Cure v. State
26 A.3d 899
Md.2011Background
- Writ of certiorari granted to address waiver of appellate review when a defendant testifies and draws the sting of a prior conviction; issue also whether a prior arson conviction is admissible for impeachment; Cure challenges Court of Special Appeals’ application of Brown’s plurality on waiver and argues arson impeachment is either highly probative or should fail Rule 5-609 balancing; Cure testified on direct examination acknowledging the arson conviction after in limine ruling allowing impeachment; trial judge allowed impeachment with arson; Cure’s defense sought to blunt sting by detailing conviction and probation; appellate courts split on waiver post-Ohler but Maryland adopts a limited waiver approach in this case to preserve appellate review of the admissibility ruling; ultimately, trial court’s ruling on arson impeachment is reviewed under Rule 5-609 with a five-factor balancing test; Cure was convicted of drug offenses and the arson conviction was eight years old at impeachment time; Court affirms Court of Special Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver when testifying and drawing sting | Cure waived review by testifying about the conviction. | Drawing the sting preserves appellate review under a narrow Brown exception. | Not waived; limited waiver applies. |
| Admissibility of arson for impeachment under Rule 5-609 | Arson is an infamous crime with probative impeachment value. | Arson’s impeachment value is minimal and risks prejudice; trial court abused discretion. | No abuse; conviction admissible balancing probative value against prejudice. |
Key Cases Cited
- Ohler v. United States, 529 U.S. 753 (U.S. 2000) (waiver rule for preemptive testimony depends on appellate review of in limine ruling)
- Brown v. State, 373 Md. 234 (Md. 2003) (discussed contemporaneous objection waiver and drawing the sting in Maryland)
- Luce v. United States, 469 U.S. 38 (U.S. 1984) (premise that waiver depends on government’s elicitation of testimony)
- Jackson v. State, 340 Md. 705 (Md. 1995) (five-factor Rule 5-609 balancing framework for impeachment evidence)
- State v. Westpoint, 404 Md. 455 (Md. 2008) (articulates framework for Rule 5-609 analysis)
- Brown v. State (dissent), 373 Md. 234 (Md. 2003) (dissent recognizes limited waiver exception adopted by this opinion)