Brown v. State

• Decision Date: 24 February 2003
• Docket Number: No. 37,37
• Citation: 817 A.2d 241,373 Md. 234
• Parties: Calvin BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

817 A.2d 241

373 Md. 234

Calvin BROWN v. STATE of Maryland.

No. 37, Sept. Term, 2002.

Court of Appeals of Maryland.

February 24, 2003.

Mark Colvin, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Devy Peterson Russell, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent. Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, Judge.

Calvin Brown was convicted by a jury of second degree assault in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 12A (current version at Maryland Code (2002) § 3-203 of the Criminal Law Article). Although he placed his prior conviction for possession of a controlled dangerous substance with intent to distribute before the jury in his direct examination, he contends on appeal that the trial court erred when it ruled that the evidence of his conviction was admissible for impeachment purposes. The 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 when the defendant introduces the prior conviction in his direct testimony.

Petitioner and a co-defendant were charged with assaulting Damon Mitchell, a correctional officer, as Mitchell was walking toward his home. At the conclusion of the State's case in chief, defense counsel argued to the court that although petitioner's 1993 criminal conviction fell within the universe of crimes admissible for impeachment purposes under Maryland Rule 5-609,¹ the probative value of the evidence was outweighed by the danger of unfair prejudice. The court ruled that the conviction was more probative than prejudicial and that the State would be permitted to impeach petitioner with the conviction.

Petitioner elected to testify on his own behalf. During his direct examination, petitioner admitted that he had been convicted of the criminal offense of possession with intent to distribute a controlled dangerous substance. On cross-examination, in response to the State's question, petitioner confirmed the conviction. The jury convicted petitioner and the trial court sentenced him to a term of imprisonment of eight years.

Brown noted a timely appeal to the Court of Special Appeals. In an unreported opinion, that court affirmed, holding, inter alia, that when a party introduces evidence of a criminal conviction during his or her direct testimony, any objection to the admissibility is waived. Chief Judge Murphy, in a concurring opinion, would have held that the issue was preserved for appeal but that the trial judge did not abuse his discretion in finding that the probative value outweighed the prejudicial effect. We granted Brown's petition for writ of certiorari. Brown v. State, 369 Md. 570, 801 A.2d 1031 (2002). We shall affirm the Court of Special Appeals.

Petitioner argues before this Court that the trial court erred in admitting evidence of his prior conviction for impeachment purposes. Petitioner asserts that he is entitled to introduce evidence of his prior conviction in order to minimize the prejudicial impact before the jury, and that application of the waiver rule is fundamentally unfair. On the merits, he contends that the trial court erred in admitting the conviction for impeachment purposes because the prejudicial effect substantially outweighed the probative value. Petitioner acknowledges that waiver ordinarily is a bar when a party offers evidence and on appeal objects to its introduction. Petitioner argues for an exception to the waiver rule to allow a defendant to "draw the sting" by preemptively offering evidence of prior convictions where the trial court has already "clearly and unequivocally" ruled on their admissibility.²

The act of preemptively disclosing evidence of a defendant's prior convictions on direct examination has been variously characterized as "drawing the sting," "lancing the boil," and "inoculating the jury." L. Timothy Perrin, Pricking Boils, Preserving Error: On the Horns of a Dilemma After Ohler v. United States, 34 U.C. Davis L.Rev. 615, 616 (2001). Regardless of terminology, the process of eliciting such testimony is a trial strategy designed to achieve one or more tactical advantages. The most common reasons for such disclosure include:

"(1) the trier of fact is more likely to trust and respect an advocate or a witness who `volunteers' harmful information; (2) the disclosure avoids the risk that the trier of fact will believe that the party or witness concealed the damaging material; and (3) the advocate retains a measure of control over the disclosure of the perceived weaknesses and can couch the disclosure as sympathetically as possible."

Id. at 616-17. The prevailing attitude amongst both practitioners and scholars of trial advocacy is that preemptive disclosure is a common and effective tactic for dealing with the threat of impeachment by prior conviction.³

It has been a long held principle of common law and the law of this State, however, that "a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted." Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 1853, 146 L.Ed.2d 826 (2000), citing 1 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 103.14, 103-30 (2d ed.2000); Mills v. State, 310 Md. 33, 69, 527 A.2d 3, 20 (1987),judgment vacated on other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (holding that defendant could not complain of the inadmissibility of evidence he had introduced on direct examination); Hillard v. State, 286 Md. 145, 155-56, 406 A.2d 415, 421 (1979) (reaffirming "the longstanding rule in this State ... that the admission of improper evidence cannot be used as grounds for reversal where the defendant gives testimony on direct examination that establishes the same facts as those to which he objects"); Peisner v. State, 236 Md. 137, 146, 202 A.2d 585, 590 (1964) (noting that "[w]hatever advantages the best evidence rule might have afforded the [defendant] were waived and discarded by the [defendant] himself"); Bean v. State, 234 Md. 432, 444, 199 A.2d 773, 779 (1964) (holding that "[h]aving brought up the subject, the [defendant] is hardly in a position to claim that the testimony ... was not admissible"); Jensen v. State, 127 Md.App. 103, 126-27, 732 A.2d 319, 331-32 (1999)

cert. denied, 356 Md. 178, 738 A.2d 855 (1999) (refusing to consider effect of alleged prejudicial "bad acts" evidence "because [the defendant] introduced this evidence, she cannot now complain about its admission"); Johnson v. State, 9 Md.App. 166, 177, 263 A.2d 232, 239 (1970) aff'd after remand, 9 Md.App. 436, 265 A.2d 281 (1970) (observing that "if the prior conviction was introduced by the defendant himself rather than the State, he thereby waives objection"). Maryland courts consistently have applied the waiver rule in civil cases as well. See e.g., Reed v. Baltimore Life Ins. Co., 127 Md.App. 536, 559, 733 A.2d 1106, 1118 (1999) (holding that appellant could not complain on appeal about the source of evidence when he provided the information to the court himself). This rule, recognized repeatedly by this Court, is stated in 1 J. Strong, McCormick on Evidence, § 55 (5th ed.1999):

"If a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection.... However, when his objection is made and overruled, he is entitled to treat the ruling as the `law of the trial' and to explain or rebut, if he can, the evidence admitted over his protest."

The issue petitioner presents for our review in the instant case was considered by the Supreme Court in Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). The Court, in a five-to-four decision based on non-constitutional grounds, held that a defendant waives any error in the trial court's preliminary ruling permitting impeachment by a prior conviction when the defendant preemptively introduces the evidence in her own testimony. Id. at 760, 120 S.Ct. at 1855, 146 L.Ed.2d 826. Although not binding on this Court, we agree with the majority's reasoning in Ohler. In a motion in limine, the Government sought a preliminary ruling by the trial court to determine whether the defendant's prior conviction was admissible as impeachment evidence. The trial court determined that the conviction was admissible for impeachment purposes. On direct examination, Ohler admitted her prior conviction.

On appeal, Ohler argued that it would be unfair to apply the waiver rule. She argued that although one cannot complain on appeal of evidence introduced by that person, the Court should create an exception where the conviction would be presented by the prosecution in any event. The Supreme Court declined to create such an exception, holding that "a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error." Id. at 760, 120 S.Ct. at 1855, 146 L.Ed.2d 826.

The Court noted that whatever merits Ohler's contentions may have, "they tend to obscure the fact that both the Government and the defendant in a criminal trial must make choices as the trial progresses." Id. at 757, 120 S.Ct. at 1854,146 L.Ed.2d 826. The defendant must choose whether to take the stand and testify, and if she decides to testify, she must choose whether to remove the sting or take her chances. Similarly, the Government must choose whether or not to use the defendant's prior conviction against her. As a result, "any possible harm flowing from a [trial court's] in limine ruling permitting impeachment by a prior conviction is wholly speculative." Id. at 759, 120 S.Ct. at 1854,146 L.Ed.2d 826 (quoting Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (198...