Hemming v. State
| Decision Date | 26 June 2020 |
| Docket Number | No. 48 September Term, 2019,48 September Term, 2019 |
| Parties | Jonathan HEMMING v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Mark Colvin, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.
Brenda Gruss, Asst. Attorney General (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before: McDonald, Watts, Hotten, Getty, Booth, Biran, Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ.
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).
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 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 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 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 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 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
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