected them, group of of disposition part infer a criminal may defendant from which he found guilty also be of other McKnight, 280 Md. at charged.” crimes 375 A.2d at 554- however, judge, 55. The must also consider the various countervailing judicial economy, aspects including the time id. at See resources both the court and witnesses. 608-09, 375 A.2d at 554. We will not disturb decisions judge trial based on this unless weighing are interests Frazier, discretion. See judicial there has been an abuse 318 Md. 569 A.2d at 691.6 4-252(a)(5). Maryland Special agreed Rule Appeals The Court of issue, reasoning pre-trial with the State oil this that Carter's omnibus "specify sought (possession motion failed to that he to sever count two regulated person by age twenty-one) firearm under the or (unlawfully discharging three City count more) within firearm).” of Balti (felon pre from count one aof Carter's motion, however, trial separately omnibus "he be moved that tried for suggested each offense.” Carter also trial to the that the never criminal-in-possession charge, should know of the to which the judge responded, request trial "That is denied because I am satisfied charges facing go that all Mr. Carter is should before the view, jury.” adequately In our preserved Carter the issue of severance 8-131(a) appellate Maryland (permitting appel review. See Rule an late court decide that have issues been "raised or decided court”). State, Recently, (2002), Galloway v. Md. A.2d 653 we against reviewed a trial court's decision to sever counts a defendant with, alia, wearing, who had been carrying, transport- inter ing handgun, possessing having counts and two firearm after 708 Frazier,

In a that bears a remarkable resemblance case us, judge that a had not determined trial the one before we of multiple to sever a trial refusing abused his discretion Id. That case involved a defen- against counts the defendant. Frazier, dant, his criminal sought who sever that had arisen charge from other criminal counts of a firearm Id. at A.2d at 687. The a of single from series events. of request, and Frazier was convicted judge denied his and transporting handgun” “posses- carrying and “wearing, being crime of violence.” convicted sion a revolver after 603-04, Following Frazier’s unsuccess- Id. at at 687. A.2d granted his Special Appeals, we appeal ful to the Court petition for writ certiorari. Frazier, joined, absent may that counts be explained,

We closely they if are related arise improper prejudice, proximate time and that occur within the same incidents closely and all counts were related space. Because Frazier’s involving person and one of one incident one arose “out required improp- Frazier “show that he was handgun,” we Id. at erly prejudiced joinder” of the counts. improper prejudice, As Frazier’s claim of A.2d at 691. Judge stated for the Court: Orth jury previously The trial court allowed the been crime. convicted criminal-in-possession guilt except two counts

to determine counts, all jury’s finding. jury judge The which the determined after it, including acquitted all of counts before the defendant on count, guilty judge defendant wearing carrying but the found the convictions, charge. criminal-in-possession We reversed on the jury's honored the verdict and holding that the trial "should have at A.2d verdicts.” Id. at not rendered inconsistent Galloway, concurring opinion in in which he Judge Wilner wrote a competing may as a anticipated the difficulties that arise result criminal-in-possession charges are are involved when interests that charges. jointly Md. at 809 A.2d at 676 tried with other hand, that, J., (Wilner, recognized type concurring). He on one this prejudice proceeding prospect of to the defendant" “raises the undue [] unsavory hear "evidence of defendant’s because the would 417-19, Id. 809 A.2d at criminal. at record or status” as a convicted hand, severing acknowledged charges he 676-77. On the other repetition much require empaneling of new and a "could presented jury.” Id. 809 A.2d at 677. to the first We cannot conceive of a factual situation which would be prejudice less conducive to untoward than the circumstances go here. convictions The to the elements of the offense. caught Frazier was in possession red-handed hand- gun. Exactly the same evidence as to charge each would support finding a unlawfully possessed Frazier a hand- gun, the foundation of both only offenses. The additional testimony charge as to one prior would be the fact of the conviction.

Id. at A.2d at 691. The trial judge’s curative instruc- tion, directing jury to use the defendant’s convic- only deciding guilt tion in his respect with the criminal possession charge, any remaining mollified concerns we had about potential prejudice to Frazier.

The case before us is no different from Frazier. Carter was charged with a all emanating number of crimes single from a all involving possession incident and and discharge of a Frazier, regulated firearm. charges against Like Car- ter “could not closely be more related —the bases of the similar, merely crimes were not they were one and the same.” Id. 569 A.2d at 691. All of the evidence that Carter possessed a firearm goes directly to the elements of the charged. crimes which he was It makes little sense to completely hold a separate trial on the criminal-in-possession charge “only when the additional as to charge [evidence] [that] would be conviction.” Id. Carter suffered the fact no prejudice undue as a joinder, result of the and considerable judicial resources were conserved possibly avoiding a sepa- trial involving rate an entirely jury new hearing mostly the Thus, same evidence. we hold that the trial did not abuse her discretion in denying request Carter’s to sever the against counts him.

2. Bifurcation of the Elements complains Carter judge’s the trial denial of his request to bifurcate the elements of the criminal in charge allowed the highly state “to introduce prejudicial evi against insists, instead, dence [him].” Carter that the trial only make a as to jury finding have had the judge should had regulated jury a firearm. If the possession of Carter’s affirmative, would it have finding only in the then made such charge, whether had to determine the other element procedure would qualifying had conviction. This Carter improperly considering Carter’s prevented have possessed determining regulated whether he past criminal night August responds 2000. The on the State proceeding jury the type this of bifurcated denies the judgment” ability fully “undermine[s] “to make informed State, is so because system.” According this our learn, to convict if the do not jury might jurors be hesitant charged criminally possess- initially, why the defendant a firearm. ing case, Special Appeals Court opinion

In its this the differing various among the views comprehensively discussed bifurcating charge a criminal on the issue of jurisdictions prove some conviction. Car- prosecution which the must 205-20, no ter, A.2d at see Md.App. at 802 465-75. We discussion, it is although repeat to the court’s extensive reason highlight predominant rationale behind the two useful to the charge. a criminal bifurcating to approaches that a does not Many courts concluded have prevent authority charge a defendant’s possess bifurcate This considering charge. from an element of that jury the Collamore, by v. represented is best United States position (1st Cir.1989) grounds, F.2d 24 overruled other United (1st Tavares, Cir.1994), 21 F.3d 1 where the United States v. a trial for the First Circuit reversed Appeals Court States elements a defendant’s court’s decision bifurcate the felon-in-possession charge. explained The court federal it the by dividing along of a trial the lines of “bifurcation charged” prob- would result in serious of the crime elements lems:

First, setting forth jury when a neither read the statute crime, may, nor all it crime told of the elements of the question what the accused did was justifiably, whether a stark present example. crime. The case is Possession

7H juror A who people a firearm most is not crime. owns may or who who own firearms has friends relatives why as possession illegal. wonder Collamore’s Doubt was criminality may of Collamore’s conduct influence it jury when considers the element. (footnote omitted). at

Id. procedure 27-28 Such a would also instructions, required special have giving jury which the court disfavored in criminal Id. 28. The cases. court also that, stipulate, observed offer to despite defendant’s government may present choose to of the conviction. Id.

The Second similar reasoning Circuit followed United Gilliam, (2d. denied, Cir.), v. F.2d States cert. 510 U.S. (1993). S.Ct. 126 L.Ed.2d It also held that a may prior-conviction trial court not bifurcate the element from other felon-in-possession elements of a charge. federal The court the jury “representatives discussed the role of as people it is role rebuke [whose to] the accused violation morals, standards, community Id. principles.” at 101. Eliminating charge an jury’s element from the consider ation jurors renders the “no more than factfinders” and denies representatives them their role as community’s con explained: science. Id. The court proposal very Gilliam’s violates the foundation system. It jury’s removes an consideration ele- crime, ment leaving position in a only findings a particular make of fact on element without know- ing import the true of findings. Again, those Gilliam is not charged possession with of a weapon, mere but posses- with by a sion convicted felon. The jury speaks for the commu- nity in behavior, such condemning and it cannot condemn such behavior if it is of unaware the nature the crime charged.

Id. at 100-01. appellate

Other federal courts have reasoning followed this in determining government the has a right present evidence of all charged, elements the crime including the 712 criminal-in-pos a underlying

defendant’s Koskela, 122, F.3d States v. 86 charge. See United session (8th Cir.1996) affirming in the trial Collamore (citing 125-26 of a felon hot to bifurcate the elements court’s decision F.2d Birdsong, v. 982 charge); United States possession Cir.1993) curiam) (11th reasoning (adopting (per 482 not err holding that the district court did Collamore bifurcation); United request for denying defendant’s Cir.1993) (9th Barker, (holding that 1 959 v. F.3d States single may not “bifurcate the offense the district court proceed possession multiple of a firearm into a felon in being ings”). come to the same conclu appellate courts have

Several state not be of the should entertained sion that bifurcation elements criminal-in-possession charges. a See trying defendant (stat (D.C.1996) States, A.2d v. Goodall United request defendant’s have ing, respect a felony element and decide decide element, any precedent not that would are aware of “[w]e trying certain charge, a bifurcation of criminal justify such remaining to the and the elements elements bench (Ind. Indiana, 744 N.E.2d 548-50 jury”); Spearman v. was holding that bifurcation App.2001) (citing Collamore 1270, 1277, P.2d McLaughlin, v. permissible); not Alaska that, (Alaska “in (concluding in cases Ct.App.1993) 15n. conduct that is ordinari consists of which the offense lawful, only is unlawful because ly rendered [and] felony,” all conviction of elements defendant’s a “full together, so the has charge should tried be. wrongdoing understanding of the cause issue—the answer”); Virgi Essex v. been held to which the accused has (1994) (“Where nia, 168, 442 Va.App. S.E.2d case is necessary Commonwealth’s element directly felon, which is a tends accused convicted proof that its ground be excluded on the prove that fact cannot accused.”). to the prejudicial court, courts, however, that a trial at its A have held few discretion, proof of the elements may allow bifurcation

713 See, possession charge. of a criminal in v. e.g., Minnesota Davidson, (Minn.1984); 11-12 N.W.2d v. Wisconsin Alexander, (1997); 214 Wis.2d N.W.2d Unit (D.C.Cir.1996). 164, 171 ed v. Mangum, States 100 F.3d Most court, of require courts the trial in exercising these its discre tion, weigh probative to the value of the evidence of the against danger prejudice conviction the of unfair to the defen open, dant. The door is holdings, left under to allow these the jury hear evidence of and whether determine the defendant actually possessed a firearm any before it hears evidence previous convictions. this procedure Courts allow have expressed jury likely concern that the engage propen is sity reasoning or bad if character hears the evidence previous along the convictions firearm-possession element, especially previous when the nature of the conviction Alexander, charged. is the same as the crime 571 N.W.2d at 672.7 we,

Although too, dangers introducing understand the a defendant’s where crime, considering a similar proper we conclude that approach is encourages that which entirety charge jury. be heard persuaded by We are most predominant reasoning the courts Collamore and Gil- liam. jury’s The in deciding guilt role or innocence involves facts; merely finding rather, more than requires innocuous it judgment about an individual’s behavior based on an estab- lished code. This determination cannot reliably be reached without full appreciation criminality of one’s behavior. jurors know, therefore, The must why they being are asked to subject an individual punishment to criminal possessing for when, generally, such illegal. an act is not When Judge Wilner’s in Galloway concurrence noted that several courts approved have type procedure some prevent bifurcation potential prejudice previously convicted defendant tried on 419-20, felon-in-possession charges. 371 Md. at 809 A.2d at 677-78 DeMasi, (1st (citing Cir.1994); United States v. 40 F.3d 1306 United Joshua, (3rd Cir.1992); States v. Nguyen, F.2d United States v. (9th Cir.1996)). 88 F.3d 812 everyone agrees He also warned "not ” approach good that the bifurcation is a . . one. . possess not may not that the defendant jury does understand conviction, previous ability a of a criminal its firearm because carry out is impeded. to its role reasoning saying adopting

In this and that, courts, system, in recognize the federal federal we cases, trial government jury to a in criminal where is entitled jury to trial i as, Maryland, has no entitlement a in the State n in option jury Maryland belongs criminal cases. The States, v. Compare Singer United entirely to the defendant. (1965) 790, 630, 24, 783, 36, 13 L.Ed.2d 85 S.Ct. 380 U.S. (“[T]he Government, litigant, legitimate as has a interest a a conviction is warranted seeing that cases in which it believes jury,] the tribunal which the Constitution are tried before [the result.”), a likely as to fair and United regards produce most 1174, Robertis, 715 F.2d ex rel. v. De States Williams (7th Cir.1983) (“[A] a defendant does not have constitutional trial; insist a bench jury upon to trial and either right waive a may request a or veto his bench prosecutor the court 4-246(b) trial.”), Maryland (providing that a “defen Rule may right by jury any to a trial time before dant waive the State, trial”), v. 309 Md. Martinez the commencement (1987) a criminal (stating 522 A.2d once trial, may right jury a “the not waives the to State defendant State, trial”), v. jury Md. elect Countess (1979) (“[T]he 1302, 1305 say as prosecution has no to 408 A.2d trial; by court is to be tried mode whether accused . distinction, however, This does jury prerogative.”) his analyses this case. The courts’ not affect our resolution in “right” primarily not focus on the Collamore and Gilliam did present jury. its to a government of the federal case Rather, great one factor courts extent those relied that, believe, against ensuring bifurcation: we militates most criminality alleged con jury understands the 101; Collamore, Gilliam, F.2d at 28. 994 F.2d at duct. Moreover, play only of bifurcation would come into if the issue If jury trial. the defendant the defendant elects have trial, improp no cause for concern over waives a there is conviction. The previous er considerations of the defendant’s fact-finder, judge, as any is able consider evidence of previous only purpose determining for the single criminal-in-possession element charge. mind, principles proper

With these we that the hold require judge, course is to a trial when the defendant elects trial, present to allow the State to evidence all ele criminal-in-possession charge. bar, ments of a In the case at therefore, Circuit properly request Court denied Carter’s to withdraw jury’s his conviction from the consideration. Stipulate

B. Offer Because Carter’s final two closely are contentions related, we address them together. argues He trial the judge, having decided to jury allow the to hear evidence of the conviction, prior improperly request preclude denied his to any jury mention to the nature of that conviction. In view, Carter’s willing because prior he was to admit the conviction, introduce, the State had no to reason and the court admitted, should not have evidence that the robbery Rather, was for deadly weapon. with a jury should have told previously been that Carter had been convict or, ed of a if felony that description rejected, previous was conviction should have to been referred as a conviction of a crime of violence. position

The State’s is that the decision to admit the name of Carter’s prior conviction within fell the trial court’s discre- Moreover, tion. standpoint, the State’s the trial court properly exercised its discretion because a broad description crime, Carter’s previous as such “felon” or “crime of violence,” jury would have speculate allowed the that he committed a crime than robbery “even worse a deadly Thus, weapon.” State, according actually to the Carter bene- fitted from the court’s decision to allow the crime to be robbery deadly described as with a weapon. Supreme

The Court faced a situation almost identical to States, one before us in Old v. United 519 U.S. Chief (1997). case, petitioner in that The S.Ct. L.Ed.2d Chief, a dangerous weapon, of assault with charges Old faced violence, posses to a crime using a firearm relation of a one who has been convicted crime by sion of a firearm exceeding year. one by a term punishable imprisonment for Old had charges, Prior his on those Chief been arrest bodily causing injury,” crime of “assault serious convicted here, trial, at felony. petitioner, as a As qualified sought by preventing considerations improper to avoid previous of his crime. To any exact nature reference end, by stipulating, ... problem to “solve the he offered requesting the Court to instruct the that he agreeing and by imprisonment punishable has crime been convicted (1) prosecu court year.” one The trial allowed exceeding present reject tor the offer and later The assault conviction. exact nature Old Chiefs on all three counts. jury convicted Old Chief appeal to the Ninth Following Old unsuccessful Chiefs The Circuit, Supreme Court character Court reversed. scope judge’s “principal [as] ized the issue Evidence] Rule of which autho under [Federal discretion ‘probative when its value relevant evidence rizes exclusion danger preju unfair substantially outweighed L.Ed.2d dice. ...’” Id. at 117 S.Ct. at stated, results whenever evi prejudice,” “Unfair the Court declaring ground on a guilt factfinder into “lure[s] dence charged.” Id. at proof specific to the offense different 180, 117 650, 136 at L.Ed.2d at 588. The Court observed S.Ct. certainly generaliz ... grounds that include improper “[s]uch taking bad into bad character and ing act a defendant’s earlier act that did the bad now raising that odds he later as if (or, worse, calling preventive as for even Id. at momentarily).” innocent 180- happen he should to be 81, 650, 136 588. 117 at L.Ed.2d at S.Ct. that of one’s con- commented

The Court reasoning that type of “bad character” victions invites this id. at unanimously almost come disallow. See courts have 650-51, 181-82, 117 136 L.Ed.2d at 588-89. The S.Ct. at

717 that explained prior subject Court evidence of convictions is 403, balancing under weigh- test Federal Rule Evidence ing probative against prejudicial value of the evidence its 182, 651, 117 effect. Id. at S.Ct. at 136 L.Ed.2d at 589. This balance, Court, according by to the must be “com- considered evidentiary 184, 652, paring alternatives.” Id. at 117 at S.Ct. is, 136 L.Ed.2d at 590. That by assessing, rather than isolation, evidentiary item’s (probative “twin tendencies” effect), prejudicial value and courts should consider item “ availability ‘in view of proof other means of and other ” facts appropriate making decision of admissibility!.’ [its 184, 652, Id. at at S.Ct. 136 L.Ed.2d at (quoting Advisory Committee’s Notes of Fed. Rule Evid. 861). U.S.C.App., p.

As to specific problem by raised prior evidence of a conviction for purposes proving in possession felon charge, the Court wrote:

[T)here question can be no that evidence of the name or prior generally nature of the offense carries a risk of unfair prejudice to vary the defendant. That risk will from case to ... case but will be substantial whenever the official record by offered arresting Government would be enough to juror sequence lure a into a of bad reasoning. character Id. at at at S.Ct. L.Ed.2d The Court observed Old Chief had offered an evidentia- ry presenting alternative to the name or nature of previ- ous conviction. This alternative came in form an offer which, to stipulate, view, in the Court’s “amounted to an offer ” prior-conviction admit that the element was satisfied.... Id. at 117 S.Ct. at L.Ed.2d 591. The Court suggested proffered would, fact, “Old Chiefs admission merely have been not seemingly relevant but evi- conclusive dence that element” and that the name of offense no “addressed detail the definition prior-conviction element that would not have been stipulation covered or admission.” Id. prosecution’s proposed stipu- claim that

Addressing it full deprived opportunity “present lation of the case,” evidentiary force of its the Court wrote: recognition prosecution that with its burden This evidentiary depth a continuous persuasion needs to tell has, however, virtually application point no story when the status, legal dependent is a on some at issue defendant’s wholly independently concrete of the judgment rendered him. As against of later criminal behavior events case, the for an in this choice of evidence such element narrative usually proposi- not and abstract between eventful tion, propositions slightly varying but between abstrac- tion, saying some crime either record conviction for admitting at a certain time dr statement occurred thing naming particular without offense.... The same most to know is the conviction admitted needs falls within the class of crimes the defendant thought bar a Congress possessing should convict from point may readily this be made in a defendant’s gun, and instructions. admission and the court’s underscored 190-91, 654-55, 136 at at at L.Ed.2d 593-94. Id. S.Ct. rule,” “general concluding: The Court announced its felony-convict peculiarities these of the element of Given it, like to prove and of admissions when used status evidentiary cognizable is no difference between the there proba- an and of significance legitimately admission record would component prosecution of the official tive case, place any In this as in other prefer to evidence.... likely which the conviction is an offense improper only ground, conviction on some rea- support risk of prejudice conclusion was that the unfair did sonable probative substantially outweigh the discounted value conviction, it was an abuse of discretion record an admission was available. admit the record when 191-92, 655-56, at 594-95 Id. at L.Ed.2d S.Ct. omitted). (footnote Supreme

The Court of Florida followed of reasoning has the State, (Fla. the Old Court in Brown v. So.2d Chief 1998). petitioner The in Broom was with and convict of “unlawfully possessing by ed a a firearm convicted felon in violation of at petitioner Florida Id. 884. The [a statute].” “ stipulate had offered to as to the existence the ‘convicted trial, Despite objection felon’ element.” this offer and over at prosecution copies the was allowed introduce certified of the petitioner’s previous prove several convictions into evidence to “ ” the felon’ ‘convicted element crime. Id. the

On appeal, Supreme the Court of Florida reversed the based, in large part, Construing convictions on Old Chief. equivalent Florida’s of Federal Rule Evidence the that, requested court held “when in by a defendant a felon-in- case, a possession of firearm the trial court must a approve stipulation whereby acknowledge parties the that the defen- is, elaboration, dant without a prior further convicted felon.” added). (emphasis Id. at 889 required The court further that “neither previous [of documents the the[ ] nor the convictions] prior number and nature the convictions should be disclosed jury.” to the trial Id. 889. at The court’s rationale was It, varied. like Supreme the Court in Old was Chief, persuad- that prosecution’s ed the in telling interest “a continuous story ... virtually has no application point the when at issue is the legal Furthermore, defendant’s Id. status.” at 885. the court reasoned, “Offering anything into evidence beyond what is necessary to establish legal the defendant’s as status a con- victed felon is proceeding, irrelevant the current has ‘dis- value,’ probative counted may needlessly and a risk improper grounds.” at Id. 889. Supreme The interpreted Court of Kansas Old simi Chief larly Lee, in (1999). State v. 266 Kan. 977 P.2d 263 The case, Lee, petitioner in that a appealed conviction for violating a Kansas statute prohibited convicted felons from pos sessing trial, firearms. Id. at 265. At Lee had offered stipulate prevent as to his felony status to hearing evidence of previous his felony aggravat conviction of battery. nevertheless, ed The trial judge, had admitted evi In prior finding of Lee’s conviction. error dence of the nature decision, high court Kansas embraced trial court’s provide a application in status case” rule for “limited “[ejxclusion prejudice.” the basis of undue evidence on expressly adopted reasoning of Old at The court Id. that, Brown, holding requested a defen “[w]hen Chief case, [trial court] a criminal dant acknowledge whereby parties stipulation must approve elaboration, is, prior without further defendant added). (emphasis Like Id. 270-71 convicted felon.” Broum, [documents court instructed “neither nor number nature conviction] 271. jury.” to trial Id. at be disclosed the convictions should Old meaningful see no difference between We Chief cases, Brown; Lee, the us. In all of those and the case before prove only that the defendants were prosecution needed satisfy Maryland conviction the element. felons to Florida, Federal, courts, counterparts, and Kansas like their probative of if “its value permit the exclusion of substantially outweighed by danger prejudice.” the unfair agree with Old that Maryland Rule We 5-403. Chief conviction, although previous nature a “technical name and relevant,” in the of the no detail definition ly “addresse[s] by the that would not covered [be] prior-conviction element we, Therefore, element].” admission stipulation or [of too, that, opinion requested by when the defendant are of the Code, Maryland Article criminal-in-possession in a case under 445, accept or 27, stipulation trial a court must Section was of a crime defendant convicted admission hold criminal-in-possession statute.8 We qualifies under the that, acknowledge per did announce a se rule We that Old not Chief previous or the name nature under Rule of Evidence Federal felon-in-posses- always in a must be withheld from the stipulate to that in offered to or admit sion which the defendant case did, high in previous The courts Florida Kansas conviction. however, we their view. share that, situations, name or also such nature not jury.9 conviction should be disclosed case, however, rejected present trial in the The offer to admit that he had been convicted of a Carter’s instead, and, “felony” “crime of violence” the State allowed convict previously introduce evidence that Carter had been deadly” of this “robbery weapon. ed The admission evidence, although negligible probative value as legal status under unduly prejudiced defendant’s Section by possibly luring Mr. “into a of bad sequence Carter reasoning.” See Old Chief, character U.S. Thus, at 591. judge’s

S.Ct. at L.Ed.2d refusal to objectionable language abuse of strike constituted an discretion, and convictions must be Carter’s reversed.

As a rubric of our not inquiry result Section does prohibits possession by end here. Section 445 individ- uals any catego- who have been convicted of one numerous (d). categories ries crimes listed under subsection Those violence,” “a felony, carry- include crime of a misdemeanor ing statutory years penalty prison, more than two or a law common violation that results in a of imprisonment term courts, prior Supreme 9. Numerous federal to the Court's decision Chief, required judges accept also stipulate Old offers to See, previous-conviction felon-in-possession charge. e.g., element Wacker, 1453, (10th 1995) United v. F.3d (“Today States 1472-73 Cir. stipulate we hold that where a defendant offers to as to existence of the conviction, felony prior stipulation a the judge permit trial should go jury proof to the as of the status element of [the federal statute], provide procedure whereby or an alternative the Jones, jury felony.''); is advised of the fact the former of United v. States (D.C.Cir.1995) (holding 67 F.3d 324-25 judge that the trial abused denying its in discretion a motion to exclude evidence of the nature of and, further, prior noting judge the defendant's conviction that the trial informing jury in of prior erred the the of nature the defendant's conviction); Tavares, (1st Cir.1994) (en United States v. 21 F.3d banc) (stating that it now “cannot conceive of in circumstances which probativeness the surrounding prior of the facts would conviction outweigh prejudice the the from of defendant admission those Poore, details”); (4th 1979) (“As United States v. 594 F.2d Cir. conviction, long appellant stipulates felony as to the the district language descriptive felony court should strike the of the nature of that indictment.”) from . . . conviction the 445(d)(i)-(iv). Code, §27 In years. than Art. of more two categories, question then becomes light of these numerous previous conviction may judge the trial characterize the how or stipulation of instructing the defendant’s when admission. that, admits or the hold when the defendant

We charge stipulate previous-conviction element parties to the 445(d), judge the trial should inform the under Section has admits that or she been convicted that the defendant he prohibited possessing crime for he or she is which judge not under the law. The should regulated firearm particularity or any conviction previous describe with more (such as by using categories crimes under Section “felony”).10 description convic or A “crime violence” it a category high potential with by statutory tion its carries just reasoning,” character jurors sequence lure “into a bad (i.e., by its name or nature judge as if the crime described Moreover, describing the robbery deadly weapon). with a previ no particularity probative is more that the crime judge exists than if the were to use ous-conviction element general description forth above. This general language set determining how any potential also avoids confusion fits conviction that more than one previous characterize a 445(d). listed categories of crimes under Section THE SPECIAL APPEALS OF COURT OF JUDGMENT REMANDED TO THAT COURT REVERSED. CASE THE TO REVERSE JUDGMENT WITH INSTRUCTIONS case, analogous Broberg, v. 342 Md. In a somewhat State 10. (1996), judge may "in the trial admit A.2d 602 we addressed whether parties stipulated photographs a homicide after the had life” victim identity. "the We concluded that should to the victim's may to determine whether evidence be admitted retain discretion opinion prove stipulated Id. at 677 A.2d at Our fact." perceived present be as a withdrawal from our case should not that, law, but, rather, recognition as position Broberg as a a matter probative name nature of a value of the prejudice substantially outweighed danger undue when the prior-conviction parties stipulate to the element defendant admits or the under Section 445. OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL ON ALL COUNTS. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS BE TO PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

ELDRIDGE, J., opinion files concurring in result. ELDR1DGE, Judge, concurring in part.

I concur in III, B, result and in Part subpart opinion. Court’s join I do not the remainder of majority’s opinion.

Case Details

Case Name: Carter v. State

Court Name: Court of Appeals of Maryland

Date Published: May 14, 2003

Citation: 824 A.2d 123

Docket Number: 73, September Term, 2002

Court Abbreviation: Md.