Cure v. State, 2739, Sept. Term, 2008.

• Court: Court of Special Appeals of Maryland
• Citation: 195 Md.App. 557,7 A.3d 145
• Docket Number: No. 2739, Sept. Term, 2008.,2739, Sept. Term, 2008.
• Parties: Deltavia CURE v. STATE of Maryland.
• Decision Date: 28 October 2010

7 A.3d 145

195 Md.App. 557

Deltavia CURE

v.STATE of Maryland.

No. 2739, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Oct. 28, 2010.

Allison Pierce Brasseaux (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Susannah E. Prucka (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: EYLER, JAMES R., WOODWARD and FREDERICK J. SHARER (Retired, Specially Assigned), JJ.

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,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].

[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 thatinto 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.

[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 forabsolutely 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 outweighits prejudicial effect. In fact, Cure contends that the impeachment value of an arson conviction is "virtually non-existent," 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 byBailey 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...