Cure v. State

FREDERICK J. SHARER, J. (Retired, Specially Assigned). A jury sitting in the Circuit Court for Baltimore City convicted Deltavia Cure, appellant, of various violations of the controlled dangerous substances laws. 1 In this appeal, Cure presents a single question for our review: Did the trial court abuse its discretion when it ruled that Mr. Cure could be impeached with a prior conviction for first-degree arson? Because Cure introduced his prior arson conviction in his direct testimony, we shall hold that he waived appellate review of that issue.

Nonetheless, even assuming that the issue is preserved, we discern no abuse of discretion in the trial court’s ruling admitting the prior first-degree arson conviction for impeachment purposes. BACKGROUND Because the factual predicate for the charges against Cure, and his conviction, are not relevant to the issues before us, and because we assume the parties’ familiarity with the facts, we need not recite the facts in detail. Washington v. State, 180 Md.App. 458 , 461 n. 2, 951 A.2d 885 (2008). It is sufficient to note that Cure was arrested by Baltimore City police officers, ⁵⁶² who observed him in what they concluded to be several hand-to-hand drug transactions.

Following Cure’s arrest, officers went to a nearby back yard that they suspected was Cure’s “stash area,” based upon his several visits to that area while under observation. There, they found a plastic bag containing what proved to be controlled substances, namely heroin and cocaine. The Trial — Waiver On the first day of trial, before jury selection began, defense counsel asked the trial court to rule whether the State would be permitted to impeach Cure with two prior convictions, should he subsequently decide to testify in his own defense. The following colloquy between counsel and the court ensued: [DEFENSE COUNSEL]: Mr. Cure has two prior convictions that could be used to impeach him if he decides to testify.

I mean, we haven’t made that decision yet, obviously, and so, I mean we would want a hearing as to whether or not the State would be allowed to use those convictions to impeach him. THE COURT: Well, what are they? [DEFENSE COUNSEL]: So, I didn’t know — one is — they were both when he was a juvenile, but was charged and convicted as an adult. One is attempted murder and the other was arson. [PROSECUTOR]: Your Honor, actually the State doesn’t believe any attempt falls under— THE COURT: Neither do I. [PROSECUTOR]: — falls under, but there was a, let me back up first, again. There was a conviction separately of first degree arson.

The State would like to bring that up and then in that, attempted first degree murder case, there was a conviction for the use of a handgun in the commission of a felony. THE COURT: Well, that’s not an impeachable [sic]. ⁵⁶³ [PROSECUTOR]: That leaves us with the first degree arson, Your Honor. THE COURT: Yeah and the same argument that applies to possession with intent to distribute applies to arson. It’s done secretly, covertly with knowledge that an individual is violating the law.

Essentially, the same reasoning. I’d let that in. [DEFENSE COUNSEL]: Yes, Your Honor, and certainly we would object and my argument would be obviously that the prejudicial effect of an arson would like [sic] so inflame the jury that he couldn’t get a fair trial. THE COURT: That may be prejudicial, but in a legal sense, it’s not. Of course, albiet, did that happen within the last 15 years? [PROSECUTOR]: It did, Your Honor.

I’ll have the exact dates for you in a second. THE COURT: Do you agree it happened within the last 15 years? [DEFENSE COUNSEL]: Yes, Your Honor. [PROSECUTOR]: March of 2001, Your Honor. THE COURT: Mm — hmm and all evidence that’s against the defendant is prejudicial. The question is, is it prejudicial in a legal sense and I don’t believe it is. [DEFENSE COUNSEL]: Yes, Your Honor.

(Emphasis added.) On the second day of trial, after the State rested its case and the court denied the defense motion for judgment of acquittal, defense counsel advised Cure, on the record, of his right not to testify. The advice included the following: [DEFENSE COUNSEL]: Now, do you understand that we’ve already had a hearing on this and [the judge] has ruled that if you testify, the State can ask you about your arson conviction, right, and you understand that the jury can take that into consideration not as to whether you’re guilty of this charge or not. However, they can take that ⁵⁶⁴ into consideration as to whether your testimony is believable or not. Do you understand that? [APPELLANT]: Yes. [DEFENSE COUNSEL]: Now that you know all of that, do you still want to testify? [APPELLANT]: Yes.

Cure then took the stand, and generally denied any participation in the drug activities earlier described by the State’s witnesses. In direct examination, defense counsel elicited the following testimony from Cure about his prior arson conviction: [DEFENSE COUNSEL]: Now, this is not your first brush with the law. In fact, you have a prior conviction, is that correct? [APPELLANT]: Yes, sir. [DEFENSE COUNSEL]: And that conviction is for first degree arson, is that correct? [APPELLANT]: Yes, sir. [DEFENSE COUNSEL]: You’re on probation for that right now, aren’t you? [APPELLANT]: Yes. [DEFENSE COUNSEL]: And you served time for that, didn’t you? [APPELLANT]: Yes. [DEFENSE COUNSEL]: When was that conviction? [APPELLANT]: That was — I actually was convicted March the 7th, 2001. [DEFENSE COUNSEL]: 2001. How old were you at the time that this alleged offense took place? [APPELLANT]: I was 16 at the time. [DEFENSE COUNSEL]: You were 16 years old. [APPELLANT]: Yes, sir. [DEFENSE COUNSEL]: Okay.

So and in fact, you’re on probation to the Violent Offenders Unit— [APPELLANT]: Yeah, it’s the Violence Prevention Unit. ⁵⁶⁵ [DEFENSE COUNSEL]: And what does that mean? [APPELLANT]: Well, basically what it is is people who have been convicted from my understanding, what it is is that people have been convicted of a violent crime, they just implemented this as I believe my PO had told me— [PROSECUTOR]: Objection. THE COURT: Sustained. [DEFENSE COUNSEL]: And how often do you have to report? [APPELLANT]: Every single week. [DEFENSE COUNSEL]: Every single week. [APPELLANT]: And call in twice a week. [PROSECUTOR]: Objection. Relevance. [THE COURT]: Okay. Go ahead.

In his cross-examination, the prosecutor did not question Cure about his prior conviction or his probation status. Cure, however, offered the following, clearly non-responsive, answer to the prosecutor’s very first question to him on cross-examination: [PROSECUTOR]: Sir, how long had you known Mr. McNeil? [ 2 ] [APPELLANT]: Well, as you brought up my incarceration, I was locked up for seven and a half years. So I just— [PROSECUTOR]: Sir, how long had you known Mr. McNeil? [APPELLANT]: He’s my family ... The defense renewed its motion for judgment of acquittal at the close of its case.

The court denied the motion. The court’s instructions to the jury included the following: You had heard evidence that the Defendant had been convicted of a crime. You may consider that evidence in deciding whether the Defendant is telling the truth, but for ⁵⁶⁶ absolutely no other purpose. You must not use that conviction as any evidence that the Defendant committed the crime charged in this case.

The prosecutor did not refer to the prior conviction in closing argument. The jury convicted Cure, as we have indicated. See footnote 1. DISCUSSION Cure contends that the trial court abused its discretion when it ruled that the State could impeach him with his prior arson conviction.

Although admitting that arson was a felony at common law, and thus within the “eligible universe” of convictions that may be used to impeach a witness, he asserts that the probative value of his arson conviction did not outweigh its prejudicial effect. In fact, Cure contends that the impeachment value of an arson conviction is “virtually nonexistent,” arguing that it has little bearing on veracity, while “its potential for prejudice is great.” Although Cure testified about his first-degree arson conviction on direct examination, he now contends that that “does not affect his right to challenge the trial court’s ruling on appeal.” Cure recognizes that, in defeating the State’s waiver argument, he must overcome the decision of the Court of Appeals in Brown v. State, 373 Md. 234 , 817 A.2d 241 (2003), where “Judge Raker announced the judgment of the Court and held that the defendant [who, like Cure, testified on direct examination about a prior conviction] had waived the issue for appellate review.” He attempts to overcome that decision by suggesting that it is not controlling in this case. Instead, he asserts that Judge Wilner’s dissenting opinion in Brown “with respect to the waiver issue ... announced the law of Maryland.” Not surprisingly, the State disagrees with Cure’s view of the precedential value of Judge Wilner’s dissent in Brown , but “acknowledges an ambiguity in the case law on [the waiver] issue.” The State points to Johnson v. State, 9 Md.App. 166, 177 , 263 A.2d 232 (1970), overruled on others grounds by ⁵⁶⁷ Bailey v. State, 263 Md. 424 , 283 A.2d 360 (1971), wherein this Court “observe[d] that if the prior conviction was introduced by the defendant himself rather than by the State, he thereby waives objection.” Although the State contends that Cure waived the issue for appellate review, it nonetheless asserts that the trial court did not abuse its discretion when it ruled that his prior conviction for first-degree arson could be admitted for impeachment purposes. Waiver — Or Not?

Cure raises an interesting question as to the precedential value of the Court’s fragmented opinion in Brown . Does a defendant who, after the trial court rules that a prior conviction may be introduced for impeachment purposes, testifies about the conviction in his direct examination waive the issue for appellate review? The issue in Brown is the precise issue before us in the present case. Calvin Brown was charged with assault.

After the State concluded its case in chief, Brown argued that his prior conviction for possession of a controlled dangerous substance with intent to distribute should not be admitted for impeachment purposes because its probative value was outweighed by the danger of unfair prejudice. Brown, supra, 373 Md. at 236 , 817 A.2d 241 . The trial court ruled that the State could impeach Brown with that prior conviction. Id.

After a co-defendant testified for the defense, Brown took the stand. Id. at 255-56 , 817 A.2d 241 . During direct examination he admitted his previous CDS conviction. Id. at 256 , 817 A.2d 241 .

In response to the State’s question on cross-examination, Brown confirmed the conviction. Id. The jury convicted Brown of second-degree assault. Id. at 235 , 817 A.2d 241 .

On appeal, Brown argued that the trial court erred in ruling that the prior conviction was admissible for impeachment purposes. In an unreported opinion, this Court affirmed the judgment, holding that Brown waived the issue for appellate review when he introduced the evidence of his prior conviction during his direct examination. Calvin Brown v. State of Maryland, No. 1639, September Term, 2000 (filed March 26, ⁵⁶⁸ 2002). (Then Chief Judge Murphy concurred in the judgment on the grounds that the trial court did not abuse its discretion when ruling that the prior conviction was admissible, but he would have held that the issue was preserved for appeal).

The Court of Appeals granted Brown’s petition for writ of certiorari and affirmed. Brown, supra, 373 Md. at 236-37 , 817 A.2d 241 . That affirmance, however, is convoluted. Judge Raker authored the Court’s opinion, in which she noted that “[t]he question we must decide in this case is whether a defendant waives the right to challenge on appeal the propriety of the trial court ruling [on the admissibility of a prior conviction for impeachment purposes] when the defendant introduces the prior conviction in his direct testimony.” Id. at 235 , 817 A.2d 241 .

Judge Raker (joined by Judges Cathell and Battaglia) answered that question in the affirmative, relying in part on the U.S. Supreme Court’s plurality decision in Ohler v. United States, 529 U.S. 753 , 120 S.Ct. 1851 , 146 L.Ed.2d 826 (2000), and this Court’s decision in Johnson, supra. In Ohler , the Supreme Court, in a five-four decision based on non-constitutional grounds, held that the petitioner waived any error in the trial court’s preliminary ruling permitting impeachment by a prior conviction when she preemptively introduced the evidence in her direct testimony. Ohler, 529 U.S. at 760 , 120 S.Ct. 1851 . Although a number of state appellate courts have rejected Ohler , Judge Raker in Brown expressly declined to follow those courts, noting that “the ruling in Ohler and our holding today are consistent with our jurisprudence on appellate procedure, specifically, the traditional rules on waiver and the requirements of preservation of error.” Brown, 373 Md. at 245-46 , 817 A.2d 241 .

Thirty years prior to the Supreme Court’s opinion in Ohler , Judge Orth, writing for this Court, “observe[d] that if the prior conviction was introduced by the defendant himself rather than by the State, he thereby waives objection.” Johnson, supra, 9 Md.App. at 177 , 263 A.2d 232 . We noted that if a defendant “so offers the conviction, probably as a matter of ⁵⁶⁹ trial strategy to soften the anticipated blow in the eyes of the trier of fact, he cannot be heard to complain [on appeal] that his own act of offering such evidence violated his constitutional rights.” Id. Having concluded that Brown waived the issue by introducing the evidence in his direct examination, Judge Raker did not address the merits of whether the trial court erred in admitting Brown’s prior CDS conviction for impeachment purposes. Brown, 373 Md. at 246 , 817 A.2d 241 .

In a dissenting opinion, Judge Wilner (joined by Chief Judge Bell and Judge Eldridge) wrote that he would reject Ohler and “hold that, in the circumstances of this case, [Brown] did not, by drawing the sting, waive his right to complain about the court’s ruling that evidence of his prior conviction was admissible.” Id. at 257, 817 A.2d 241 (emphasis in the original). Judge Wilner (and Judges Bell and Eldridge) also would have overruled State v. Giddens, 335 Md. 205 , 642 A.2d 870 (1994), and State v. Woodland, 337 Md. 519 , 654 A.2d 1314 (1995), and found Brown’s prior CDS conviction inadmissible for impeachment purposes. 3 Id. at 267, 817 A.2d 241 . Judge Harrell authored a concurring opinion in which he agreed with the dissent on the waiver issue, but did not support overruling Giddens or Woodland , and would have held that the trial court did not abuse its discretion in admitting Brown’s prior CDS conviction for impeachment purposes. Id. at 246-47, 817 A.2d 241 .

His position resulted in the fourth vote required for an affirmance of the judgment of conviction. Id. at 252 , 817 A.2d 241 . As noted by Judge Wilner, the breakdown of the vote created “a peculiar setting.” Id. at 251 , 817 A.2d 241 . ⁵⁷⁰ Although four judges (three dissenting and one concurring), and thus a majority, would have held that Brown did not waive the issue by testifying about his prior conviction in his direct examination, we are not convinced that Judge Wilner’s dissenting opinion in Brown “announced the law of Maryland” on the waiver issue as now urged by Cure. Despite the peculiarity of the vote in Brown , “[i]t is axiomatic that a dissent is not controlling precedent.” Padilla v. State, 180 Md.App. 210, 232 , 949 A.2d 68 , cert, denied, 405 Md. 507 , 954 A.2d 468 (2008).

Moreover, Brown has been cited favorably by both the Court of Appeals and this Court for the proposition announced by Judge Raker in the plurality opinion, albeit in a context other than a challenge to the admissibility of a prior conviction for impeachment purposes. See Myer v. State, 403 Md. 463, 483 , 943 A.2d 615 (2008) (“See, e.g., Brown v. State, 373 Md. 234, 238-39 [ 817 A.2d 241 ] (2003) (stating that a party who introduces evidence cannot complain on appeal that the evidence was erroneously admitted.”)); Johnson v. State, 156 Md.App. 694, 704 , 848 A.2d 660 (2004) (“See Brown v. State, 373 Md. 234, 238 [ 817 A.2d 241 ] (2003) restating the long-held principle that ‘a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.’”); State Farm, Fire & Casualty Co. v. Carter, 154 Md.App. 400, 408 , 840 A.2d 161 (2003) (“To be sure, when a party seeks a trial court’s ruling on a motion in limine, the party must object to the admission of the evidence at the time it is actually offered at trial, in order to preserve the objection. See Brown v. State, 373 Md. 234, 242 [ 817 A.2d 241 ] (2003)”). Yet, given the unusual disposition of Brown , and the fact that a majority of the judges would have held that the defendant had not waived the issue for appeal, we consider whether the dissenting opinion has any application to the case now before us.

Judge Wilner, writing for the dissent (and with the concurrence of Judge Harrell on this issue only), noted that the “underlying facts of the case ... are important ... even on the question of waiver.” Brown, supra, 373 Md. at 252 , 817 A.2d 241 (emphasis in the original). Judge Wilner ⁵⁷¹ further stated that he “would adhere generally to the contemporaneous objection rule, because it is a useful rule,” but “would bend it in this situation, however, because when rigidly applied, it fails to serve the ends of fairness or the search for truth.” Id. at 266 , 817 A.2d 241 (emphasis added). When we compare the facts of the present case with those of Brown , we do not believe Judge Wilner’s concern for fairness is implicated by adherence to the contemporaneous objection rule. 4 We explain. Cure’s trial counsel raised the question of the admissibility of the prior convictions on the first day of trial, prior to the voir dire of the jury.

Upon hearing that Cure had previous convictions for attempted first-degree murder and the use of a handgun in the commission of a felony, the trial court immediately responded that those convictions are not impeachable offenses. The discussion then focused on Cure’s 2001 conviction for first-degree arson, and the prosecutor stated he “would like to bring that up.” The trial judge, reasoning that arson, like possession with intent to distribute, is “done secretly, covertly with knowledge that an individual is violating the law,” ruled that he would “let that in.” Defense counsel replied that “certainly we would object,” and for grounds stated that “the prejudicial effect of an arson would like [sic] so inflame the jury that he couldn’t get a fair trial.” The trial judge, recognizing that “all evidence against the defendant is prejudicial,” nonetheless ruled that a prior arson conviction “is not prejudicial in a legal sense.” Defense counsel then simply replied: “Yes, Your Honor.” ⁵⁷² Thereafter, the court conducted voir dire of the venire and seated a jury panel. Following opening statements, the court released the jury for the day. The next day the State put on its case, calling five witnesses to the stand.

After the State rested, the court heard and denied the defense’s motion for judgment of acquittal. Defense counsel then advised Cure on the record of his right not to testify. In so doing, defense counsel reminded Cure that the trial court “already ... ruled that if you testify, the State can ask you about your arson conviction, right, and you understand that the jury can take that into consideration ... as to whether your testimony is believable or not.” The record before us, however, does not reflect that the defense renewed its objection to the court’s ruling of the previous day that the State could impeach Cure with the prior arson conviction, or that the trial court affirmed its earlier ruling. 5 Rather, it appears to us that the defense had acquiesced in the court’s ruling announced the day before. Grandison v. State, 305 Md. 685, 765 , 506 A.2d 580 (“The right to appeal may be waived where there is acquiescence in the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right to appeal.”), cert, denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986).

Moreover, when Cure took the stand, defense counsel did not merely elicit the fact that he had been convicted at age 16 of first-degree arson and served a sentence for the offense. ⁵⁷³ Rather, defense counsel also delved into the fact that Cure was currently on probation, reported weekly to the “Violence Prevention Unit,” and called the unit twice a week. This line of questioning ended only when the State objected, on relevance grounds. The prosecutor did not cross-examine Cure on his prior conviction, or the sentence imposed. In fact, when Cure gave a clearly unresponsive answer — about his previous term of incarceration in reply to the State’s first question asking how long he had known McNeil — the prosecutor cut him off and directed him back to the question posed.

Nor did the prosecutor refer to Cure’s prior conviction in closing argument. In contrast, in Brown the defense moved to preclude the State from introducing evidence of his prior conviction after the State rested its case in chief. Brown, supra, 373 Md. at 255 , 817 A.2d 241 . In argument over its admissibility, “the State ... insisted it was admissible.” Id.

Brown’s co-defendant then took the stand, followed by Brown himself. Id. at 255-56 , 817 A.2d 241 . Accordingly, unlike the present case, the defense’s objection to the admission of Brown’s prior conviction was made shortly before Brown’s testimony, and the record in that case indicated a clear and unequivocal intention by the State to introduce Brown’s prior conviction and the defense’s adamant opposition. Id. at 255 , 817 A.2d 241 .

Finally, although Brown had admitted his prior conviction in his direct testimony, the State, on cross-examination, had him confirm that admission. Id. at 256 , 817 A.2d 241 . We are persuaded that the facts in the present case are sufficiently distinguishable from those in Brown . As we perceive no reason why the contemporaneous objection rule should be “bent” in this case, we hold that the issue presented by Cure is not preserved for our review. 6 ⁵⁷⁴ First-Degree Arson as an Impeachable Offense Lest Cure conclude that he had been hoisted by his own petard, we would hold that, even if preserved, the trial court did not abuse its discretion in admitting the first-degree arson conviction for impeachment purposes.

We explain. Maryland Rule 5-609, governing impeachment by evidence of conviction of a prior crime, provides: (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during