Carl Franklin Burnside v. State of Maryland
No. 71
Court of Appeals of Maryland
July 11, 2018
Opinion by Greene, J.
Carl Franklin Burnside v. State of Maryland, No. 71, September Term, 2017. Opinion by Greene, J.
CRIMINAL LAW — EVIDENCE — PRIOR CONVICTION IMPEACHMENT — The Court of Appeals held, consistent with Dallas v. State, 413 Md. 569, 993 A.2d 665 (2010), that a trial court should make a preliminary ruling regarding the admission of a prior conviction, when the trial court has appropriate means of determining how a defendant might testify and it is apparent that a delayed ruling would likely cause a chilling effect on the defendant’s constitutional right to testify.
CRIMINAL LAW — EVIDENCE — MARYLAND RULE 5-609 — The Court of Appeals held that the trial court failed to exercise its discretion, thereby committing an abuse of discretion, when it refused to conduct a Maryland Rule 5-609 balancing test prior to the defendant’s election to testify.
CARL FRANKLIN BURNSIDE v. STATE OF MARYLAND
No. 71
IN THE COURT OF APPEALS OF MARYLAND
Filed: July 11, 2018
September Term, 2017
______________________________________
CARL FRANKLIN BURNSIDE
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
Watts and Getty, JJ., concur and dissent.
___________________________________
Filed: July 11, 2018
Circuit Court for Washington County
Case No. 21-K-16-052453
Argued: May 2, 2018
In
I.
Facts
The facts presented at trial are as follows. On April 4, 2016, shortly after midnight, Deputy Kyle Snodderly stopped a vehicle operating with only one illuminated headlight in Hagerstown, Washington County, Maryland. There were two individuals in the vehicle, the driver, Nicholas Knight, and Petitioner, Carl Burnside, who sat in the front passenger seat. Mr. Knight produced a driver’s license that authorized him to drive only to and from his place employment. Deputy Snodderly testified that Petitioner produced identification
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and informed Deputy Snodderly that he may have had outstanding traffic warrants. The vehicle was registered to a Joey Jones in Philadelphia, Pennsylvania. Petitioner informed the deputy that Mr. Jones was his cousin, and Mr. Knight informed Deputy Snodderly that he was helping Mr. Burnside to relocate from Philadelphia to Hagerstown, Maryland.
With regard to the initial traffic stop, Deputy Snodderly testified that he became suspicious1 about the occupants in the vehicle because he did not observe any items in the vehicle—other than a dirty fish tank—that were consistent with Mr. Knight’s statement that he was helping Petitioner move. Deputy Snodderly’s warrant check confirmed that Petitioner had an outstanding warrant for driving without a license. Upon confirmation, Deputy Snodderly called for backup and placed Petitioner in custody and searched Petitioner incident to the arrest. Shortly thereafter, Deputy Jasen Logsdon arrived on the scene as backup. The search of Mr. Burnside produced $5,169.69 cash in mostly $20 bills, and a cell phone. Despite Mr. Burnside’s statement that some of the cash was for his rent, and some of it was money he won at a casino,2 Deputy Logsdon requested a K-9 unit to conduct a “free air sniff” of the vehicle because of the large amount of cash recovered from Petitioner, which apparently is typical of “people that partake in drug sales [and] distribution.”
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Officer Curtis Kelley arrived on the scene with his K-9 partner, Jackie. Jackie
indicated a positive alert for a controlled dangerous substance near the trunk of the car.
Mr. Knight was asked to step out of the vehicle upon Jackie’s positive alert. Mr. Burnside
also informed one of the officers that there was a marijuana cigarette in the ashtray of the
vehicle. The vehicle search recovered the partially smoked marijuana cigarette, three
hypodermic syringes associated with heroin usage, a metal spoon with “white powdery
residue on the bowl and black burn marks on the bottom side,” a large quantity of Ziploc
baggies, each containing heroin or
Deputy Logsdon testified that he searched Mr. Knight twice; the first search revealed nothing and the second search revealed an orange syringe cap.
Mr. Knight was called as a State witness in Mr. Burnside’s criminal proceedings. On direct examination, Mr. Knight testified that he was charged with intent to distribute heroin and crack cocaine, with possession of controlled paraphernalia, and for driving on a restricted license. He testified that he entered a plea agreement with the State in which he pled guilty to possession of controlled paraphernalia, i.e., the syringes recovered from the vehicle, in exchange for “pre-trial sentencing and probation.” He testified that he was addicted to drugs and that he was participating in a court-ordered drug rehabilitation program. On cross-examination, he testified that his possession with intent to distribute
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charges were dropped in exchange for his testimony against Mr. Burnside and that his sentencing for the possession of paraphernalia was delayed until after Mr. Burnside’s trial. Mr. Knight explained that the delayed sentencing would allow the State to observe and evaluate his testimony against Mr. Burnside. When asked on cross-examination if he had ever sold heroin or crack cocaine, he replied in the negative. Finally, when defense counsel asked Mr. Knight if he knew Jason Marshall, William Bucklew, or Scott Dorman, Mr. Knight denied knowing all three individuals.
The Defense presented three witnesses: Jason Marshall, William Bucklew, and Scott Dorman. Each of the individuals testified to purchasing drugs from Mr. Knight. Mr. Marshall testified that he purchased heroin from Mr. Knight two years before the time of his testimony, and that a friend of his purchased drugs from Mr. Knight. Mr. Bucklew testified that he purchased heroin from Mr. Knight in February or March 2016. Mr. Dorman testified that he purchased heroin and what he thought to be crack cocaine from Knight six to seven months before the time of his testimony. Mr. Burnside did not testify in his defense.
Mr. Burnside’s Theory of Defense
For a trial judge to conduct an appropriate balancing test, he or she must have some knowledge regarding the nature of a defendant’s testimony, which is usually illuminated by the defendant’s theory of defense. The State contends that Petitioner’s theory of the case was too ambiguous for the trial judge to conduct an informed balancing test prior to Petitioner’s testimony. The record suggests that the Defense’s theory centered around the fact that there was another individual, Mr. Nicholas Knight, in the vehicle with Petitioner,
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and that Mr. Knight could have been in actual or constructive possession of the drugs recovered from the vehicle. During the opening statement the Defense encouraged the jury to
pay attention to the details[]. . . . because once Nicholas Knight was taken into custody himself, and they recovered a cell phone from him as well [as] [] forty-five dollars in cash. . . . [and] three caps to the syringes that were found right next to him, the driver’s side and the console.
Defense counsel explained to the jury that:
[T]he evidence . . . will show that Mr. Knight had possession of the
key to the
* * *
The evidence will show that Mr. Knight was charged with the exact same offenses . . . . [b]ut he was able to avoid felony convictions and significant prison time by simply walking into the courtroom . . . [and] point[ing] the finger at [Mr. Burnside]. By cutting a deal . . . he gets to walk out that door and go home.
Later, during a bench conference regarding the admission of a receipt into evidence, defense counsel objected to its admission partly “because obviously the[] central issue here for the jury to decide is [] whose drugs are they.” To which the Court replied, “Right.”
When viewed collectively, the defense attorney’s comments during opening statement and the bench conference, and the defendant’s three witnesses, outline the theory of the defense in this case. The crux of the defense theory was to cast reasonable doubt on Mr. Burnside’s connection to the drugs and to suggest that Mr. Knight could have possessed the drugs with the intent to distribute.
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Mr. Burnside’s Decision to Not Testify
After Marshall, Bucklew, and Dorman testified, defense counsel advised Mr. Burnside, out of the hearing of the jury, of his Fifth Amendment right against self-incrimination and informed him that because he had a prior conviction for possession with intent to distribute a controlled dangerous substance,4 she would ask the court to conduct a balancing test “to determine whether or not the State would be allowed to use [] [that] prior conviction against [him].” When asked if he wished to testify in light of the potential impeachment, Mr. Burnside replied:
[BURNSIDE]: I just know that if my past is going to be used against me, then I would not like to be testifying because it would be bias, it would be biased [sic] me to the charges I’m facing right now.
[DEFENSE COUNSEL]: You are saying you would be afraid you would be prejudiced?
[BURNSIDE]: Yes
[DEFENSE COUNSEL]: I believe he has a conviction your Honor. The only thing is the State has served us with mandatory minimum notice as well as subsequent offender notice and they have attached a certified docket entry for possession with intent. It does not say what substance it is, [] but there is a conviction for that offense. And I can’t recall if it was 2011 or 2012 when it occurred.
[BURNSIDE]: 2012.
[DEFENSE COUNSEL]: Okay. Okay. And I would just ask this
Court, if - - if the [c]ourt would conduct a balancing test. I would agree that
it is [] within the purview of crimes that are involving dishonesty. . . . I would
agree that it’s been for the past 15 years. But part three of that test, according
to Jackson would be whether or not it would be more prejudicial than it
would be probative. We would argue that [] in
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[c]ourt were to allow that, the State to impeach him with a prior conviction that the jury would base their decision solely on his previous conviction and not based upon the evidence presented here today.
[THE STATE]: Your honor, I do have the case that uh (inaudible) if he takes the stand and he opens the door than he would be subject to impeachment. . . .
[THE COURT]: That’s - - It is a balancing test but I don’t think I need to make the balancing decision before he testifies. I think it’s his decision whether he wants to testify or doesn’t want to testify. If he takes the stand and the State attempts to bring up his prior conviction then we will have a determination at that time, but I’m not going to preliminarily make that decision.
[BURNSIDE]: I choose to exercise my Fifth Amendment right to remain silent and not testify due to his Honor’s previous objections for anything I say on our [sic] behalf.
[DEFENSE COUNSEL]: So, it is your decision not to testify.
[BURNSIDE]: Yes, I don’t want to testify. I won’t get no [sic] justice.
The defense rested its case after Mr. Burnside elected not to testify. On September 16, 2016, after the jury heard testimony from the three arresting officers, a drug distribution expert, a controlled dangerous substances expert, three defense witnesses, and reviewed physical evidence including photos of the confiscated drugs, the jury convicted Mr. Burnside of possession with intent to distribute heroin and possession of cocaine. He was sentenced to 15 years, with the first 10 to be served without the possibility of parole. The jury acquitted him of possession with intent to distribute cocaine, and the State filed a nolle prosequi5 to the charge of possession of drug paraphernalia.
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Procedural History
Mr. Burnside noted a timely appeal to the Court of Special Appeals raising five issues for review with only one relevant to our holding today. Burnside v. State, No. 2182, Sept. Term, 2016 (2017). Burnside contended that the trial court failed to exercise its discretion when it chose not to give an advance ruling on the admissibility of his prior conviction. Id. Mr. Burnside argued that the trial court’s failure to exercise its discretion amounted to an abuse of discretion, given his desire to make an informed decision on whether he should testify. Id. The State contended that Mr. Burnside failed to preserve the issue for review because defense counsel did not object when the trial court declined to conduct the balancing test. Id. In an unreported opinion, the Court of Special Appeals affirmed the conviction holding, among other things, that it would have been “premature” for the trial court to engage in a balancing test without observing Mr. Burnside’s testimony first. Id.
In his petition for writ of certiorari, Mr. Burnside presented the following questions:
1. Where Petitioner was on trial for a felony drug offense and his theory of
defense was clear and consistent throughout the trial, did the trial court
abuse its discretion, or fail to properly exercise discretion, in refusing to
rule upon the admissibility for impeachment purposes of Petitioner’s
2. Did the Court of Special Appeals misapply the harmless error standard, as recently reiterated by this Court in Porter v. State, 455 Md. 220 (2017), in finding that the trial court’s errors in permitting the impeachment of a defense witness was harmless beyond a reasonable doubt?
We granted certiorari. Burnside v. State, 456 Md. 521, 175 A.3d 150 (2017). For reasons cited herein, we hold that the trial court failed to exercise its discretion, and in doing so,
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abused its discretion by refusing to conduct a balancing test before Mr. Burnside’s election to testify or remain silent. Because we answer the first question in the affirmative, we do not reach the second. Accordingly, we reverse the judgment of the intermediate appellate court.
II.
A Defendant’s Right to Testify
Maryland has long recognized the importance of preserving a defendant’s right to testify. This right is guaranteed both federally and in Maryland by the Fourteenth Amendment Due Process Clause, the Sixth Amendment Compulsory Process Clause, the Fifth Amendment right against compelled testimony (with the Sixth and Fifth Amendment being applied to the states by the Fourteenth Amendment), and in Articles 21 and 22 of the Maryland Declaration of Rights. Dallas v. State, 413 Md. 569, 588–90, 993 A.2d 655, 666–67 (2010) (C.J. Bell, dissenting); Burral v. State, 352 Md. 707, 730–31, 724 A.2d 65, 76 (1999); Morales v. State, 325 Md. 330, 335, 600 A.2d 851, 853 (1992). A defendant’s right to testify “is a significant one and must be made with a basic appreciation of what the choice entails.” Morales, 325 Md. at 335, 600 A.2d at 853. That choice entails and ensures a defendant’s right to “present his own version of events in his [or her] own words.” Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 2709, 97 L. Ed. 2d 37, 47 (1987). “A defendant’s opportunity to conduct his own defense, [however] . . . is incomplete if he may not present himself as a witness.” Id. Given the constitutional nature of a defendant’s right to testify, the decision whether to testify must be made knowingly and voluntarily.
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Morales, 325 Md. at 336–38, 600 A.2d at 854; Winters v. State, 434 Md. 527, 540, 76 A.3d 986, 993 (2013).
III.
The Balancing Test
A competing set of interests exists between this “fundamental constitutional right” to testify in one’s own defense and the State’s right to impeach a defendant by introducing prior criminal convictions. Dallas, 413 Md. at 590, 993 A.2d at 667; Rock, 483 U.S. at 52, 107 S. Ct. at 2709, L. Ed. At 46; see Maryland Rule 5-609 (a derivative of Federal Rule of Evidence 609). Maryland Rule 5-609 was promulgated with the purpose of limiting the danger of prejudice by “impos[ing] limitations on the use of past convictions in an effort to discriminate between the informative use of past convictions to test credibility, and the pretextual use of past convictions where the convictions are not probative of credibility but instead merely create a negative impression of the defendant.” Cure v. State, 195 Md. App. 557, 575, 7 A.3d 145, 155 (2010), aff’d, 421 Md. 300, 26 A.3d 899 (2011) (quoting Jackson v. State, 340 Md. 705, 715–16, 668 A.2d 8, 13 (1995)).
The rule was crafted with the understanding that, absent those limitations, a jury could potentially convict a defendant based on the defendant’s criminal history or simply “because [it] thinks the defendant is a bad person.” Id. (quoting Jackson v. State, 340 Md. 705, 715, 668 A.2d 8, 13 (1995)). A defendant’s prior criminal conduct could compel a jury to believe that the defendant “is not entitled to a favorable verdict,” and that “if the defendant is wrongfully found guilty, no real harm is done.” Hannah v. State, 420 Md. 339, 347, 23 A.3d 192, 196 (2011) (quoting Jackson v. State, 340 Md. 705, 715, 668 A.2d
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8, 13 (1995) (recognizing that “the defendant may be forced to choose between testifying in her or his own defense with the risk of being convicted by the jury’s misuse of impeachment evidence as propensity evidence, on one hand, and not testifying and foregoing a defense, on the other.”).
In Cure, the Court of Special Appeals explained Rule 5-609’s three-part test for determining the admissibility of prior convictions for impeachment purposes:6
First, the prior conviction must be within the “eligible universe” of crimes, which consists of two categories: infamous crimes and other crimes relevant to a witness’s credibility7 . . . . The second step requires a determination by the trial court that the prior conviction is less than 15 years old, not reversed on appeal, or subject to a pardon or pending appeal. . . . If the first two steps are satisfied, the trial court must then determine whether “the probative value of the prior conviction outweighs the danger of unfair prejudice to the witness or objecting party.”
Cure, 195 Md. App. at 575–76, 7 A.3d at 155 (internal citations omitted). When a trial judge engages in the balancing test, appellate courts “accord[] every reasonable presumption of correctness,” and will not “disturb that discretion unless it is clearly
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abused.” Id. at 576, 7 A.3d at 156. We have, however, held that “[t]he failure to exercise discretion when its exercise is called for is an abuse of discretion.” Johnson v. State, 325 Md. 511, 520, 601 A.2d 1093, 1097 (1992).
Had the trial judge conducted a balancing test concerning Mr. Burnside’s prior conviction, the judge likely may have considered the following factors: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the defendant’s credibility.” Cure, 195 Md. App. at 576, 7 A.3d at 155 (quoting Jackson v. State, 340 Md. 705, 717, 668 A.2d 8, 14 (1995) (explaining that “[t]hese factors ‘should not be considered mechanically or exclusively,’ but rather should be viewed as ‘a useful aid to trial courts in performing the balancing exercise mandated by the Rule.’” (citing Jackson v. State, 340 Md. 705, 717, 668 A.2d 8, 14 (1995))).
This Court has further recognized the prejudicial danger in admitting evidence of
prior convictions for the same or similar offenses to that of the current charge. Jackson v.
State, 340 Md. 705, 668 A.2d 8 (1995). While it is not always an abuse of discretion, the
Court of Appeals
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such cases. Jackson, 340 Md. at 715, 668 A.3d at 13 (quoting Ricketts v. State, 291 Md. 701, 703–04, 436 A.2d 906, 907–08).
In Dallas, a defendant was convicted of possession of cocaine with intent to distribute. 413 Md. at 571, 993 A.2d at 656. At trial, the defendant sought a ruling that prevented the State from impeaching the defendant using his prior convictions of distribution and possession with intent to distribute cocaine. Id. The trial judge initially denied the defendant’s request, concluding that the convictions were relevant to credibility, and therefore, admissible for the purposes of impeachment. Id. at 573, 993 A.2d at 657. The trial judge ultimately reversed his ruling on the basis that the defendant “hadn’t said anything,” and that he would “need to hear what [the defendant] ha[d] to say,” concluding that the “proper procedure . . . was to make a ruling after [the defendant] testified and before [] any cross-examination.” Id. at 574, 993 A.2d at 657–58. The trial judge denied the State’s offer to accept a proffer of Mr. Dallas’s testimony, despite the defendant’s “clear . . . theory of defense,” stating that the defendant’s actual testimony was necessary to render his ruling. Id. at 573, 993 A.2d at 657. The defendant chose not to testify and subsequently was convicted. Id. Dallas appealed, arguing that the “[trial] court’s deferral of its ruling on the admissibility of the impeachment evidence impermissibly chilled his right to make a free election to testify or remain silent.” Id. at 572, 993 A.2d at 656.
The Court of Special Appeals affirmed the conviction, holding that Dallas’s issue was not preserved because he chose not to testify. Id. at 575, 993 A.2d at 658. We affirmed, recognizing that Dallas’s “contention [was] amenable to appellate review,” and
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held that the trial judge did not abuse his discretion by deferring his ruling on the admissibility of the impeachment evidence. Id. at 584, 588, 993 A.2d at 664, 666.
The Dallas Court presumed that the trial judge, in choosing to wait until Mr. Dallas testified, could have reasonably imagined various scenarios, some of which would have warranted admitting the evidence, and others that would have warranted not admitting the evidence. Id. at 587, 993 A.2d at 665–66. For example, the trial judge could have envisioned that, had [Dallas] taken the stand, he might not have confined his testimony (consistent with counsel’s opening statement) to a denial of an intent to distribute the drugs found in his possession; he might instead have testified that he had never before distributed illegal drugs. Had [Dallas’s] testimony been consistent with defense counsel’s opening statement, then the trial court might have decided that evidence of the prior convictions carried a risk of unfair prejudice to [Dallas]. Had [Dallas] testified more expansively, then the court might have decided that the State should be permitted to impeach him with the prior convictions.
Id. We held that, “[g]iven the plausibility of either scenario, the court was not required to
rule on the motion without first hearing [Dallas’s] direct testimony.” Id. at 588, 993 A.2d
at 666. We further explained that, had Mr. Dallas noted that the court’s delayed ruling
“chilled his right to make an election,” then the trial court “might
Despite our particular holding in Dallas, we reiterated that:
Many are the times when a trial court can and, therefore, should decide a motion in limine involving a Rule 5–609 issue before the defendant makes the election. For example, . . . the trial court certainly can recognize when the risk of unfair prejudice of the proposed impeachment evidence far outweighs its probative value, no matter how the defendant might testify. Moreover, the court may be satisfied that it has a sufficient basis upon which to make an in limine ruling without hearing the defendant’s direct testimony if the court has learned, through other means, how the defendant is likely to testify. For example, a court may hear admissions that the defense makes
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during the defense’s opening statement, or the court may accept a proffer of the defendant’s direct testimony. In any of these circumstances, fairness to the defendant augurs in favor of the trial court’s ruling on the motion before the defendant elects whether to testify or remain silent.
Id. at 586, 993 A.2d at 665 (emphasis added) (footnotes omitted).
In Jackson, we dealt with a similar issue concerning the use of prior convictions to impeach a defendant who was on trial for a crime similar to his prior conviction. 340 Md. at 707, 668 A.2d at 9. In Jackson the defendant, Robert M. Jackson, stood trial for theft. Id. Mr. Jackson filed a pre-trial motion in limine to exclude a probation before judgment disposition for a 1991 theft as well as a conviction for another 1991 theft. Id. at 709, 668 A.2d at 10. The trial court granted the motion in limine regarding the probation before judgment disposition but denied the motion regarding the theft conviction. Id. In his testimony, Mr. Jackson denied any involvement with the crime and gave an alibi which was corroborated by two witnesses. Id. at 709–10, 668 A.2d at 10. On cross-examination, Mr. Jackson admitted to having a prior conviction, but stated that he did not know the name of the offense. Id. at 710, 668 A.2d at 11. The State introduced a certified copy of his theft conviction. Id. Mr. Jackson appealed, arguing “that the similarity of the prior crime to the charged offense rendered the prior conviction so prejudicial as to outweigh any probative value that it may have had.” Id. at 711, 668 A.2d at 11.
We disagreed, holding that the trial court did not abuse its discretion by admitting the prior conviction because “the similarity of the prior conviction to the offense charged does not, absent other considerations, require exclusion.” Id. at 718, 668 A.2d at 14. We adopted the view that:
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[e]vidence of a prior conviction for a crime that is similar or identical to the charged crime is subject to the balancing of its probativeness against its potential for unfair prejudice. Although the [balancing] guidelines include a factor related to the degree of similarity between the prior conviction and the charged offense, this is only one consideration and should not be viewed in isolation.
Relying on Mahone, we observed that four of the five Mahone factors8 “weighed
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centrality of the defendant’s credibility, recognizing that they “underlie [] Rule [5-609,]: [by] balancing the defendant’s right to testify against the State’s right to impeach the witness on cross-examination.” Id. After balancing the competing interests inherent in factors four and five, we concluded that because Mr. Jackson’s credibility was “central to the case,” the balancing of the two factors weighed in favor of admission. Id. at 722, 668 A.2d at 16.
We think it necessary to highlight the two critical differences between Jackson and the instant case. Firstly, in Jackson we were called upon to determine if a trial court abused its discretion by admitting the prior conviction, not whether the trial court’s delay in conducting a balancing test constituted an abuse of discretion. Id. Secondly, the defendant in Jackson testified that he was not involved in the crime, and in the instant case Mr. Burnside elected not to testify. Id. at 708, 668 A.2d at 9.
IV.
It remains for us to determine whether the trial court abused its discretion in choosing to delay an application of Rule 5-609’s balancing test. We have declared that “a failure to exercise discretion when its exercise is called for is an abuse of discretion.” Johnson, 325 Md. 511, 520, 601 A.2d 1093, 1097 (1992). Furthermore, “[s]o long as the [trial judge] applies the proper legal standards and reaches a reasonable conclusion based on the facts before it, an appellate court should not reverse a decision vested in the trial
“cause the defendant not to testify,” and the greater need for the “jury [to] hear the defendant’s version of the case than to allow him [or her] to be impeached.” State v. Zornes, 831 N.W.2d 609, 628 (Minn. 2013).
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court’s discretion merely because the appellate court reaches a different conclusion.” Univ. of Maryland Med. Sys. Corp. v. Kerrigan, 456 Md. 393, 402, 174 A.3d 351, 356 (2017). With these standards guiding our review, in this case we must determine if the trial court’s decision to not make an advanced ruling amounted to an abuse of discretion.
As a preliminary matter, we discuss whether the issue has been preserved for our
review. The State contends that the issue is not preserved because “defense counsel never
asked the trial court to make an advance ruling.” Mr. Burnside contends that the issue is
preserved because “his counsel’s and his own protests put the trial court on notice that the
defense wanted a ruling prior to making an election,” and because the issue was decided
by the trial court. We agree with Mr. Burnside that defense counsel sought an
In Dallas, we recognized that there are circumstances where “fairness to the
defendant augurs in favor of the trial court’s ruling on the motion before the defendant
elects whether to testify or remain silent.” 413 Md. at 586, 993 A.2d at 665. The facts in
the instant case demonstrate such a circumstance. Mr. Burnside’s theory of defense was
I agree with the Majority that the issue is preserved for our review. Specifically, Maryland Rule 4-323(c) requires only that a party make the court aware of the desired action when the ruling is one other than admitting evidence. See Reed v. State, 353 Md. 628, 640 (1999) (quoting Prout v. State, 311 Md. 348, 356 (1988)). The defense counsel in the case sub judice clearly stated “I would just ask [] if the Court would conduct a balancing test . . . my fear would be that if the Court were to allow that, the State to impeach him with a prior conviction that the jury would base their decision solely on his previous conviction and not based upon the evidence presented here today.” This undoubtedly made the trial court aware of the action the defendant desired: that the trial judge conduct a
I write separately because I respectfully disagree with the Majority’s assessment that the circumstances of this case required the trial judge to rule on the admissibility of the prior conviction impeachment evidence by conducting a
In Dallas, this Court directly addressed the question of whether a trial court may defer its ruling on a motion in limine to exclude prior convictions impeachment evidence until after the defendant testified. 413 Md. at 585-86. Contrary to the outcome here, this Court held that the trial court did not abuse its discretion in deferring its
On appeal, the petitioner argued that the trial court abused its discretion when it deferred its ruling on the admissibility of the impeachment evidence in large part because this type of determination includes a constitutional dimension related to a defendant’s Fifth Amendment right to testify. Id. at 576-84. Initially, this Court held that “a trial court’s decision to await a defendant’s testimony before deciding whether to allow proposed prior conviction impeachment evidence does not impermissibly chill the defendant’s right to testify. Therefore, a decision to defer ruling does not present a question of constitutional dimension.” Id. at 584. As such, the Dallas Court distinguished its case from Luce v. United States, 469 U.S. 38 (1984).
In discussing whether the trial judge failed to exercise his discretion under the mandates of
However, we then qualified this holding by stating:
That said, trial courts should rule on motions in limine as early as practicable, which often is before the defendant elects whether to testify or remain silent.
Many are the times when a trial court can and, therefore, should decide a motion in limine involving a
Rule 5–609 issue before the defendant makes the election. For example, when it is clear that a prior conviction is ineligible for impeachment underRule 5–609 , the court need not hear the defendant’s testimony to know how to rule on a motion to exclude that proposed impeachment evidence. Similarly, the trial court certainly can recognize when the risk of unfair prejudice of the proposed impeachment evidence far outweighs its probative value, no matter how the defendant might testify. Moreover, the court may be satisfied that it has a sufficient basis upon which to make an in limine ruling without hearing the defendant’s direct testimony if the court has learned, through other means, how the defendant is likely to testify. For example, a court may hear admissions that the defense makes during the defense’s opening statement, or the court may accept a proffer of the defendant’s direct testimony. In any of these circumstances, fairness to the defendant augurs in favor of the trial court’s ruling on the motion before the defendant elects whether to testify or remain silent.
Id. at 585–86 (emphasis added). The Dallas Court, therefore recognized certain circumstances in which a trial judge should conduct a
The differences between this case and the circumstances identified in Dallas are several and significant. First, Mr. Burnside’s prior conviction was not inadmissible under
The instant circumstances also do not give rise to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of Mr. Burnside’s prior conviction regardless of how he testified. Had Mr. Burnside elected to testify, his credibility would have been a crucial matter for the jury to determine, and evidence that he was a convicted felon would have been a highly probative piece of impeachment evidence. To be sure, evidence that Mr. Burnside had been convicted of the same type of crime for which he was on trial, i.e., possession of a controlled dangerous substance with the intent to distribute, could have caused a danger of unfair prejudice. This case was not, however, a scenario in which it was immediately clear that the danger of unfair prejudice would “far outweigh[ the] probative value[,]” as would be the case where a defendant who is on trial for shoplifting has a prior conviction for rape. Dallas, 413 Md. at 586 & n.10.
Furthermore, the defendant in the case sub judice did not file a pre-trial motion in limine requesting the trial judge conduct a balancing test under
But most importantly, the circuit court had no other reliable means for “learn[ing] . . . how [Mr. Burnside was] likely to testify.” Id. at 586. During Mr. Burnside’s opening statement, aside from mentioning that the State charged Nicholas Vincent Knight (the Toyota’s driver) with the same crimes as Mr. Burnside, his counsel did not state or imply that Mr. Knight was a drug dealer. During Mr. Knight’s cross-examination, Mr. Burnside’s counsel asked him whether he had ever sold heroin or cocaine, and whether he knew Mr. Burnside’s three witnesses: Jason Tyler Marshall, William Joseph Bucklew, and Scott Dorman. In each instance, Mr. Knight answered in the negative. Mr. Marshall testified that he had bought heroin, and possibly cocaine, from Mr. Knight; Mr. Bucklew testified that he had bought heroin from Mr. Knight; and Mr. Dorman testified that he had bought heroin and cocaine from Mr. Knight.
Under these circumstances, contrary to Mr. Burnside’s contention, it was not “very [] easy to predict” that he would have testified that Mr. Knight was a drug dealer, and that the cocaine and heroin in the Toyota belonged to Mr. Knight. It would have been entirely consistent with Mr. Burnside’s opening statement, as well as his witnesses’ testimony, for him to simply testify that he did not know who owned the cocaine and heroin, without testifying that Mr. Knight was a drug dealer. Alternatively, Mr. Burnside could have conceded that the cocaine and heroin belonged to him, but denied that he intended to distribute them. Cf. id. at 573 (During the defendant’s opening statement, his counsel acknowledged that he possessed cocaine and marijuana, but denied that he intended to distribute the cocaine.).
In sum, regardless of whether the trial judge expressly observed as much, Mr. Burnside could have testified to any number of defense theories, including: (1) that Mr. Knight was a drug dealer who owned the cocaine and heroin; (2) that Mr. Burnside did not know who owned the cocaine and heroin; or (3) that Mr. Burnside owned, but did not intend to distribute, the cocaine and heroin. Under any of these possible scenarios, Mr. Burnside could have also testified that he had never distributed illegal drugs before. In that case, his prior conviction for possession of a controlled dangerous substance with the intent to distribute would have likely been admissible. Cf. id. at 587 (If the defendant “testified that he had never before distributed illegal drugs . . . , then the [trial] court might have decided that the State should be permitted to impeach him with [his] prior convictions” for distribution of cocaine and possession of cocaine with the intent to distribute.). Just as we explained in Dallas, “the trial court, not unreasonably envisioned that, had Petitioner taken the stand, he might not have confined his testimony” to the theory of defense established in his counsel’s opening statement, the trial judge in this case was presented with the same scenario. Id.
Therefore, the case sub judice did not include any of the circumstances that this Court found in Dallas to weigh in favor of a
Instead, this case is on all fours with the ultimate holding in Dallas. Just as it was “plausibl[e]” that the defendant in Dallas could have testified that he had never distributed illegal drugs, it is equally plausible that Mr. Burnside could have done the same. Like the defendant in Dallas, Mr. Burnside “did not complain at the time that the [circuit] court’s delay [in determining whether his prior conviction was admissible] chilled his right to make an election” as to whether to testify. Dallas, 413 Md. at 587, 588. And, as in Dallas, because the circuit “court could not be certain what Mr. Burnside’s testimony would be until the circuit court heard it . . . , the circuit court was not required to” hear a proffer of his testimony. Id. at 569, 587 (cleaned up).
Although the trial judge did not explicitly detail why he determined that he needed to hear testimony before conducting a balancing test, the record need only show that the discretion was in fact exercised. See State v. Woodland, 337 Md. 519, 526 (1995) (“Although the trial judge did not expressly describe the considerations that led her to conclude that [the defendant’s] drug conviction was admissible to impeach, we find that she engaged in the necessary balancing before admitting the evidence. There is no requirement that the trial court’s exercise of discretion be detailed for the record, so long as the record reflects that the discretion was in fact exercised.”). Here, the trial judge specifically announced, “It is a balancing test but I don’t think I need to make the balancing decision before he testifies . . . I’m not going to preliminarily make that decision,” indicating that he was using his discretion to defer conducting a
Even if the Majority’s intention is to add to the circumstances weighing in favor of requiring a
Therefore, it is unclear under the Majority’s reasoning whether a defense attorney even has to request a pretrial ruling as to the admissibility of impeachment evidence under
If any of the factual circumstances identified in Dallas had occurred in the case below, the Majority’s reasoning might be correct. However, by simply holding that the trial judge abused his discretion by waiting to conduct the balancing test given the “facts and circumstances of Mr. Burnside’s case,” this Court is effectively requiring the trial judge to sua sponte request a proffer of the defendant’s testimony or otherwise make a determination as to admissibility of evidence under
In this case, the Majority recognizes that all the trial judge had before him was a general theory of defense, which was provided by way of an opening statement and three defense witnesses. The trial judge was not in a position to guess what Mr. Burnside’s testimony might be nor was he required to act sua sponte when the defense counsel failed to request that the trial judge accept a proffer of the defendant’s testimony. See Nelson, 137 Md. App. at 423 n. 5. The general theory of defense that the trial court had before it in this case was certainly insufficient to trigger a duty for the trial court to proceed. See generally Gregg, 377 Md. at 545.
Guided by Dallas, I would hold that the circuit court did not abuse its discretion in declining to determine whether Mr. Burnside’s prior conviction was admissible before he elected whether to testify because none of the circumstances that this Court identified in Dallas are present here. The trial judge was not provided with a pre-trial motion in limine, defense counsel did not make a proffer of the defendant’s testimony, and the trial court had limited information as to the defendant’s testimony at the time the defense requested the balancing test. See Dallas, 413 Md. at 585-86. As such, nothing in the circumstances of this case should make this Court second-guess the trial judge’s decision that he needed to consider the defendant’s testimony before conducting the
The Majority’s holding today is not consistent with this Court’s well-reasoned holding in Dallas. Although the Majority contends otherwise, the Majority also effectively requires trial judges to sua sponte request a proffer of the defendant’s testimony or sua sponte hold a hearing on the balancing arguments in order to avoid being reversed by an appellate court. That was not this Court’s intention in Dallas, in which we identified specific circumstances that weigh in favor of a trial court conducting a
Judge Watts has authorized me to state that she joins this concurring and dissenting opinion.