Galloway v. State

Concurring opinion by

WILNER, Judge.

I concur in the judgment. The Court is correct in holding that, on the record in this case, once the jury returned verdicts of not guilty on Counts 5, 6, and 7, it was impermissible for the judge to find appellant guilty on Counts 8 and 9.

I write separately only to suggest that (1) the joinder of a criminal in possession of a firearm (CIP) charge with other charges that include, as an element, the possession of a weapon, necessarily raises the prospect of either undue prejudice to the defendant or of inconsistent verdicts, regardless of the procedure used to deal with the joinder, and (2) although the common law rule against inconsistent verdicts, except when rendered by the same jury at the same time, suffices to resolve this case, it is not the best approach. Also applicable, and, to me, preferable, is collateral estoppel — both the common law doctrine and its incorporation into the prohibition against double jeopardy.

It is becoming increasingly common to include a CIP count in an indictment that contains, or is to be joined with another indictment containing, other charges requiring proof of the defendant’s possession of a weapon, and that presents a dilemma for both the prosecution and the defense, especially under the Maryland CIP statute. Article 27, § 445(d) makes it a felony, subject to a mandatory sentence of five years imprisonment, not subject to suspension or parole, for a person to be in possession of a regulated firearm if the person (1) has been convicted of a felony, a crime of violence, or a *418 misdemeanor carrying more than a two year sentence, (2) is a fugitive from justice, a habitual drunkard, or a habitual user of a controlled dangerous substance, (3) is suffering from a mental disorder and either has a history of violence or has been confined for more than 30 consecutive days in a mental institution, (4) is currently subject to a non-e* parte civil protection order, or (5) is less than 30 and was, in the past, adjudicated delinquent as a juvenile for committing a felony, crime of violence, or misdemeanor carrying a sentence of more than two years.

Ordinarily, those various elements of the CIP law relating to the defendant’s criminal or juvenile record, mental health status, addiction to alcohol or controlled dangerous substances, or history of violence would not be admissible with respect to any other offense, and, except in the rare circumstance, the defense would most likely not want that kind of evidence presented to the jury while it is considering the other offenses. The State, on the other hand, does not want to have to try the case twice — once to prove that the defendant committed the current offense embodying possession of a weapon and again to prove that element of the CIP offense. If the jury convicts on the other offenses embodying possession of a firearm, the only additional evidence needed to establish the CIP count is the defendant’s previous record or status. If, as is most often the case, the State is relying on a previous conviction, juvenile adjudication, or existing civil protection order, in the absence of some real dispute about the matter, that fact may ordinarily be supplied either by stipulation or by certified documents. If the State is relying on the defendant’s mental health status or addiction to alcohol or drugs, especially when coupled with a history of violence, that issue could well become a major one in the trial and, because of its clear potential for undue prejudice, almost require some form of separation.

Several different approaches have been tried in order to resolve the problem. The one least favorable to the defendant is to have the jury consider all of -the charges together, including the CIP charge, which would either allow evidence of *419 the defendant’s unsavory record or status to be presented, with a limiting instruction with respect to that evidence or, as is often the case, a stipulation as to the defendant’s status coupled with a limiting instruction. That approach, of course, does not raise the issue presented here, because inconsistent verdicts rendered by the same jury at the same time are accepted, but, as noted, it may well be inadequate to address the problem of undue prejudice, especially if the CIP charge rests on a serious or violent prior offense or a history of violence.

Because of the potential for prejudice, on motion or by agreement, the court may sever the CIP 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. 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. 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. The approach taken here, of essentially separate, but contemporaneous, trials — one before the jury, one before the judge-is simply another option.

The Federal courts have approved several of these approaches (although never the one used here). Some have found no error in the District Court’s refusal to sever the CIP count and its allowance of either evidence of or a stipulation to the defendant’s prior conviction. See United States v. Bowie, 142 F.3d 1301 (D.C.Cir.1998) (stipulation); United States v. Ward, 1996 WL 143470 , 1996 U.S.App. LEXIS 10098 (6th Cir.1996) (unreported) (evidence presented); United States v. *420 Stokes, 211 F.3d 1039 (7th Cir.2000) (stipulation); United States v. Rogers, 150 F.3d 851 (8th Cir.1998) (stipulation); United States v. Wacker, 72 F.3d 1453 (10th Cir.1995) (stipulation). Others have approved of the bifurcation procedure. See United States v. DeMasi, 40 F.3d 1306 (1st Cir.1994) (apparent bifurcation); United States v. Joshua, supra, 976 F.2d 844 (bifurcation); United States v. Yazzie, 1998 WL 75707 , No. 97-10068, 1998 U.S.App. LEXIS 3054 (9th Cir. Feb. 23, 1998) (unreported) (bifurcation); United States v. Nguyen, 88 F.3d 812 (9th Cir.1996) (preference for bifurcation or severance); United States v. Brown, 1995 WL 236718 , 1995 U.S. Dist. LEXIS 5334 (S.D.N.Y. April 24, 1995) (stipulation or bifurcation); United States v. Bodie, 990 F.Supp. 1419 (S.D.Fla.1997) (bifurcation). At least two courts have required a severance. See United States v. Singh, 261 F.3d 530 (5th Cir.2001); United States v. Gunn, 968 F.Supp. 1089 (E.D.Va.1997).

These various approaches all have pluses and minuses from the point of view of good judicial administration. Absent some agreement that would allow the trier of fact as to the CIP count to rely on the evidence produced at the trial of the other counts, severance or bifurcation may require two, largely duplicative, trials. It also raises the prospect either of inconsistent verdicts or a collateral estoppel/double jeopardy bar. If the first jury convicts on a possession count and the second jury (or judge) acquits on the CIP count, even on uncontested evidence of the defendant’s requisite status, the law would require that the inconsistent verdicts be accepted; the acquittal on the CIP count could not be ignored.

If the jury were to acquit on the possession charge and there is no independent evidence of possession, the issue of inconsistent verdicts would probably not even arise; the question in that circumstance would be whether, on collateral estoppel/double jeopardy principles, a second trial could even take place. 1 The procedure used here, of a simultaneous trial, *421 raises the same prospects, of the jury convicting and the judge acquitting or of the jury acquitting and the issue being raised of what the judge may then do. That issue, it seems to me, is better resolved by holding that, on collateral estoppel/double jeopardy principles, the judge may not proceed but must dismiss the CIP count, rather than allowing the judge to proceed with a trial, knowing that his or her only option is to acquit, regardless of how the judge actually views the evidence.

The point is that the problem we address here can arise whenever, by any procedure, the jury does not resolve the CIP charge together with and at the same time as the other possession offense, and, when that occurs and the jury acquits, the problem is really one of collateral estoppel/double jeopardy. If the issue is approached that way, the procedure used here or a bifurcated trial approach has much to commend it; it saves time and judicial resources without any prejudice to the defendant. Had the jury in this case convicted on Counts 5, 6, and 7, there would be no impediment to the judge convicting on Counts 8 and 9. If, as occurred, the jury acquitted, that would end the matter, even if there had been a severance or Joshua type of bifurcation.

Because I would approach the issue as one of collateral estoppel/double jeopardy, I do not agree with Judge Harrell that appellant waived his right to insist that Counts 8 and 9 be dismissed. The question is not whether the defendant waived his right to a jury trial on Counts 8 and 9; clearly, he did. *422 The issue is whether he waived his right against double jeopardy.

Although collateral estoppel/double jeopardy may, in some instances, be waived, where the choice is either to allow otherwise inadmissible and prejudicial evidence to be admitted or to insist on a bifurcation, severance, or procedure such as that employed here, I do not believe that the bar of waiver is appropriate. By insisting on a procedure that would preclude the prejudicial evidence from being admitted, the defendant does not waive his/her right to a dismissal of the CIP count(s) in the event of an acquittal on a possession charge. It would be wholly impermissible to make a defendant choose between one right (to preclude the admission of unduly prejudicial evidence) and another (double jeopardy).

. There are circumstances in which a second trial on the CIP charge and a guilty verdict on that charge would be permissible. As here, the *421 substantive charge may be an aggravated assault with a handgun, and the evidence regarding the defendant’s commission of that crime may be in sharp dispute. There might also be evidence, however, that, in its investigation of the assault, the police searched the defendant at a later time and place and found him in possession of a gun. Acquittal on the assault charge could well be based on the jury's doubt that the defendant committed the assault and would therefore not necessarily require acquittal on the CIP charge, which could rest on the later possession. In this case, there was no such independent evidence. The only evidence connecting appellant to a regulated firearm was that pertaining to the shooting.