Cure v. State , 135
| Citation | 421 Md. 300,26 A.3d 899 |
| Decision Date | 16 August 2011 |
| Docket Number | Sept. Term,No. 135,2010.,135 |
| Parties | Deltavia CUREv.STATE of Maryland. |
| Court | Court of Appeals of Maryland |
OPINION TEXT STARTS HERE
Allison Pierce Brasseaux, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.Susannah E. Prucka, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.HARRELL, J.
We issued a writ of certiorari in this case to revisit a question we addressed most recently in Brown v. State, 373 Md. 234, 817 A.2d 241 (2003), namely, whether a defendant, who reveals a prior conviction in his or her direct examination during the defense case-in-chief (knowing that the trial judge ruled in limine that the State will be allowed to impeach him or her with the prior conviction in cross-examination), waives his or her right to appellate review of the trial judge's in limine ruling. Secondly, this case presents an opportunity to consider the admissibility vel non of a prior arson conviction for impeachment purposes.
Deltavia Cure (“Cure” or “Petitioner”) challenges here the judgment of the Court of Special Appeals (affirming the judgment of the Circuit Court for Baltimore City), which reasoned in its supporting opinion that, under the plurality opinion in Brown, a defendant who acknowledges, on direct examination in the defense case, the existence of a prior conviction, waives his or her right to appellate review of the trial judge's prior determination that the conviction may be used by the prosecution for impeachment purposes. Despite holding the issue to be waived, the Court of Special Appeals proceeded to reach the merits of using Cure's prior conviction for arson as impeachment evidence, explaining that the trial court did not abuse its discretion in ruling in limine that Cure's prior arson conviction was admissible for impeachment purposes.
Before this Court, Cure argues generally that, on the issue of waiver, the plurality opinion for the Court in Brown is not controlling because it represented the views of only three of the seven participating judges. Moreover, Cure contends that, knowing the State will be allowed to impeach him if he testifies, “drawing the sting out” of a prior conviction is a valid trial tactic that serves to further the policies underlying the Rules of Evidence. 1 Denying a defendant this potential tactical maneuver, by threat of waiver, disadvantages him or her unfairly. Finally, Cure avers that an arson conviction has little impeachment value and, under these facts, fails the balancing test established in Maryland Rule 5–609.
We hold, for reasons to be explained more fully infra, that when a defendant elects to testify and, in doing so, testifies affirmatively on direct examination to the existence of a prior conviction in order to “draw the sting out” of that conviction, he or she does not waive necessarily his or her right to appellate review of the merits of the trial judge's prior in limine determination that the prosecution may use the conviction for impeachment purposes. Upon reaching the merits of Cure's argument vis á vis the use of his conviction of arson for impeachment purposes, we hold that the trial judge did not abuse his discretion in ruling that Cure's prior arson conviction could be used. Accordingly, we affirm the judgment of the Court of Special Appeals.
On 14 March 2008, Baltimore City Police arrested and charged Cure with two counts of possession with intent to distribute a controlled dangerous substance, two counts of conspiracy to distribute a controlled dangerous substance, and two counts of conspiracy to possess with intent to distribute a controlled dangerous substance. The arrest followed an investigation by Detective Randolph, who testified that he observed Cure engaging in behavior resembling the dealing of drugs in the 800 block of North Bond Street in Baltimore City. According to Detective Randolph, Cure was wearing a black skull cap, a black sweatshirt with a red design on the back, and blue jeans. Cure testified, however, that at the time of his arrest, he was wearing a white hooded sweatshirt with a black fingernail design and pajama pants. Cure also denied involvement in any drug activity and contended that the police mistook him for someone else.
On the first day of his trial, 12 January 2009, Cure moved for a ruling that the prosecution not be allowed to introduce certain of Cure's prior convictions, should he testify. The following exchange occurred:
On the second day of the trial, Cure, knowing of the trial judge's ruling on his earlier motion in limine regarding use of the arson conviction, elected to testify in his own defense. Prior to testifying, Cure's attorney advised him on the record of his Fifth Amendment rights, as well as reminding him of the court's ruling that the arson conviction would be admissible for impeachment purposes during any cross-examination by the prosecutor. The following relevant exchange occurred:
During direct examination, Cure and his defense counsel attempted to “draw the sting out” 2 of his prior arson conviction by acknowledging it. The revelation unfolded as follows:
During cross-examination, the State did not inquire directly regarding the arson conviction. The only exchange in cross- examination that touched indirectly on the prior arson conviction was in Cure's response to the prosecution's questioning about the alleged accomplice (McNeil) in the present case. The exchange was as follows:
The jury returned a guilty verdict as to each count against Cure. The trial judge sentenced Cure to three concurrent ten-year terms of incarceration for the convictions for...
To continue reading
Request your trial
-
Unger v. State
...1275, 1285 (2001). This Court has not hesitated to overrule prior decisions which are clearly wrong. See, e.g., Cure v. State, 421 Md. 300, 320–322, 26 A.3d 899, 910–911 (2011) (The Court, in an opinion by Judge Harrell, overruled a prior decision of this court concerning waiver and adopted......
-
Westray v. State
...A.3d 1193 (2011); Cure v. State, 195 Md.App. 557, 561, 7 A.3d 145 (2010) (only brief summary necessary), aff'd on other grounds,421 Md. 300, 26 A.3d 899 (2011). See generally Whitney v. State, 158 Md.App. 519, 524, 857 A.2d 625 (2004); Craig v. State, 148 Md.App. 670, 674 n. 1, 814 A.2d 41 ......
-
State v. Jones
...128 A.3d 147, 159–60 (2015) ; Thompson v. UBS Fin. Servs., Inc ., 443 Md. 47, 58, 115 A.3d 125, 131 (2015) ; Cure v. State , 421 Md. 300, 320–322, 26 A.3d 899, 910–912 (2011) ; Harris v. Board of Education , 375 Md. 21, 59, 825 A.2d 365, 387–88 (2003) ; State v. Kanaras , 357 Md. 170, 184, ......
-
Myers v. State
...of Appeals, it follows a "somewhat similar approach." Id. at 162, 152 A.3d 687. In support, the Court cited to Cure v. State , 421 Md. 300, 318, 321, 26 A.3d 899 (2011), where the Court adopted the reasoning of a dissent in a "fractured" decision, noting that, "[f]or purposes of stare decis......