State v. Daly

• Court: Iowa Supreme Court
• Writing for the Court: LARSON, Justice.
• Citation: State v. Daly, 623 N.W.2d 799 (Iowa 2001)
• Decision Date: 14 February 2001
• Docket Number: No. 98-1968.,98-1968.
• Parties: STATE of Iowa, Appellee, v. Larry James DALY, Appellant.

623 N.W.2d 799

STATE of Iowa, Appellee, v. Larry James DALY, Appellant.

No. 98-1968.

Supreme Court of Iowa.

February 14, 2001.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Jamie Bowers, Assistant County Attorney, for appellee.

Considered en banc.

LARSON, Justice.

Larry James Daly was convicted of possession of methamphetamine with intent to deliver, failure to possess a tax stamp, and possession of marijuana in violation of Iowa Code sections 124.401(1)(b)(7); 453B.3, 453B.12; and 124.401(5) (1997), respectively. He appealed, raising various issues, including the district court's ruling allowing evidence of his prior drug convictions. The court of appeals affirmed. We vacate the court of appeals decision, reverse the judgment of the district court, and remand.

Daly was charged with these offenses in late 1997. On February 3, 1998, he filed a motion in limine, seeking to exclude evidence of his prior convictions for identical narcotics crimes in 1993, citing Iowa Rule of Evidence 403 (exclusion of relevant evidence if it is "substantially outweighed by the danger of unfair prejudice"); rule 404(b) (prior "bad acts" evidence); and rule 609 (impeachment by evidence of prior convictions).

The general rule regarding claimed error in admission of evidence, when the issue has been raised in a motion in limine, has recently been stated by this court:

Ordinarily, error claimed in a court's ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. However, "where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial, there is no reason to voice objection at such time during trial. In such a situation, the decision on the motion has the effect of a ruling."

State v. Tangie, 616 N.W.2d 564, 568-69 (Iowa 2000) (quoting State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975)) (other citations omitted).

The district court, prior to trial, ruled that the motion in limine was overruled as to the defendant's rule 609 claim, and the ruling on his rule 404(b) claim would be reserved until trial. Defense counsel then inquired, "May I consider the second part of the court ruling [rule 609 impeachment] the final order of the court then?" The court responded, "Yes, sir." We conclude the defendant's rule 609 claim was resolved "in such a way it is beyond question" what the court's ruling would be at trial. This avoided the necessity of Daly objecting again at trial in order to preserve error.

At trial the court sustained Daly's objection to the State's attempt to enter evidence of the circumstances surrounding the convictions under rule 404(b). However, Daly still faced impeachment with the convictions upon cross-examination during the presentation of his case in chief. The defendant, having lost his legal argument under rule 609, preemptively raised the matter of his prior convictions in his own testimony. Daly's attorney engaged him in the following colloquy:

Q. Let's get one thing out right now, Mr. Daly. You've been convicted of crimes in the past, haven't you? A. Yes.

Q. What crimes were you convicted of? A. Possession with intent to deliver methamphetamine, failure to possess drug stamp and possession of marijuana.

Q. And when was that? A. Pardon me?

Q. When was that? A. 1993.

Q. Found guilty by a jury? A. No, I pleaded guilty.

Daly contends the court's order admitting evidence of his convictions forced him to raise the issue of his own conviction by preemptively testifying to it in his case in chief. This raises the issue of whether he thereby waived any objection to the court's ruling on his motion in limine. After the briefs were filed in this case, the United States Supreme Court in a five-to-four decision concluded a defendant waives any error in the court's preliminary ruling allowing conviction evidence by preemptively raising the matter in her own testimony. See Ohler v. United States, 529 U.S. 753, 759, 120 S.Ct. 1851, 1855, 146 L.Ed.2d 826, 832 (2000) ("[W]e conclude 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."). The four-justice dissent in Ohler noted the district court's in limine ruling forced the defendant's attorney to raise the issue because "defense lawyers do not set out to impeach their own witnesses, much less their clients." Id. at 761, 120 S.Ct. at 1856, 146 L.Ed.2d at 833 (Souter, J., dissenting). In such a case, the dissent notes, "the defendant has opposed admission of the evidence and introduced it herself only to mitigate its effect in the hands of her adversary." Id. at 761, 120 S.Ct. at 1856, 146 L.Ed.2d at 834. It has been said "[i]t is common for witnesses to reveal on direct examination their convictions to `remove the sting' of the impeachment." Fed.R.Evid. 609(a) advisory committee's note to 1990 amendment.

One problem with effectively forcing a defendant's preemptive introduction of the evidence and then holding he waives any objection to the court's ruling is that "a testifying defendant perforce waives the right to appeal an adverse in limine ruling admitting prior convictions for impeachment." Ohler, 529 U.S. at 760, 120 S.Ct. at 1855, 146 L.Ed.2d at 833 (Souter, J., dissenting). Moreover, the rule of waiver is contrary to established precedent in this state. See, e.g., State v. Jones, 271 N.W.2d 761, 766 (Iowa 1978).

Where the issue is fully argued and [the] trial court, carefully apprised of defendant's objection, rules evidence of prior convictions admissible, we are not convinced defendant must abandon all trial tactics to preserve error. We hold defendant has not waived his right to assert error in this instance.

Id.; accord State v. Griffin, 323 N.W.2d 198, 202 (Iowa 1982). We decline to follow Ohler and conclude Daly has not waived his right to object to the court's admission of the evidence.

The State contends Daly failed to raise the rule 609 issue before the trial court. We disagree; while the defendant's trial counsel intermixed his arguments under rule 404(b) (prior "bad acts" evidence) and rule 609 (impeachment by evidence of prior convictions), we believe a fair reading of his motion in limine raised the issue. It stated:

The [conviction] evidence is ... inadmissible for impeachment purposes under Iowa R. Evid. 609. Pursuant to the 1996 amendment to the rule, evidence of any conviction punishable in excess of one year of incarceration is admissible for impeachment purposes. Prior to admission, however, the court must determine that "the probative value of admitting the evidence outweighs its prejudicial effect to the accused." Iowa R.Evid. 609(a)(1).

Because we conclude the rule 609 issue now raised was adequately preserved in the district court, it is unnecessary for us to consider Daly's alternative claim of ineffective assistance of counsel.

Rule 403 requires a balancing of probative value against the danger of unfair prejudice in this language:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 609 covers impeachment of a witness by evidence of a prior conviction. It provides:

(a) General Rule. For the purpose of attacking the credibility of a witness:

(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

(Emphasis added.)

There is an obvious difference in the language of rules 403 and 609 with respect to their probative-value/prejudice analyses concerning an accused as a witness. Rule 403 says evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 609 provides evidence shall be admitted if the court determines the probative value outweighs its prejudicial effect. Daly complains that the district court did not make a determination on this question.

It is true, as the State argues, trial courts are given considerable discretion in most evidentiary rulings. See, e.g., State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994). However, we do not view this case as...