Sutton v. State

RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned. Appellant Robert John Sutton, Jr. was convicted by a jury in the Circuit Court for Worcester County of felony-murder, first degree assault, robbery with a deadly weapon, and theft. Sutton appeals from his convictions and presents the following questions for our review: 1. Did the trial court err in failing to instruct the jury concerning voluntary intoxication? 2.

Did the trial court err in permitting appellant to waive the right to counsel in mid-trial on the basis of reasoning and analysis which did not apply after the trial had commenced? 3. Did the trial court err in failing to weigh the potential for unfair prejudice against the probative value of appellant’s prior convictions, and in admitting convictions which were inadmissible as a matter of law? 4. Did the trial court err in ruling that appellant would not be permitted to call certain witnesses? 5. Did the trial court err in instructing the jury that self-defense applied to the charge of first-degree assault and not to any of the other charges? ⁴²¹ 6.

Did the trial court err in refusing to instruct the jury concerning second-degree murder and manslaughter? Facts Shortly after 6:30 a.m. on April 30, 1999, the body of Thomas Lynch was discovered in the Inlet Parking Lot in Ocean City, Maryland, near large tents that had been erected for Ocean City’s Spring Fest celebration. Also recovered near the tents was a large metal tent stake, which appeared to be covered with blood. The Assistant Medical Examiner for the State of Maryland, who performed the autopsy on Lynch, testified that the cause of death was multiple severe skull fractures and brain injuries resulting from four blows to the head by a large blunt object.

The medical examiner said that the injuries were consistent with being struck at least four times with the tent stake that had been found near the scene. The Assistant Medical Examiner further testified that the victim “probably would have lost consciousness and probably collapsed” from the first blow. It was undisputed that appellant had struck Lynch in the head, but appellant denied the version of events as it was told by the State. The State contended at trial that appellant had killed Lynch during a robbery.

On the other hand, appellant insisted that Lynch was actually the initial aggressor, and that appellant struck him in self-defense. Evidence at trial established that, on April 29th, Lynch’s employer had paid him in excess of $200.00 in cash. When his body was found the next morning, however, he had only twelve one-dollar bills and $8.82 in change in his pockets. Testimony further adduced that Lynch was drinking at the Dutch Bar in Ocean City on the night of his death.

During the course of the evening, he had become so intoxicated that he was denied further liquor. Appellant was present at the bar and subsequently attempted to purchase drinks for Lynch. Witness accounts established that Lynch and appellant left the bar together; one witness testified that this occurred at 12:30 a.m. on April 30, and another witness recalled that they left ⁴²² the bar sometime between 11:30 p.m. and midnight. The homicide took place shortly thereafter.

It was established that following the homicide a cab driver picked up appellant at 12:52 a.m. and drove him from the Cork Bar to the Tavern By The Sea. According to the cab driver, appellant repeatedly and insistently asked him to drive to a place where he could obtain drugs and offered him $100.00 to do so. The cab driver testified that appellant had “a wad” of currency in his hand when he paid his fare. Crucial testimony came from Tammy Lonsinger, the mother of appellant’s child and his girlfriend at the time of the homicide.

She recalled statements appellant had allegedly made to her. She said that she and her children were with appellant in Ocean City on the evening of April 29th. She recalled that she and appellant had gotten into an argument sometime around 10 11:00 p.m. and that appellant then left to go drinking on his own. She did not see him again until 2:00 a.m. the following morning, when he returned intoxicated.

At that time he began talking loudly with her six-year-old son, Corey. It was her testimony that she overheard appellant tell Corey that “he had a lot of money ... he said he had gotten it from a man [that he] beat the man and took the money ... at that time he was saying [he beat him with] a crow bar.” She also heard appellant tell her son that he had several thousand dollars, and that he was “trying to show him what a hundred dollar bill looked like and what a fifty dollar bill looked like.” She testified that appellant later recounted to her slightly different accounts, in which he mentioned that he had struck the man with a tent stake or tent pole in order to take his money. Lonsinger testified that appellant told her that “[h]e did strike the man.... They went walking outside and when he went to throw up, he hit him once [with a tent pole] to take the money____When he first told me, he had said that he had hit him because he wanted the money.

Later, in other stories, he told me that he knew he hit him at least twice.” Detective Scott Bernal interviewed appellant in Pennsylvania after his arrest and took both an oral and written state ⁴²³ ment. Appellant confessed to a plan to get Lynch as drunk as possible so that he could take his money, after which he “lost himself’ and struck Lynch with a bar. In a statement, appellant told the police that, on the night in question, the victim had told him that he had $13,000 in his pocket. Appellant confessed that he decided to rough up the victim and take his money “when he told me about the [money] at the bar.” He further admitted hitting the victim in the stomach with a heavy metal bar and then swinging the bar again, very hard like a baseball bat, this time hitting the victim in the head.

The victim fell forward but gargled and blurted words, so appellant hit him again while he was on the ground. Appellant then went through the victim’s pockets for the money that he thought was there. Appellant admitted that the reason he hit the victim in the head and stomach with the bar was so he would not struggle when he took the money. Appellant confessed to taking $160 from the victim.

At the close of the State’s case, appellant discharged counsel, and resumed with his own defense. Appellant testified in his own defense, denied any robbery, and stated that Lynch was struck in self-defense. Appellant testified that he and Lynch left the Dutch Bar to find another bar that would serve Lynch. Lynch began to get angry and abusive, wrongly believing that appellant was among those responsible for throwing him out of the Dutch Bar.

Lynch picked up a bar, threatened appellant, and “rammed” him. Appellant pushed back, and picked up the bar when Lynch dropped it. Lynch continued to be verbally abusive, and came at appellant with a large, heavy key ring. It was only at that point that appellant struck him in the head with the bar, which he believed was not the large, heavy stake entered into evidence by the State.

Appellant also claimed at trial that he had given his earlier statements to police because he was coerced by officers who refused his request for counsel, threatened to prosecute his girlfriend, and told him what to write. Discussion We note at the outset that appellant failed to raise several of his contentions at trial and, consequently, those issues have ⁴²⁴ not been preserved. Because this pertains to several of his contentions, we set forth the basic applicable principles on that point for the sake of efficiency. Maryland Rule 4-323(a) requires that “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived.” Also applicable is Md. Rule 8-131(a), which provides: The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court---- (Emphasis added.) We said in Acquah v. State, 113 Md.App. 29, 43 , 686 A.2d 690 (1996), that “this Court will not decide issues unless they plainly appear to have been decided below.” The Court of Appeals has stated: ‘We have repeatedly held that unless a defendant makes timely objections in the lower court or makes his feelings known to that court, he will be considered to have waived them and he can not [sic] now raise such objections on appeal.” Caviness v. State, 244 Md. 575, 578 , 224 A.2d 417 (1966) (citations omitted). We shall find that no bases exist to overturn appellant’s convictions. Although we have set forth, supra, a basic statement as to the facts of this case, we will supplement additional facts relevant to each issue as is necessary below.

I. Voluntary Intoxication Appellant argues that the jury should have been instructed regarding the legal relevance of voluntary intoxication as it related to the intent element of the robbery charge. He claims that substantial evidence was adduced that he was intoxicated at the time of the offense, and that therefore voluntary intoxication was an issue that the jury could ⁴²⁵ have taken into account in determining whether the elements of robbery, and consequently felony murder, had been established. Appellant correctly points out that robbery is a specific intent crime, and voluntary intoxication is a matter that the jury could take into account in determining whether that intent element had been established. Hook v. State, 315 Md. 25, 32 , 553 A.2d 233 (1989).

Accordingly, appellant argues that the court erred in its failure to instruct the jury concerning the legal relevance of voluntary intoxication. Appellant concedes, however, that no exception was made to the failure of the trial court to propound this instruction, and that therefore this contention has not been preserved. He nevertheless argues that it would be appropriate for this Court to take cognizance of the matter under the plain error doctrine. The plain error doctrine, established in Md. Rule 4-325(e), provides: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. (Emphasis added.) In Cook v. State, 118 Md.App. 404 , 702 A.2d 971 (1997), we discussed the plain error doctrine, stating: “Under Maryland Rule 4-325(e), we possess plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court.” Danna v. State, 91 Md.App. 443, 450 , 605 A.2d 150 , cert. denied, 327 Md. 627 , 612 A.2d 257 (1992). Plain error is “error which vitally affects a defendant’s right to a fair and impartial trial.” State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521 (1990).

An appellate court should address an ⁴²⁶ unpreserved error in only those instances which are “compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial.” State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980). In deciding whether to exercise our discretion, this Court may consider the egregiousness of the error, the impact on the defendant, the degree of lawyerly diligence or dereliction, and whether the case could serve as a vehicle to illuminate the law. Austin v. State, 90 Md.App. 254, 268-72 , 600 A.2d 1142 (1992). Nevertheless, “the touchstone remains, as it always has been, ultimate and unfettered discretion.” Id. at 268 , 600 A.2d 1142 .

Cook, 118 Md.App. at 411-12 , 702 A.2d 971 . The dispositive question, however, is whether the evidence at trial generated the issue of appellant’s voluntary intoxication at the time of the murder. Dishman v. State, 352 Md. 279 , 721 A.2d 699 (1998), states: The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired. Id. at 292 , 721 A.2d 699 .

We shall review the evidence to determine whether that minimum threshold was met. Appellant testified that he has a drinking problem. Between 10:00 and 11:00 p.m., he left his girlfriend after an argument, and went to the Purple Moose. There he had two beers and two tequilas.

From there he went to the Dutch Bar. He and Lynch left the Dutch Bar sometime between 11:30 and 12:30 a.m. 1 After striking Lynch, appellant went to the Cork Bar, where he had a beer, and asked that a cab be called for him. At approximately 12:52 a.m., he was taken by cab to the Tavern by the Sea, which was another bar in the area. His sole testimony on his intoxication ⁴²⁷ was that “[he] was pretty lit” when he arrived back at the motel at approximately 2:00 a.m.

Joyce Skillman, a bartender at the Dutch Bar, testified that appellant was drinking beer, but that “[h]e didn’t seem drunk.” She said that even when he left the bar with the victim, appellant “seemed all right. He wasn’t staggering or slurring his words.” Jackie Lynch, who was working as a host at the Dutch Bar, also testified as to appellant’s level of intoxication: “I wouldn’t say he was to the point of intoxication. No slurring of his speech. He seemed to be coherent, understanding-and what word would I use.

He seemed to be fine. I mean, just a tourist that was drinking. It wasn’t to the point where I would have cut him off.” He further testified that appellant was drinking beer and had a shot of tequila, but that “I don’t believe he had that much to drink, honestly.... You know, I mean, but I didn’t see him ordering a lot of drinks.” Billy Wilkins, the manager of the Cork Bar where appellant arrived immediately after the incident, was asked about what appellant had to drink while at the Cork Bar.

He responded that appellant had “[a]t the most two beers, maybe two shots.” He testified, “I thought that [appellant] may have had a buzz going,” but made clear that he “didn’t think he was like extremely intoxicated.” Testimony adduced that appellant remained in the Cork Bar for approximately a half-hour or forty-five minutes. A taxi cab was then called for him, and he proceeded to another bar, the Tavern by the Sea. David Brown was the cab driver who drove appellant from the Cork Bar to the Tavern by the Sea. He testified that he picked up appellant at 12:52 a.m., that appellant was acting “normal” at that time, and that appellant “wasn’t drunk or anything.

He was sober.” Tammy Lynn Lonsinger testified that appellant returned to their hotel room at approximately 2:00 a.m. that morning, and that he “was intoxicated.” At first glance, testimony by Wilkins and Lonsinger appear to give credence to appellant’s claim of intoxication. This is ⁴²⁸ misleading, however, in the context of this case. Appellant testified that he had two beers and two shots of tequila at the Purple Moose before he went to the Dutch Bar. He testified that he spent several hours at the Dutch Bar, but did not mention having any drinks there.

He further testified that he and Lynch left the Dutch Bar together and arrived at the area with the tents, where the incident took place. He recalled having “snuck a beer out of the bar,” and that he had given that beer to Lynch. Thus, the last place where appellant had drinks prior to his altercation with Lynch, according to his own testimony, was the Dutch Bar. Testimony from the employees of that bar, however, clearly failed to establish that he was intoxicated at that point.

Testimony by Wilkins pertained to the Cork Bar, but the evidence established that appellant arrived at the Cork Bar after the incident. Similarly, although his girlfriend testified that appellant was intoxicated when he returned to the motel room at about 2:00 a.m., this too was after the incident, and after he had consumed more alcohol at other bars. Therefore, testimony regarding appellant’s state of intoxication at the Cork Bar, or at 2:00 a.m. in the motel room, is irrelevant and does not support appellant’s claim of voluntary intoxication at the time of the incident. In Dykes v. State, 319 Md. 206, 216 , 571 A.2d 1251 (1990), the Court noted that the burden is on the defendant to initially produce some evidence on mitigation “sufficient to give rise to a jury issue.” (quoting State v. Evans, 278 Md. 197, 208 , 362 A.2d 629 (1976), superseded by statute on other grounds).

The Court also said in Evans that, “if the defendant adduces no evidence of these matters, no issue of their existence is raised in the case and no jury instructions regarding mitigating circumstances or self-defense need be given.” We find that the issue of voluntary intoxication was not generated for purposes of requiring a jury instruction. Appellant’s failure to request the instruction, or to object to the instructions as given, simply did not taint appellant’s right to a fair trial, as no evidence was established at trial of any ⁴²⁹ impairment of his ability to form the specific intent to commit robbery at the time of the murder. Appellant himself did not testify that he was too intoxicated to form a specific intent at the time of the murder. Quite to the contrary, he testified that he was acting in self-defense.

Thus, there is nothing egregious or extraordinary that would warrant the court’s exercise of plain error review in this case.

II

Waiver of the Right to Counsel Appellant next contends that it was error for the trial court to permit him to discharge counsel and to proceed pro se after trial had already begun. After the State closed its case, appellant informed the trial judge that he wished to discharge counsel and represent himself. 2 A lengthy colloquy followed, ⁴³⁰ whereby appellant provided the trial judge with his reasons for wishing to discharge counsel. Appellant was consequently permitted to waive his right to counsel and proceeded pro se. Appellant does not claim that his waiver was anything other than knowing and voluntary, but argues that what emerged is the trial court’s erroneous view that appellant had an absolute right to waive counsel which would be honored regardless of the court’s strong disagreement. “A defendant’s request to dismiss appointed counsel implicates two rights that are fundamental to our system of criminal justice; the defendant’s right to counsel, and the defendant’s right to self-representation.” State v. Brown, 342 Md. 404, 412-13 , 676 A.2d 513 (1996).

Of course, “[t]o avail him or herself of the right of self representation, a defendant must knowingly and voluntarily waive the right to counsel.” Harris v. State, 344 Md. 497, 505 , 687 A.2d 970 . Ordinarily, Md. Rule 4-215 applies to protect both the right to assistance of counsel and the right to pro se defense when a defendant wishes to discharge counsel. 3 It ⁴³¹ provides the trial court with the procedure that must be followed in such circumstances. That Rule does not apply in the instant case, however, because the Court of Appeals has made it very clear that where the trial has already commenced, as is the case here, Rule 4-215 does not apply. Brown, 342 Md. at 428 , 676 A.2d 513 .

Instead, the matter is committed to the sound discretion of the trial judge, who must weigh and balance the relevant competing considerations. Our mode of review was established in Brown : “In evaluating trial court decisions on motions to dismiss counsel during trial, we shall apply an abuse of discretion standard.” Id. at 429 , 676 A.2d 513 . The Court of Appeals has stated: [T]he trial court must determine the reason for the requested discharge before deciding whether dismissal should be allowed. While the trial court has broad discretion, once trial has begun, to determine whether dismissal of counsel is warranted, the court’s discretion is not limitless.

The court must conduct an inquiry to assess whether the defendant’s reason for dismissal of counsel justifies any resulting disruption. This inquiry must meet constitutional standards .... We acknowledge that there is little to guide the trial judge in the exercise of this discretion. Therefore, in future proceedings, we suggest that the trial judge consider the following factors in deciding whether to permit discharge of counsel during trial: (1) the merit of the reason for dis ⁴³² charge; (2) the quality of counsel’s representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel.

Id. at 428, 676 A.2d 513 . Here, meaningful trial proceedings clearly had begun. 4 Appellant’s request to discharge counsel came after the State had rested its case. The trial court determined that appellant and his defense counsel disagreed over whether to call certain witnesses. An in depth inquiry was conducted by the trial court regarding appellant’s wish to discharge counsel, and this inquiry sufficiently satisfied constitutional standards.

The trial judge carefully explained to appellant that he was facing first degree murder charges, and that the State was seeking life imprisonment without the possibility of parole. The trial judge further explained the other charges and possible penalties that appellant was facing. He strongly recommended against discharge of counsel. The trial judge carefully considered appellant’s reasons for requesting dismissal, and ultimately concluded that appellant’s waiver of the right to counsel was knowingly and voluntarily made.

Appellant does not contest the fact that an extensive inquiry was made by the trial judge, nor does he claim that the inquiry failed to meet constitutional standards. Appellant argues, however, that the trial judge mistakenly believed that there existed no choice but to grant appellant’s wish to discharge counsel. Thus, appellant maintains that the trial judge essentially failed to apply any discretion when he permitted appellant to discharge counsel. Appellant apparently arrives at this contention based on the trial judge’s statement .to appellant that “you do have an absolute right to represent ⁴³³ yourself.” We decline the invitation by appellant to read this statement in a vacuum.

Immediately after making that statement, the trial judge said: “I’ll respect that right as much as I’ll respect your right to counsel.” That language clearly indicates that the trial judge did indeed apply his discretion to the decision at hand. The mere mention by the trial judge of the competing interests at force here, namely self-representation and the right to counsel, makes it clear that the trial judge understood, appreciated and applied a balancing of these interests in arriving at his determination. If the trial judge had been exercising no discretion at all, then there would have been no reason for him to make mention of his respect for, and weight given to, appellant’s right to counsel. The trial judge strongly advised appellant against discharging counsel, but at the same time placed high value upon appellant’s repeated wishes to represent himself.

It was not that the trial judge used no discretion in his finding on this topic; rather, he regarded appellant’s wish to proceed pro se as an inherently significant right to be given utmost respect. This formidable emphasis placed by the trial judge on appellant’s insistence on self-representation is clear from this statement to appellant while the colloquy on this subject was taking place: And you know, I’ll respect that right as much as I’ll respect your right to counsel. I’m a little saddened, quite frankly, that you’re proceeding this way, but you know, it’s your day in court. That’s what I used to tell people I represented.

We would fight, argue, disagree, but ultimately I knew that it was their day in court and not mine. No matter what happened, I was going home that night and they might go to jail. As we have said, Md. Rule 4-215 does not apply in situations where meaningful trial proceedings have already begun. Thus, it was incorrect for the trial judge to address that Rule and to conduct an inquiry essentially based on this Rule.

We point out that it is imperative for trial judges, when confronted with a situation as is the case here, to spell out for ⁴³⁴ the record the reasoning they utilize in exercising their discretion on this point. It can be said that the trial court was mistaken by focusing its inquiry on Rule 4-215, rather than making it abundantly clear that it was applying its discretion in this decision. We think, however, that in the instant case the trial judge, in an overabundance of caution, applied Md. Rule 4-215 not instead of the application of his own discretion, but rather in addition to deciding the matter within his discretion. We think it necessary to clarify why the trial court is to exercise its discretion in such circumstances, and to explain why this situation is to be dealt with differently depending on whether trial has already commenced.

In order to hone in on these points, we think it elucidating to set forth in greater detail the discussion by the Court of Appeals in Brown . At the beginning of its analysis, the Court stated: “[0]nce meaningful trial proceedings have begun, the right to substitute counsel and the right to defend pro se are curtailed to prevent undue interference with the administration of justice.” Brown, 342 Md. at 412 , 676 A.2d 513 . (citation omitted). “In the absence of such a limitation, defendants could use ‘eleventh hour’ requests to discharge counsel as a tactic to delay the proceedings or to confuse the jury.” Id. at 414-15 , 676 A.2d 513 . (citations omitted). “If the court concludes that the defendant’s request to dismiss counsel was not made in good faith but [was] a transparent ploy for delay, the court may exercise its discretion to deny the request.” Id. at 416, 676 A.2d 513 (citation and internal quotation marks omitted).

Although the Court of Appeals did not decide in Brown whether a request to proceed pro se should be considered differently than a request to substitute counsel, 5 the Court did note that “[s]ome courts have suggested that the standard for evaluating requests to defend pro se should be more permis ⁴³⁵ sive than the standard for evaluating requests for substitute counsel.” Id. at 418 , 676 A.2d 513 (citation omitted). We do not attempt to establish a different standard today, but we do think it insightful in the context of the instant case to consider why different standards could be conceivable. In Brown , the Court of Appeals found that Md. Rule 4-215 did not apply once trial commenced because at that point a request to discharge counsel could cause a greater interference with the orderly pursuit of justice. The Court said: [Requiring trial courts to adhere to the Rule throughout trial would present unnecessary and cumbersome procedural obstacles to an efficient trial.

For example, if Rule 4-215(e) applied throughout the trial, it would require the court to permit dismissal of counsel if the defendant could demonstrate a meritorious reason, regardless of any countervailing considerations. This interpretation would increase the risk of disruption and jury confusion, consequently increasing the risk of mistrial. Id. at 427 , 676 A.2d 513 . A thorough reading of Brown establishes that the Court was concerned with the possibility of a defendant requesting a discharge of his counsel for no good reason other than for purposes of causing delay and confusion.

This could be initiated by a desperate defendant in a last-minute effort to cause delays when he realizes his trial is not going his way. It is precisely this type of bad-faith legal maneuvering, when clearly not based on merit, that we aim to avoid. It seems likely that a substitution of counsel potentially can cause much more delay and confusion than a situation whereby a defendant discharges counsel and proceeds pro se. In a situation involving self-representation, the defendant is already familiar with his case and presumably could pick up where his counsel left off.

On the other hand, substitute counsel would likely be coming into the case with no prior exposure to the particular facts and would probably require additional time to become acclimated with the case. ⁴³⁶ In the instant case, there was no indication to the trial judge that appellant’s request to proceed pro se would cause much delay. Additionally, the record does not demonstrate that appellant’s request was due to an attempt to hinder the efficiency of his trial. It clearly appears from the record that appellant was genuinely concerned about his counsel’s zeal in defending him, and whether counsel’s perceptions were affecting his representation at trial. We think the situation in the instant case is distinguishable from that of other cases whereby an appellant requested to proceed pro se and was denied that right.

In such circumstances, we would think that one has more grounds for complaint, as he has requested something and not received it. In this case, however, we think it fitting to remind appellant that one should “be careful what you ask for, because you might just get it.” Appellant asked for permission to proceed pro se, and received his wish. Under the totality of these circumstances, we would be hard pressed to find that appellant was denied his right to counsel or that the trial court’s finding on this issue was reversible error. Appellant has presented no legal authority supporting his claim of reversible error.

The trial judge asked defense counsel if he would remain at the counsel table with appellant throughout the trial in order to assist him. Defense counsel agreed to do so, and in fact assisted appellant with legal questions for the remainder of the trial. Moreover, at the time the discharge of counsel was permitted, the trial judge informed appellant that he would entertain a future request from appellant to resume representation by counsel in the event appellant changed his mind about proceeding pro se: If you change your mind, if you change your mind and you want [defense counsel] at some point in time, I’ll consider it, how’s that? If you change your mind during the course of the balance of the trial and you tell [defense counsel], we’ll approach, come up here to the bench and perhaps [defense counsel] would be willing to reenter his appearance in the case. ⁴³⁷ Appellant never changed his mind regarding his self-representation — not until after he was convicted.

We reject appellant’s attempt at hedging his bet in this regard, and we conclude that the trial court did not commit reversible error on this issue.

III

Prior Convictions Appellant testified in his own defense, and was impeached with a series of prior convictions. He asserts that he was not informed that his prior convictions could be utilized to impeach his credibility if he chose to testify. Additionally, he offers the following two-pronged contention regarding his impeachment: He claims that the trial court erred by not weighing the potential for prejudice of any of the convictions against their probative value, and that the trial court erred by permitting impeachment with convictions that are inadmissible to impeach. On the latter assertion, he points to his prior convictions of possession of a bag of marijuana, underage drinking, and a juvenile conviction as convictions that are inadmissible to impeach.

He concedes that he made no objections at trial on these points, but argues that the plain error doctrine nonetheless requires reversal of his convictions. The advice appellant received from the trial judge regarding his intention to testify, in relevant part, was as follows: [THE COURT]: ... If you choose to testify, you will be subject to cross-examination by the State’s Attorney and the court can also ask you questions. If you choose not to testify, the jury nor I can draw any inference that you were guilty because of that election, and I would tell the jury that if you asked me to; I would tell the jury they should not even discus [sic] or consider such matters in the jury room in arriving at a verdict as to guilt or innocence.

Now, do you understand everything I just told you? A: Yes, sir. [THE COURT]: Knowing what I’ve just told you, do you wish to testify? A: Yes, sir. ⁴³⁸ Subsequently, the following transpired on cross-examination of appellant: Q: Mr. Sutton, when you left Pennsylvania you said you left because you knew you were going to be arrested for violating your parole? A: Yes, sir, Q: What were you on parole for?

A: I was on auto parole. I was on probation. I should have brought this with me, but that’s okay. I was on probation for a DUI, a DUI.

No, no, no. I went to jail for ninety days for DUI and driving while suspended and I was on probation for theft. Q: Now, this isn’t the first time you’ve had problems with the law, is it? A: No, sir, it’s not.

Q: Can you tell the jury what your criminal record is? A: Sure. When I was — I’ll tell you the whole thing. If I miss something, I’m sure he’ll tell me.

When I was about sixteen, I was arrested with a bag of marijuana. When I was seventeen, I was arrested for underage drinking. Also when I was seventeen, I stole a Cadillac and wrecked it. Out of that wreck, I ran from the scene.

Some police officers seen me, I tried to get away from them. The one grabbed a hold of me, bent my arm half way up behind my back, I turned— [THE COURT]: I’m going to interrupt this. We’re not going to go through the facts of every other case. A: I’m sorry. [THE COURT]: Well, it’s not really your fault.

It was the way the question was posed to you. Please be specific, Mr. Collins. Q: Mr. Sutton, were you convicted of two counts of burglary in December of 1991? A: Yes, when I was eighteen years old.

Yes. Q: Convicted of two counts of theft in 1991? A: They were the same as the burglary. ⁴³⁹ Q: Four counts of theft? A: In Pennsylvania, if you get charged with burglary, they add theft receipt.

It’s all one charge. They just add everything to it. Yes. Yes, I was.

Q: Six counts of receiving stolen property? A: All from the same thing, yes. Q: Two counts of forgery? A: From the same thing, yes.

Q: And the theft of a motor vehicle? A: From the same incident, yes. All one incident. Q: Were you also convicted of making a false statement to the police?

A: I told — yes, I was. Q: Were you also convicted of making another false statement to the police, a false report to a police officer on August 7,1998? A: Just a year and a half ago. Q: Again, convicted of receiving stolen property in 1998?

A: You say “convicted.” I signed a plea to no contest for a reason. Q: You were found guilty of it; right? A: No, I wasn’t. Q: You pled no contest to it?

A: Yes, I did Q: And in July of 1999 of theft? A: Oh, I’m sorry. The last one, '98, theft? Oh, I’m sorry.

I’m sorry. I got confused. The theft that they charged me with was a license plate on my car that my girlfriend gave me. Q: But you were charged with it and you were convicted of it?

A: And she went into court and simply testified that it was not stolen. That was a court error that this license plate belonged — or was stolen. In fact, it wasn’t stolen. It ⁴⁴⁰ was her’s and her ex-husband’s.

We stuck it on my car because I couldn’t get a license. In 1999 I took a plea to no contest to receiving stolen property and theft, yes. The Warning Appellant’s contention that the trial court erred in admitting evidence of appellant’s past convictions is not preserved under Maryland Rule 4-323(a), as appellant himself admits that he made no objection to the admissibility of his prior convictions. Thus, the current issue is waived on appeal.

Appellant argues, however, that we should consider this issue under the plain error doctrine irrespective of whether it was preserved at trial. “[W]ith respect to jury instructions, and as the cases hold with respect to errors of law generally, an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court.” Rubin v. State, 325 Md. 552, 587 , 602 A.2d 677 (1992) (quoting Dempsey v. State, 277 Md. 134 , 141 — 42, 355 A.2d 455 (1976)). See also State v. Daughton, 321 Md. 206, 210-11 , 582 A.2d 521 (1990) (“[A]n appellate court may recognize sua sponte plain error, that is, error which vitally affects a defendant’s right to a fair and impartial trial.”). In Rubin , the Court of Appeals addressed what circumstances would trigger the exercise of plain error discretion: [W]e have characterized instances when an appellate court should take cognizance of unobjected to error as compelling, extraordinary, exceptional or fundamental to assure the defendant of [a] fair trial. We further made clear that we would intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.

Rubin, 325 Md. at 588 , 602 A.2d 677 (citations and quotation marks omitted). ⁴⁴¹ In order to assess whether there was plain error, it is necessary to review the materiality of the alleged errors in the context in which they occurred. As we do so, we find that the contentions that were not preserved by appellant do not “rise to the level of the deprivation of a fair trial.” Id. We agree with appellant that the trial judge did not inform appellant that his prior convictions could be utilized to impeach him if he chose to testify. It is well-established, however, that this represents no error. “A trial judge has no obligation to advise a defendant, whether or not represented by counsel, with respect to the possibility of impeachment if the defendant elects to testify, but, if the trial judge undertakes to do so, he or she must do so correctly.” Williams v. State, 110 Md.App. 1, 32 , 675 A.2d 1037 (1996).

In Morales v. State, 325 Md. 330 , 600