Passamichali v. State

BISHOP, Judge. Appellant, Stavros Passamichali, was charged with robbery with a dangerous and deadly weapon, transportation of a handgun, use of a handgun in the commission of a felony or crime of violence, resisting arrest, and assault. After a trial before a jury in the Circuit Court for Baltimore City (The Honorable Elsbeth Levy Bothe presiding) but ⁷³⁴ before the case went to the jury, the State entered a nolle prosequi to the Informations charging appellant with resisting arrest and assault. The jury found appellant guilty of all remaining charges.

Appellant was sentenced to fifteen years for the robbery with a dangerous and deadly weapon offense and to a concurrent five years for use of a handgun in the commission of a felony or a crime of violence. 1 ISSUES Appellant raises the following issues on appeal: I. Whether the per se admissibility of infamous crimes mandated by MD.CTS. & JUD.PROC.CODE ANN. § 10-905 (1988) deprived the appellant of his constitutional right to present testimony in his own behalf and to a fair trial; and II. Whether the decision of the appellant to plead not guilty negatively influenced the trial judge resulting in the imposition of a sentence five years in excess of that which had been promised by the court in exchange for a guilty plea. FACTS At approximately 5:00 a.m. on September 7, 1988 the Crown Gas Station located across the street from the local police station, at 5801 Eastern Avenue in Baltimore City, was robbed at gunpoint while Ray Bayne was on shift in the booth. At. the commencement of trial and after the jury was sworn, appellant made a Motion in Limine to have evidence of a prior conviction for robbery excluded.

The following colloquy took place: MR. KAMENETZ [counsel for defense]: The equities here are in essence that the Defendant is charged with armed robbery. He will not be able to take the stand and tell his side of the story because the State’s Attorney will ⁷³⁵ bring out this impeachable offense. There is no way any rational person is going to be able to separate that from their mind in listening to what the Defendant would have to say on the stand.

How can they possibly think that he might have any appearance of innocence? $ * * % * * MR. KAMENETZ: Well, again that—obviously we have to deal with that down the road. I want the Court to address here the prejudicial effect. The prejudicial effect here is immense____ THE COURT: There is no question that there is a prejudicial effect.

MR. KAMENETZ: Which outweighs any probative value here. J[i * 5jS ■{! £ !-C THE COURT: Counsel, your client is not going to be testifying in this part of the case. Partly because of your lateness and partly because of these motions the Jury has been sitting upstairs now three quarters of an hour.

What I think we’d better do is shove this to the side right now. Your client is not going to be testifying until the Defense side of the case and I will rule on it. MR. KAMENETZ: All right.

Thank you, Your Honor. THE COURT: I will tell you if you want—Pm inclined to say it’s admissible, but I will give it further thought. Two of the arresting officers testified that they walked out of the police station and saw the appellant leaving the Crown Gas Station, on foot, carrying a handgun and a trash can. The officers identified themselves then took chase.

Appellant ran but was apprehended a few blocks away in a garage and abandoned car lot where one officer discovered him curled up in the back seat of an abandoned car. Bayne, the station attendant who was the victim, testified that appellant was the armed robber. Bayne also testified that, at the beginning of his shift, he always starts out with $50.00 in his cash drawer comprised of twenty-five ones and five fives. Bayne testified further that there were no sales ⁷³⁶ made during his shift, prior to the robbery.

One of the police officers testified that he recovered precisely the same denomination of bills from the person of the appellant. At the close of the State’s case the court ruled on the limine motion: ... [t]he second part of the proposed rule [2] dealing with admissible convictions for purposes of testing credibility and making it discretionary to disallow felony convictions when their probative value was not as great as their prejudicial effect has never been enacted and is pending before the rules committee.... ... [t]he courts have no discretion but to admit for purposes of testing credibility convictions for felonies, which robbery is. Therefore, I cannot preclude the State from cross examining the Defendant if he chooses to testify about his conviction for robbery. As a result of this decision, appellant chose not to take the stand and testify in his own behalf.

DISCUSSION I. MD.CTS. & JUD.PROC.CODE ANN. § 10-905(a) provides that prior convictions of infamous crimes are per se admissible for impeachment purposes. Since robbery is an infamous crime, appellant’s prior conviction for robbery would have been admissible against him if he had chosen to testify. Therefore, appellant argues, the per se admissibility of such a conviction effectively denied appellant his constitutional right to testify in his own defense and his right to a fair trial because he was forced to decide not to testify. Appellant asks us to hold that the statute is unconstitutional.

The State responds that, in the trial court, appellant’s objections were predicated on nonconstitutional grounds. ⁷³⁷ Appellant’s failure to articulate at trial any claim that the statute was unconstitutional precludes this issue from being raised on appeal. If, the State contends, the constitutionality of the statute was questioned in the trial court, then appellant failed to preserve the issue by testifying at trial. Since appellant failed to take the stand to testify, the prior convictions were not introduced into evidence and therefore he has no grounds to appeal. Finally, the State asserts that if the issue has been preserved, the statute in question does not deprive appellant of a fair trial or his right to testify in his own defense.

A. Constitutionality Raised Below Ordinarily, the appellate court will not decide any issue besides jurisdiction unless it plainly appears by the record to have been raised in or decided by the trial court. Maryland rule 8-131(a). Specifically, this Court has held that a question as to the constitutionality of a statute will not be considered on appeal where the question was not raised in the lower court. Johnson v. State, 63 Md.App. 485 , 492 A.2d 1343 (1985); Hall v. State, 22 Md.App. 240 , 323 A.2d 435 (1974); Smith v. State, 16 Md.App. 317 , 295 A.2d 802 (1972); Woodell v. State, 2 Md.App. 433, 234 A.2d 890 (1967).

Before us appellant mounts a constitutional challenge to MD.CTS. & JUD.PROC.CODE ANN. § 10-905(a). At trial, the appellant complained that he was being deprived of his right to testify by the per se admissibility of his prior robbery conviction: MR. KAMENETZ [trial counsel for appellant]: The equities here are in essence that the Defendant is charged with armed robbery. He will not be able to take the stand and tell his side of the story because the State’s Attorney will bring out this impeachable offense.

There is no way any rational person is going to be able to separate that from their mind in listening to what the ⁷³⁸ Defendant would have to say on the stand. How can they possibly think that he might have any appearance of innocence? THE COURT: Before we get to that, is your client—if that conviction is not going to be used is your client going to be testifying or are we just talking academically? MR.

KAMENETZ: Well, I’m asking the Court to consider a motion in limine. I’m not going to— THE COURT: ... I’m not going to tear my hair out over it unless I know that the Defendant’s decision is actually going to hinge on it, because if he’s not going to testify anyway— MR. KAMENETZ: No, it absolutely will hinge on it.

Now, I don’t want to lock him in so that if the Court— let me put it this way. If the Court does not allow the conviction to come in then he absolutely will take the stand. While the trial counsel did not invoke the magic word “unconstitutional”, the clear impact of his argument was unmistakable. The trial judge unquestionably agreed that the prior conviction, if admissible, would be a basis for the appellant’s not testifying.

When it erroneously believed that there was some discretion involved, the trial court stated: I’m not going to preclude him from testifying. I think . that’s what it amounts to. It’s a two-way street. I realize the State’s interest in the subject, but I really feel that because in this case it would bar him from testifying I really don’t see—I’m going to allow him to testify without reference to it.

Upon learning that an anticipated rule change which would have made the trial court’s ruling discretionary had not been approved and, therefore, that the statute required the prior conviction to be per se admissible, the judge ruled against appellant’s claim. Clearly, the constitutionality of the statute was raised below. The trial court realized this when making its initial ruling. The State’s contention that ⁷³⁹ the constitutional challenge has been first raised on appeal has no merit.

B. Preservation of Issue The State argues that when a defendant does not testify, an in limine ruling will not be reviewed on appeal. In support of its argument the State cites Luce v. United States, 469 U.S. 38, 40 , 105 S.Ct. 460, 462 , 83 L.Ed.2d 443 (1984) and Offutt v. State, 44 Md.App. 670, 677 , 410 A.2d 611 (1980), cert. denied, 291 Md. 780 (1981). We hold that these cases are inapposite. At issue in Luce was Federal Rule of Evidence 609(a).

Rule 609 provides for the admission into evidence of prior convictions for the purpose of attacking the credibility of a witness; however, unlike Section 10-905, the Rule requires the trial court to determine whether the probative value of admitting the evidence outweighs its prejudicial effect to the defendant. 3 Therefore, a factual determination is required to be made. In holding that the defendant must testify in order to raise and preserve a claim of improper impeachment, the Court held: A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.

(Footnotes omitted.) Luce, supra 469 U.S. at 41 , 105 S.Ct. at 463 . In the case sub judice, no such “subtle evidentiary questions” requiring a factual context are necessary. Section 10-905 mandates per se admissibility of appellant’s prior ⁷⁴⁰ robbery conviction. A constitutional challenge to the statute has been raised.

In Luce , Justice Brennan wrote a concurring opinion in which he stated: I join the opinion of the Court because I understand it to hold only that a defendant who does not testify at trial may not challenge on appeal an in limine ruling respecting admission of a prior conviction for purposes of impeachment under Rule 609(a) of the Federal rules of Evidence____ In [the case of New Jersey v. Portash, 440 U.S. 450, 462 , 99 S.Ct. 1292, 1298 , 59 L.Ed.2d 501 (1979) and in] others in which the determinative question turns on legal and not factual considerations, a requirement that the defendant actually testify at trial to preserve the admissibility issue for appeal might not necessarily be appropriate. The appellate court’s need to frame the question in a concrete factual context would be less acute, and the calculus of interests correspondingly different, than in the Rule 609(a) case the Court decides today. Luce, supra 469 U.S. at 44 , 105 S.Ct. at 464 (Brennan, J. concurring). In Offutt v. State, supra, this Court held that the denial of a motion in limine does not constitute reversible error when the evidence is not later actually offered in trial.

Again, this Court was not faced with a constitutional challenge to the statute as we are here. In addition, it was not clear whether Offutt would have testified if his prior conviction was deemed inadmissible. The record in this case makes clear that appellant chose not to testify solely because of the impending admission of his prior robbery conviction. It defies logic to suggest that a defendant must testify in order to preseve for appellate review a claim of deprivation of the constitutional right to testify.

If such a requirement existed, this constitutional challenge could never be squarely presented for appellate review because the claim would dissipate upon the defendant’s taking the oath. In the case sub judice there was no factual determination to be made which would have required appellant to take the stand. The ⁷⁴¹ issue was a purely legal one—the constitutionality of Section 10-905—and