State v. Smyers

• Decision Date: 26 March 2004
• Docket Number: No. CR-03-0284-PR.,CR-03-0284-PR.
• Citation: State v. Smyers, 207 Ariz. 314, 86 P.3d 370 (Ariz. 2004)
• Parties: STATE of Arizona, Appellee. v. Daniel John SMYERS, Appellant.
• Court: Arizona Supreme Court

86 P.3d 370

207 Ariz. 314

STATE of Arizona, Appellee. v. Daniel John SMYERS, Appellant.

No. CR-03-0284-PR.

Supreme Court of Arizona, En Banc.

March 26, 2004.

Terry Goddard, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Jon G. Anderson, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Maricopa County Public Defender, by Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Daniel John Smyers.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 This case requires us to examine again whether a defendant must testify in order to preserve for appeal a challenge to an adverse pretrial ruling allowing the defendant's prior convictions to be admitted for impeachment purposes. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).

I.

¶ 2 On June 8, 2001, the State charged Daniel Smyers with two counts of furnishing obscene or harmful items to a minor. Prior to trial, the State filed a motion based upon Arizona Rule of Evidence 609,¹ asking permission to introduce Smyers' prior felony conviction for attempted child abuse as impeachment evidence if Smyers testified. Smyers objected, arguing that his prior conviction was not probative of the charged offense. In the alternative, Smyers argued that if the conviction were admitted, the trial court should "sanitize" the conviction to indicate only the fact of a prior conviction. The trial judge ruled that he would allow the State to introduce the name of the offense, the court, the date, and whether Smyers was assisted by counsel, but would not permit evidence describing the class or the facts of the felony. Smyers chose not to testify at trial. The jury convicted Smyers of the charged offenses.

¶ 3 On appeal, Smyers initially did not challenge the trial court's pretrial ruling. Nevertheless, the court of appeals ordered the parties to file supplemental briefs to address whether the trial court committed reversible error by conditionally admitting Smyers' prior conviction. State v. Smyers, 205 Ariz. 479, 481 ¶ 9, 73 P.3d 610, 612 (App. 2003). In doing so, the court of appeals recognized that "[i]t has been settled ... that a defendant's decision not to testify at trial serves to waive his right to challenge on appeal the trial court's ruling on the admissibility of his prior conviction." Id. at 482 ¶ 11, 73 P.3d at 613 (citing Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); State v. Lee, 189 Ariz. 608, 617, 944 P.2d 1222, 1231 (1997); State v. White, 160 Ariz. 24, 30, 770 P.2d 328, 334 (1989); State v. Correll, 148 Ariz. 468, 475, 715 P.2d 721, 728 (1986); State v. Allie, 147 Ariz. 320, 327, 710 P.2d 430, 437 (1985)).

¶ 4 Although the court of appeals recognized this binding precedent, it reframed the issue before it as follows:

[T]he issue with which we are confronted is one preliminary—and critical—to a defendant's informed decision whether to testify: Does a trial court's error with regard to the terms of the admissibility of the defendant's prior conviction for the purpose of impeaching the defendant taint the defendant's decision about testifying such that the decision cannot be found to have been a reasoned and knowing one?

Id. After finding the trial court's ruling to be in error, the court concluded that the "error cannot be considered to have been harmless" because "there is no fair assurance that Smyers' decision not to testify did not unduly affect the verdict." Id. at 484 ¶ 23, 73 P.3d at 615. The court therefore reversed Smyers' convictions. For the reasons discussed below, we vacate the opinion of the court of appeals and affirm Smyers' convictions.²

II.

¶ 5 The court of appeals erred by disregarding long-established and controlling Arizona law that requires a defendant to testify at trial before he can challenge an adverse pretrial ruling conditionally admitting prior convictions for impeachment. See, e.g., Lee, 189 Ariz. at 617, 944 P.2d at 1231; White, 160 Ariz. at 30, 770 P.2d at 334; State v. Schrock, 149 Ariz. 433, 437, 719 P.2d 1049, 1053 (1986); Correll, 148 Ariz. at 475, 715 P.2d at 728; Allie, 147 Ariz. at 327, 710 P.2d at 437; State v. Barker, 94 Ariz. 383, 386, 385 P.2d 516, 518 (1963).

¶ 6 We first stated this rule more than forty years ago in Barker, 94 Ariz. at 386, 385 P.2d at 518. Barker claimed that the trial court erred in denying his motion to direct the State "to refrain from cross-examining him on a former conviction for manslaughter which occurred some sixteen (16) years prior." Id. at 385, 385 P.2d at 517. Barker argued that the denial of his motion to preclude the use of his prior conviction "prevented him from taking the witness stand and testifying on his own behalf." Id. Rejecting the defendant's argument, this court stated:

The State argues that there is nothing before this Court on which to predicate a reversal of the trial court, that having received this adverse ruling appellant should have proceeded with his case by taking the stand then raising the question if the State attempted to establish the prior conviction. We are in agreement with the position adopted by the State. First, the appellant is assuming that had defendant taken the stand the county attorney would have used the prior manslaughter conviction by attempting to impeach his credibility. Second, appellant is assuming that the trial court would have adhered to its initial ruling.. . .

Id. at 386, 385 P.2d at 518.

¶ 7 More than twenty years later, the United States Supreme Court reached the same conclusion when it examined whether a non-testifying defendant "is entitled to review of the District Court's ruling denying his motion to forbid the use of a prior conviction to impeach his credibility." Luce, 469 U.S. at 39, 105 S.Ct. 460. In Luce, the defendant moved to prevent the use of a prior conviction to impeach him if he testified. Id. The district court denied the motion, finding the conviction admissible under Federal Rule of Evidence 609(a). On appeal, the circuit court held that when a defendant does not testify, it will not review the district court's ruling. Id. at 39-40, 105 S.Ct. 460.

¶ 8 The Supreme Court agreed that a defendant must testify in order to raise and preserve for review the claim of improper impeachment with a prior conviction. Id. at 43, 105 S.Ct. 460. In reaching this conclusion, the Court recognized that a "reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context." Id. at 41, 105 S.Ct. 460. Specifically, the Court reasoned that the absence of the defendant's testimony deprives the court of information that is essential to weighing the probative value against the prejudicial effect of the use of the conviction. Id.

¶ 9 Next, the Court explained, without the defendant's testimony, any harm to the defendant is speculative because the trial court's ruling is subject to change and a reviewing court "has no way of knowing whether the Government would have sought to impeach with the prior conviction." Id. at 41-42, 105 S.Ct. 460. In addition, because "an accused's decision whether to testify `seldom turns on the resolution of one factor,'" a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify. Id. at 42, 105 S.Ct. 460 (quoting New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissenting)). Finally, "[e]ven if these difficulties could be surmounted," the Court added, a reviewing court could not determine if any error is harmless. Id. "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." Id. Based on these reasons, the Court concluded that "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Id. at 43, 105 S.Ct. 460.

¶ 10 Less than a year after the Supreme Court decided Luce, this court, "to clear up some confusion that ha[d] arisen in the lower courts," reiterated the "well settled" rule that, under Arizona law, a defendant who does not testify at trial cannot, on appeal, challenge an adverse pretrial ruling conditionally admitting a prior conviction for impeachment purposes. Allie, 147 Ariz. at 327, 710 P.2d at 437. In Allie, a jury convicted the defendant of one count of burglary and one count of armed robbery. Id. at 322, 710 P.2d at 432. Prior to trial, the State sought to introduce Allie's two prior felony convictions into evidence. After conducting a pretrial hearing on this issue, the trial court ruled that Allie's prior convictions would be admissible to impeach Allie if he took the stand. Allie chose not to testify. Id. at 327, 710 P.2d at 437.

¶ 11 On appeal, Allie challenged the trial court's pretrial ruling. Id. Reasoning that "his right to testify outweighs the possible probative value of admitting his prior convictions, especially when combined with the risk that the jury would not respond to a limiting instruction," Allie urged this court to adopt a rule that would "altogether preclude impeachment of a defendant with his prior convictions." Id. Without examining the merits of Allie's argument, we reiterated the rule that a defendant must testify at trial to preserve a challenge to an adverse pretrial ruling allowing a prior conviction to be admitted. Id.

¶ 12 In the twenty years following Allie, this court has consistently and unequivocally applied the Allie rule in holding that a non-testifying defendant cannot challenge a trial court's pretrial ruling that a prior conviction may be used to impeach him. See Lee, 189 Ariz. at 617, 944 P.2d at 1231; White, 160 Ariz. at 30-31, 770 P.2d at 334-35; Schrock, 149 Ariz. at...