Dallas v. State

• Decision Date: 26 April 2010
• Citation: 993 A.2d 655,413 Md. 569
• Parties: Isaac E. DALLAS, v. STATE of Maryland.
• Court: Maryland Court of Appeals

993 A.2d 655

413 Md. 569

Isaac E. DALLAS, v. STATE of Maryland.

No. 17 September Term, 2009.

Court of Appeals of Maryland.

April 26, 2010.

Geraldine K. Sweeney, Chief Atty. (Nancy S. Forster, Public Defender, Baltimore, MD), on brief for Petitioner.

Jessica V. Carter, 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.

BARBERA, Judge.

Petitioner Isaac E. Dallas was convicted of possession of cocaine with the intent to distribute that controlled dangerous substance and related offenses. During trial, Petitioner sought a ruling concerning whether the court would permit the State, under Maryland Rule 5-609,¹ to impeach him with two felony drug convictions if he testified. The court decided that any ruling concerning the admissibility of such evidence must await Petitioner's direct testimony, if any. Petitioner elected not to testify.

Petitioner contends that the court's deferral of its ruling on the admissibility of the impeachment evidence impermissibly chilled his right to make a free election to testify or remain silent. This, Petitioner claims, was an abuse of the court's discretion, entitling him to a new trial. For the reasons that follow, we hold that, under the circumstances of this case, the court did not abuse its discretion in deferring its ruling until after Petitioner testified.

I.

The genesis of this case was a traffic stop of a car in which Petitioner was riding. During a search of Petitioner at the scene of the stop, the police found a clear plastic bag containing marijuana and crack cocaine. When the police advised Petitioner that he was under arrest, he said: "I'm a three-time loser and I'm facing 25 years. Can't you say you just found the stuff on the ground?"²

The State later charged Petitioner in the Circuit Court for Harford County with possession of marijuana, possession of cocaine, and possession with intent to distribute cocaine. Petitioner filed a pre-trial motion in limine to preclude the State from presenting evidence of the portion of the above-mentioned statement in which he said, "I'm a three-time loser and I'm facing 25 years." The trial court granted the motion and precluded the State from using in its case-in-chief any evidence of Petitioner's "prior bad acts or convictions or admissions that relate directly to the crimes charged." The court reserved its ruling on whether the State would be permitted to use Petitioner's statement and prior convictions to impeach his credibility.

Petitioner made clear during his opening statement his theory of defense against the felony charge. Petitioner, through counsel, conceded that he possessed both marijuana and cocaine at the time in question but denied that he possessed the cocaine with the intent to distribute it. Following the State's case, defense counsel sought a ruling that the State be prohibited from impeaching Petitioner with his prior convictions of distribution and possession of cocaine with the intent to distribute that substance. The court concluded that the evidence of those convictions was relevant to Petitioner's credibility and ruled the evidence admissible for impeachment purposes.³ Petitioner elected not to testify.

Following a short recess, but before the jury returned to the courtroom, the court rescinded its ruling. The court explained its reasoning:

Counsel, I was thinking after I left the courtroom, that I may have been precipitous in my ruling to permit impeachable offenses. The reason being is that there is a balancing test that has to be made, and I made perhaps an assumption that I should not have made.

In making that decision, I have to consider the impeachable balance of the prior crime, the impeachable value of the prior crime. The relevance of the conviction, the witness' subsequent history, the importance of the witness' credibility to the case, and the risk of unfair prejudice.

We really didn't get into a couple of those elements, No. 1; and No. 2, I made the assumption as to the importance of the witness' credibility, something that I really can't make at this juncture.

He hadn't said anything. I was assuming—I really don't know what he's going to say, and therefore, I should not have indicated. I should not have ruled that the risk of unfair prejudice did not outweigh the probative value. I'm going to reverse my ruling. My ruling was precipitous.

I think the proper procedure in this case is only to make a ruling after your client testifies and before there's any cross-examination to make the decision and to apply the balance of sic test in this case.

So I'm reversing my ruling. I make no finding at this point as to whether or not the probative value of the prior convictions outweighs any unfair prejudice to your client.

I think you need to, upon that basis, re-qualify your client at this juncture, defense counsel, and my prior ruling is no indication of what it may be. I need to hear what he has to say.

The court instructed defense counsel to re-qualify his client. During that colloquy, Petitioner asked: "So he the prosecutor can use—it all depends on what I say?" The court responded: "Depends on what you say, and depends on whether or not how important your credibility is going to be. I don't know until you say it. That's my problem. I'm going to have to consider what you say and then make a decision. I think that's the proper procedure."

After further discussion, the State suggested that the defense be permitted to proffer Petitioner's testimony. The court rejected the State's suggestion, stating that the court "needed to hear the actual testimony" before ruling.

The judge then asked Petitioner if he wished to testify. He responded that he did not. The court asked Petitioner if he was sure of that decision, "knowing the fact that there is a possibility that I might rule to your favor and not permit impeachable offenses?" and "knowing the fact that I have already said that I do recognize there's a high risk of unfair prejudice?" Petitioner again stated that he did not wish to testify. Defense counsel did not object to any aspect of the court's decision to defer its ruling on the admissibility of the State's proposed impeachment evidence, nor did counsel argue that the court's deferral of its ruling on the admissibility of impeachment evidence chilled Petitioner's right to make a free election. The defense rested without putting on any evidence. The jury convicted Petitioner of all three charged offenses.

The Appeal

Petitioner raised a single issue on appeal to the Court of Special Appeals: "Did the trial court err in refusing to rule on the admissibility of prior convictions under Md. Rule 5-609 until after Appellant completed his direct testimony before the jury?" The State countered that Petitioner, by opting not to testify, did not preserve his challenge to the court's decision to await his direct testimony before ruling on the admissibility of the State's proposed impeachment evidence. The State further argued that, even if Petitioner's claim was preserved for review, the trial court did not abuse its discretion in deferring its ruling until after Petitioner testified on direct.

The Court of Special Appeals affirmed the convictions, holding in an unreported opinion that Petitioner failed to preserve the claim for review because he decided not to testify. The court therefore did not address whether the trial court abused its discretion in deferring its ruling on the admissibility of the evidence of Petitioner's prior convictions.

We granted Petitioner's petition for writ of certiorari to answer the following question: "Did the trial court err in refusing to rule on the admissibility of prior convictions under Md. Rule 5-609 until after Petitioner completed his direct review testimony before the jury?" Dallas v. State, 407 Md. 529, 967 A.2d 182 (2009).

II.

Before discussing the merits of the question on which we granted review, we must address the parties' dispute concerning whether Petitioner's decision not to testify forecloses his challenge to the trial court's deferral of its Rule 5-609(a) ruling. The State relies, as it did in the Court of Special Appeals, on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), and Jordan v. State, 323 Md. 151, 158-59, 591 A.2d 875, 878-79 (1991), which applied the Luce rationale in a related context. Petitioner counters that the rationale of Luce and Jordan does not apply to the claim he has raised in this appeal.⁴ To resolve the parties' disagreement we must undertake a somewhat detailed examination of those and other cases on the subject.

In Luce, the defendant Luce, who faced charges of conspiracy and possession of cocaine with intent to distribute, sought by way of a pre-trial motion in limine to preclude the government from impeaching him with evidence of his prior conviction for possession of a controlled substance. The District Court denied the motion, ruling that, although evidence of the prior conviction constituted permissible impeachment evidence under Federal Rule of Evidence 609(a), "the nature and scope of Luce's trial testimony could affect the court's specific evidentiary rulings." 469 U.S. at 40, 105 S.Ct. at 462, 83 L.Ed.2d at 446. The District Court added that it "was prepared to hold that the prior conviction would be excluded if Luce limited his testimony to explaining his attempt to flee from the arresting officers. However, if Luce took the stand and denied any prior involvement with drugs, he could then be impeached by the prior conviction." Id., 105 S.Ct. at 462, 83 L.Ed.2d at 446-47. Luce opted not to testify, and the jury returned guilty verdicts. Id., 105 S.Ct. at 462, 83 L.Ed.2d at 446-47.

The United States Court of Appeals for the Sixth Circuit affirmed. That court "refused to consider Luce's contention that the District Court abused its discretion...