State v. Derby

• Decision Date: 03 June 2011
• Docket Number: No. 09–1711.,09–1711.
• Citation: 800 N.W.2d 52
• Parties: STATE of Iowa, Appellee,v.Justin Robert DERBY, Appellant.
• Court: Iowa Supreme Court

800 N.W.2d 52

STATE of Iowa, Appellee,

v.Justin Robert DERBY, Appellant.

No. 09–1711.

Supreme Court of Iowa.

June 3, 2011.

Mark C. Smith, State Appellate Defender, Nnawuihe Ukabiala, Student Legal Intern, and David Arthur Adams, Assistant State Appellate Defender, for appellant.Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and Darin J. Raymond, County Attorney, for appellee.WATERMAN, Justice.

The threshold question in this case is whether a defendant who declines to testify can obtain a reversal of his conviction by appealing a pretrial order in limine that would have allowed the State to impeach him with evidence of his prior convictions if he testified. In State v. Brown, 569 N.W.2d 113, 117–18 (Iowa 1997), we held the defendant must testify in order to preserve error to challenge the use of his prior convictions as impeachment. Defendant, Justin Derby, asks us to overrule Brown in light of State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) (allowing testifying defendant who preemptively discloses his own convictions on direct examination to appeal pretrial in limine ruling) and cases from other jurisdictions. We conclude there is no persuasive reason to depart from stare decisis and decline to do so. We recognize the Brown approach left Derby a Hobson's choice between remaining silent or testifying in his own defense at the price of opening the door to impeachment evidence informing the jury of his prior crimes. As we explain below, Brown is based on sound reasons and remains the rule followed by a majority of states and the federal courts under the unanimous decision in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Accordingly, we affirm the decision of the court of appeals and the district court's judgment.

I. Background Facts and Proceedings.

Derby was charged by trial information with third-degree burglary, five counts of forgery, and escape from custody. The trial information alleged Derby was a habitual offender and referenced two previous felonies. Derby pleaded not guilty to all charges, and his case proceeded to a jury trial. On the morning of trial, Derby presented the district court with an oral motion in limine seeking to exclude the admission of Derby's prior convictions. Derby had previously been convicted of theft and burglary. The district court partially sustained Derby's motion and prevented the State from using Derby's prior convictions in its case in chief. The district court overruled Derby's motion in limine “to the extent that it s[ought] to bullet-proof ... the defendant from being impeached [with his prior felony convictions].” The district court then stated:

Obviously, I don't know what answers the defendant might give to what questions he might be asked. But at this point in time, based upon anticipated testimony from him, if he chooses to testify, his prior convictions, together with the curative instruction, is the way the court will proceed.

Derby sought clarification that the district court was only permitting the State to potentially impeach Derby with his prior theft and burglary convictions referenced in the trial information and not Derby's entire criminal record. The district court responded, “Obviously impeachment testimony ... wouldn't be limited to what's in the trial information.... It's pretty hard to rule on an objection when you don't know the question ....”

After this colloquy, Derby elected not to testify. At the trial's conclusion, Derby stated he would have testified if the district court had ruled favorably on his motion in limine. Derby was convicted by jury of third-degree burglary, five counts of forgery, and escape from custody. Derby stipulated to being a habitual offender. The district court sentenced Derby to seven concurrent fifteen-year sentences, each subject to a three-year mandatory minimum. Derby was also ordered to pay restitution.

Derby filed a notice of appeal, asserting the district court committed reversible error in overruling his motion in limine. We transferred the case to the court of appeals. The court of appeals, citing Brown, 569 N.W.2d at 117–18, held Derby failed to preserve his claim because he elected not to testify. We granted further review to examine Brown's viability in light of subsequent decisions.

II. Preservation of Error.

Iowa Rule of Evidence 5.609 governs the admissibility of prior convictions for impeachment purposes. Derby concedes he has not preserved error under the standard articulated in Brown. Brown holds that, if a defendant does not testify, the defendant does not preserve error to appeal the district court's in limine ruling with respect to rule 5.609 issues. Derby in a frontal attack asks us to overturn Brown. Derby argues this court's decision in Daly, 623 N.W.2d at 801, and decisions of other jurisdictions, undermine our reasoning in Brown and warrant its demise. We begin by examining Brown.

A. State v. Brown. In Brown, the defendant filed a motion in limine to prevent the State from using his criminal record to impeach his testimony. Brown, 569 N.W.2d at 117. The district court denied his motion, and in response, Brown elected not to testify. Id. Brown was convicted, and he appealed the district court's in limine ruling. Id. at 115. Brown insisted he should not be required to testify to preserve his challenge to the district court's rule 5.609 in limine ruling. Id. at 118. Brown argued such an error-preservation requirement forces the defendant into an untenable predicament: either testify with fear the State will use arguably improper prior conviction evidence to impeach but preserve error on the evidence's admissibility, or forgo the right to testify and ability to appeal the district court's in limine ruling while avoiding arguably improper use of prior conviction evidence. Id.

We initially observed, “A clear rule ... prevents Brown from challenging the pretrial ruling in the abstract. Brown was required to testify at trial and face the challenged evidence before complaining of it.” Id. We cited to State v. Davis, 328 N.W.2d 301, 306 (Iowa 1982), as precedent for this rule. Id. In Davis, we held “a defendant must take the stand and testify and the prosecutor must use the statement to impeach before a defendant can raise a constitutional claim ... that his prior statement could not be used for impeachment.” Davis, 328 N.W.2d at 306. We articulated three reasons for our holding: (1) to hold otherwise permits the accused to plant reversible error merely by not testifying, (2) the defendant's harm—the admission of the evidence—is entirely speculative absent the defendant's testimony, and (3) without the defendant's testimony there is not an adequate record to perform a harmless-error analysis. See id. at 306–07. In Brown, we reiterated these three reasons as grounds for our result. Brown, 569 N.W.2d at 118. In Brown, we also cited to Luce v. United States, in which a unanimous Supreme Court held a defendant must testify in order to preserve error to challenge the district court's in limine ruling permitting the government to use prior conviction evidence for impeachment purposes. Luce, 469 U.S. at 39–40, 105 S.Ct. at 462–63, 83 L.Ed.2d at 446.

Like Davis, Brown and Luce's holdings are dictated by the practical realities of appellate review. First, we only reverse a trial court's evidentiary ruling if “a substantial right of the party is affected.” Iowa R. Evid. 5.103( a ). “Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term ‘harmless' an error that presumptively kept the defendant from testifying.” Luce, 469 U.S. at 42, 105 S.Ct. at 463–64, 83 L.Ed.2d at 448. In the event the trial court did error, requiring the defendant to testify allows the appellate court to accurately determine prejudice based upon a complete record. Absent such a rule, the defendant can attempt to “plant” reversible error simply by not testifying anytime the trial court declines the defendant's rule 5.609( a ) motion in limine. Id. Luce and Brown avoid automatic retrials based on erroneous in limine rulings.

Second, without the defendant's testimony, his harm is entirely speculative because the defendant's prior convictions are never admitted in trial. Id. at 41, 105 S.Ct. at 463, 83 L.Ed.2d at 447; Brown, 569 N.W.2d at 118. The reviewing court is left to guess as to how the trial would have developed. Maybe the State would impeach the defendant with his prior convictions, or potentially the trial court could reverse its in limine ruling due to trial developments, or maybe the State might find it unnecessary to use the convictions to impeach. When the defendant does not testify he effectively freezes review of the district court's in limine ruling to the limited information known pretrial. Brown, 569 N.W.2d at 118. Moreover, a defendant may elect to not testify for any number of tactical reasons, and an appellate court cannot determine if the defendant's decision is predicated on the trial court's prior conviction ruling or some other strategic decision. Id. When the defendant does not testify, the entire dispute is theoretical and speculative.

Finally, the prior conviction evidentiary analysis articulated in Iowa Rule of Evidence 5.609( a ) and its federal rule counterpart asks the court to weigh the probative value of the defendant's prior convictions against its prejudicial effect. See Iowa R. Evid. 5.609( a )(1) (“[E]vidence 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[.]”). The court is handicapped in performing this fact-specific balancing when it does not have a complete trial record with the defendant's testimony and impeachment. Luce, 469 U.S. at 41, 105 S.Ct. at 463, 83...