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
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.
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.
FACTS AND LEGAL PROCEEDINGS
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"
During cross-examination, the State did not inquire directly regarding the arson conviction. The only exchange in cross-examination
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 possession with intent to distribute heroin, possession with intent to distribute cocaine, and conspiracy to distribute heroin.
Cure appealed timely to the Court of Special Appeals, arguing that the trial court abused its discretion by ruling that he could be impeached with his prior arson conviction. The Court of Special Appeals, in a reported opinion, Cure v. State, 195 Md.App. 557, 561, 7 A.3d 145, 147 (2010), and relying upon Brown, held that by introducing the conviction during direct examination, Cure waived his right to appellate review of the trial court's in limine decision to allow the State to impeach him with the prior arson conviction. See Cure, 195 Md.App. at 573, 7 A.3d at 154 ("As we perceive no reason why the contemporaneous objection rule[
Even though the Court of Special Appeals held that Cure waived his right to
For reasons to be explained more fully infra, we hold that, on this record, Cure did not waive his ability to seek appellate review of the trial judge's ruling that the prior conviction for arson may be used potentially for impeachment purposes. On the merits of Cure's argument regarding the impeachment value of a prior arson conviction, we hold that the trial court did not abuse its discretion by allowing use of Cure's prior arson conviction.
In Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), the United States Supreme Court addressed whether a defendant's "drawing the sting out" of a prior conviction by testifying regarding the conviction on direct examination amounts to waiver of appellate review of the conviction's admissibility for impeachment purposes. Maria Ohler was charged with the importation of and possession with intent to distribute marijuana. Ohler, 529 U.S. at 754-55, 120 S.Ct. at 1852, 146 L.Ed.2d at 829. The Government filed pre-trial motions seeking an in limine ruling on whether Ohler's prior conviction for possession of methamphetamine could be used as either character or impeachment evidence. See Ohler, 529 U.S. at 755, 120 S.Ct. at 1852, 146 L.Ed.2d at 829. Although the federal district court ruled that the conviction would not be allowed as character evidence, it held that the conviction could be used as impeachment evidence. Id. Upon direct examination during the defense case-in-chief, presumably to "draw the sting out" of the conviction, Ohler testified regarding her prior conviction. See id. Ultimately, she was convicted on both of the marijuana counts. Id. Ohler appealed on the ground that it was improper for her prior conviction for possession to be used as impeachment evidence. Ohler, 529 U.S. at 755, 120 S.Ct. at 1852-53, 146 L.Ed.2d at 829-30. The Court of Appeals for the Ninth Circuit affirmed, holding that, by testifying to the conviction under direct examination, Ohler waived the issue for appellate review.
In a five-to-four decision, the U.S. Supreme Court held that the issue was waived on appeal, reasoning that, "[g]enerally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted." Ohler, 529 U.S. at 755, 120 S.Ct. at 1853, 146 L.Ed.2d at 830. The Court also rejected Ohler's argument that applying the waiver rule in this situation "compels a defendant to forgo the tactical advantage of pre-emptively introducing the conviction in order to appeal the in limine ruling," explaining that, ultimately, both sides must make many strategic choices during trial. Ohler, 529 U.S. at 757, 120 S.Ct. at 1853, 146 L.Ed.2d at 830-31; see Ohler, 529 U.S. at 757, 120 S.Ct. at 1854, 146 L.Ed.2d at 831 ("Whatever the merits of these contentions, they tend to obscure the fact that both the Government and the defendant in a criminal trial must make choices as the trial progresses."). To highlight this particular tactical crossroads, the Court stated:
Ohler, 529 U.S. at 758, 120 S.Ct. at 1851, 146 L.Ed.2d at 831. Finally, the Court reasoned that, as held in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984),
Justice Souter's dissent rejected the Majority's reliance upon Luce. See Ohler, 529 U.S. at 761, 120 S.Ct. at 1856, 146 L.Ed.2d at 833 (Souter, J., dissenting).
The main thrust of Justice Souter's dissent addressed the Majority's stance that "there is nothing `unfair' . . . about putting petitioner to her choice in accordance with the normal rules of trial." Ohler, 529 U.S. at 763, 120 S.Ct. at 1857, 146 L.Ed.2d at 834-35. Justice Souter argued that "[a]ny claim of a new rule's fairness under normal trial conditions will have to stand or fall on how well the rule would serve the objects that trials in general, and the Rules of Evidence in particular, are designed to achieve." Ohler, 529 U.S. at 763, 120 S.Ct. at 1857, 146 L.Ed.2d at 835. The Rules are structured, Justice Souter averred, to facilitate the pursuit of truth rather than to outline particular trial strategies. See id. ("The question is not which side gains a tactical advantage, but which rule assists in uncovering the truth."). "Drawing the sting out" of a prior conviction is, therefore, a valid trial tactic because of the prejudicial effect that might result if a defendant was perceived as concealing the full truth. See Ohler, 529 U.S. at 764, 120 S.Ct. at 1857, 146 L.Ed.2d at 835 ("The jury may feel that in testifying without saying anything about the convictions the defendant has meant to conceal them. The jury's assessment of the defendant's testimony may be affected not only by knowing that she has committed crimes in the past, but by blaming her for not being forthcoming when she seemingly could have been."). Because "drawing the sting out" avoids this unnecessary prejudice, the dissent explained, "[a]llowing the defendant to introduce the convictions on direct examination thus tends to promote fairness of trial without depriving the Government of anything to which it is entitled." Id. According to the Ohler dissent, as the underlying purpose of the Rules are served, a rule that punishes a defendant for utilizing this valid trial tactic with waiver of right to appeal is unnecessary. Ohler, 529 U.S. at 764, 120 S.Ct. at 1857-58, 146 L.Ed.2d at 835.
The majority of state appellate courts to consider the issue, after Ohler, rejected the reasoning of the Ohler Majority. Although Ohler is binding on federal courts, it is not binding on state courts because the waiver issue does not implicate federal constitutional principles that are mandatory upon state courts. See Danforth v. Minnesota, 552 U.S. 264, 280, 128 S.Ct. 1029, 1041, 169 L.Ed.2d 859, 871 (2008) ("This [federal] interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees."). One reason many state appellate courts rejected the Majority's rationale in Ohler was because the decision ran contrary to preexisting state precedents. See e.g., State v. Swanson, 707 N.W.2d 645, 654 (Minn.2006) ("In light of our prior decisions on these issues, we hold that a defendant who testifies about his convictions on direct examination after denial of
Pre-Ohler contrary state precedents aside, other courts that have addressed the Ohler majority's reasoning have been disinclined to follow its lead, favoring, rather, the reasoning of Justice Souter's dissent. See Pineda v. State, 120 Nev. 204, 88 P.3d 827, 831 (2004) ("States that have rejected Ohler have done so because a trial court is fully aware of the proposed evidence and law when ruling on such evidence in limine, and it is a poor trial tactic for defense attorneys to wait for the prosecution to introduce such evidence on cross-examination."); Zola v. Kelley, 149 N.H. 648, 826 A.2d 589, 593 (2003) ("We therefore decline to follow Ohler and conclude that when a trial judge makes a definitive pretrial ruling that evidence of a prior conviction is admissible, a party's preemptive introduction of that evidence does not automatically waive the issue for appellate review."); State v. Keiser, 174 Vt. 87, 807 A.2d 378, 388 (2002) ("Without recounting at length the other reasons and authority cited by the dissent in Ohler for not finding waiver in circumstances such as these, we adopt its reasoning in concluding that defendant did not waive his objection to the admission of his prior DWI's when he testified to them on direct examination rather than waiting for the State to elicit them."); State v. Thang, 145 Wn.2d 630, 41 P.3d 1159, 1168 (2002) ("We agree with Justice Souter's analysis. A defense lawyer who introduces preemptive testimony only after losing a battle to exclude it cannot be said to introduce the evidence voluntarily.").
In Maryland, we spoke to this issue in Brown. Calvin Brown, who was on trial for second degree assault, had been convicted previously of possession of a controlled dangerous substance with intent to distribute. See Brown, 373 Md. at 235, 817 A.2d at 242. At the close of the State's case, Brown argued to the trial judge that the prior conviction should not be admissible as impeachment evidence, as the risk of unfair prejudice outweighed its probative value. Brown, 373 Md. at 236, 817 A.2d at 242. The trial court disagreed. Id. Following this ruling,
Id. Brown appealed to the Court of Special Appeals, which affirmed in an unreported opinion. Id. Before the Court of Appeals, Brown (similar to Cure) argued, that (1) "drawing the sting out" of a prior conviction should not constitute a waiver of appellate review as to the admissibility of that conviction for impeachment purposes, and (2) that his prior conviction for possession with intent to distribute was more prejudicial than it was probative of his character for truthfulness. See Brown, 373 Md. at 237, 817 A.2d at 242-43. The Court fractured on how to decide the case. As Judge Wilner explained in dissent:
Brown, 373 Md. at 251-52, 817 A.2d at 251-252. This "peculiar setting" is what the Court of Special Appeals identified here as creating ambiguity in the ultimate holding of the Court, and merits us revisiting the question of whether a defendant waives his or her right to appellate review of the admissibility of a prior conviction for impeachment purposes when, under direct examination in the defense case, he or she attempts to "draw the sting out" of the conviction by "confessing" to that conviction before the State has the opportunity to confront him or her.
Judge Raker's opinion (announcing the judgment of the Court) began by relying on the long-settled general proposition in Maryland law that "a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted." Brown, 373 Md. at 238, 817 A.2d at 243 (citations omitted). She then discussed Ohler, stating: "Although not binding on this Court, we agree with the majority's reasoning in Ohler." Brown, 373 Md. at 239, 817 A.2d at 244. The opinion bolstered its stance by citing dicta from Johnson v. State, 9 Md.App. 166, 177, 263 A.2d 232, 239 (1970), overruled on others grounds by Bailey v. State, 263 Md. 424, 283 A.2d 360 (1971), where the Court of Special Appeals "observe[d] that if the prior conviction was introduced by the defendant himself rather than by the State, he thereby waives objection." Brown, 373 Md. at 242, 817 A.2d at 245. Finally, Judge Raker explained that, because the defense made no objection during direct examination of the defendant, its position "runs counter to the requirement in Maryland for a contemporaneous objection to the admission of evidence." Id. The plurality held ultimately "that petitioner may not now complain that the evidence that he introduced himself in his direct testimony was not admissible. By introducing the evidence of his prior convictions in his direct testimony, he has waived the issue for appellate review." Brown, 373 Md. at 243, 817 A.2d at 246.
Judge Wilner's dissent in Brown rejected both Judge Raker's views and the Majority's holding in Ohler. Like the dissent
Brown, 373 Md. at 265, 817 A.2d at 259 (quoting Ohler, 529 U.S. at 764, 120 S.Ct. at 1857, 146 L.Ed.2d at 835). The dissent, noting the "strong tide" of state courts' opposition to Ohler, concluded that "[t]he Federal courts, of course, are bound by Ohler, but we are not, and although we necessarily give any decision of the United States Supreme Court great respect, there is good reason not to give this one very much weight." Brown, 373 Md. at 265, 817 A.2d at 259.
Rather than abandoning the contemporaneous objection rule, however, Judge Wilner proposed a narrow exception. He stated:
Brown, 373 Md. at 266, 817 A.2d at 260. We now adopt the reasoning of Justice Souter's dissent in Ohler and Judge Wilner's dissent in Brown. For purposes of stare decisis, we note this is a proposition that garnered the support of four Judges in Brown (the three dissenting Judges and
Applying to the present case the four prongs discussed in the Brown dissent, we observe that the prosecutor stated explicitly that "[t]he State would like to bring that up" (referring to the arson conviction), satisfying the first prong. As to the second prong, defense counsel made a clear objection during argument on the motion in limine, stating "Yes, Your Honor, and certainly we would object" to the trial judge's ruling "I'd let [the prior arson conviction] in." Fulfilling the third prong, the court made an unequivocal and definitive ruling allowing the use of the prior arson conviction for impeachment, but not the prior attempted murder conviction, offering nothing that would lead a reasonable person to believe that the trial judge would reconsider his decision on the motion. Moreover, when defense counsel advised Cure, before he elected to testify, that his prior conviction would be admissible for impeachment purposes, the trial court made no attempt to revisit the issue. Finally, satisfying the fourth prong, Cure testified to the conviction under direct examination in the defense case-in-chief in an obvious attempt to blunt its force.
II. Impeachment with a Prior Conviction for Arson.
When reviewing the admissibility ruling for impeachment purposes regarding a defendant's prior conviction, "we will give great deference to the [trial] court's opinion. Consistent with our prior cases, this court will not disturb that discretion unless it is clearly abused." Jackson v. State, 340 Md. 705, 719, 668 A.2d 8, 15 (1995) (citations and footnote omitted).
Maryland Rule 5-609, governing the impeachment of a witness by evidence of a prior conviction of a crime, provides, in pertinent part:
In State v. Westpoint, 404 Md. 455, 477-78, 947 A.2d 519, 532-33 (2008) (quoting State v. Giddens, 335 Md. 205, 213-14, 642 A.2d 870, 874 (1994)), we explained the analytical framework of appellate consideration of a ruling made under Rule 5-609:
The parties do not dispute that arson originated as a common-law felony. See Robinson v. State, 4 Md.App. 515, 523 n. 3, 243 A.2d 879, 884 n. 3 (1968) ("The common law felonies were murder, manslaughter, robbery, rape, burglary, larceny, arson, sodomy and mayhem."). Because arson was a common-law felony—a subsection of "infamous crimes"—it therefore falls within the "eligible universe" of crimes that are admissible potentially for impeachment, meeting the first requirement under Rule 5-609.
The second touchstone is that the date of the prior conviction must be less than "fifteen years old," and has not been reversed, pardoned, or the subject of an open appeal. In the present case, Cure was convicted of arson in March of 2001, and the parties do not dispute that the March 2001 conviction was the final disposition of that case. Because the trial in the present case was held on 12-13 January 2009—a period of approximately 8 years after the prior conviction became final—this factor is satisfied.
The third requirement is a balancing test, where "the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting
Cure argues generally that the trial court abused its discretion by ruling that it would allow the use of Cure's prior arson conviction for impeachment purposes, explaining that "the impeachment value of an arson conviction is virtually non-existent as it does not reflect adversely on a person's honesty." As the argument goes, because arson is not probative of credibility, the probative value of a prior arson conviction will be outweighed in most cases by the potential to kindle unfair prejudice in the fact-finder. The State, on the other hand, argues generally that "[b]oth the plain language and the historical background of Rule 5-609 contemplates that infamous crimes—no matter the specific type—are necessarily relevant to the witness's veracity."
1. Impeachment Value.
At common law, a convicted felon was barred completely from testifying. See Giddens, 335 Md. at 214, 642 A.2d at 874 ("At common law, one who had been convicted of treason, any felony, a misdemeanor involving dishonesty, or crimes relating to the obstruction of justice, was considered incompetent to testify at any trial." (citations omitted)). Under the common law, arson was defined as "the malicious burning of the dwelling of another." Holbrook v. State, 364 Md. 354, 367, 772 A.2d 1240, 1247 (2001); see also Brown v. State, 285 Md. 469, 473, 403 A.2d 788, 791 (1979); Gibson v. State, 54 Md. 447, 450 (1880). Under the common law, for a defendant to be convicted for arson, "the State had to establish four elements: (1) that the building burned was a dwelling house or outbuilding within the curtilage; (2) that the building burned was occupied by another; (3) that the building was actually burned, as mere scorching would not suffice; and, (4) that the accused's mens rea was willful and malicious." Holbrook, 364 Md. at 367, 772 A.2d at 1247 (footnote
Art. 27 § 6. The codified version of first-degree arson retains nonetheless the elements of the common law offense of arson. See Richmond, 326 Md. at 264, 604 A.2d at 486 ("Thus, Maryland has retained the common law definition of arson in Art. 27, § 6."). The current codification is a slightly more expansive definition of arson to include dwellings that were not occupied at the time of burning, and to account for setting fire to, but failing to completely burn, a structure.
Arson, both at common law and now in the Md.Code, (2002), Criminal Law Article, § 6-102, continues to be recognized as a "crime against habitation."
Our understanding of first-degree arson notwithstanding, the Rules themselves establish that it retains at least some impeachment value. The Court of Special Appeals recognized, and we agree, that:
Cure v. State, 195 Md.App. at 581-82, 7 A.3d at 159.
2. The Period Between the Prior Conviction and Impeachment.
It is well-settled that the more recent a conviction, the more probative value it has for purposes of impeachment. See, e.g., Bane v. State, 73 Md.App. 135, 146, 533 A.2d 309, 314-15 (1987) ("As a general rule, the f[ur]ther in the past the crime, the weaker its relevance to present credibility."); Jackson, 340 Md. at 731, 668 A.2d at 21 (Bell, J., dissenting) ("The rule also recognizes, if only by negative implication, that the more recent the conviction the more probative its impeachment value."). The eight-year period between Cure's arson conviction and the ruling in 2009 as to its use as impeachment evidence at the trial, being roughly half way to Rule 5-609(b)'s fifteen-year outside limit, results in a neutral weight under the second prong. See Fulp v. State, 130 Md.App. 157, 168, 745 A.2d 438, 444 (2000) (holding that "[t]he second factor is relatively neutral" where "[t]he conviction for assault with intent to murder occurred eight years previously, i.e., not exactly ancient history, yet not recent either").
3. The Similarity Between the Prior Conviction and the Crime Charged Now.
The third consideration—the similarity between the past crime and the charged crime—weighs in favor of admissibility in the present case. This Court has explained that "[t]his risk of prejudice is particularly great where the crime for which the defendant is on trial is identical or similar to the crime of which he has previously been convicted." Jackson, 340 Md. at 716, 668 A.2d at 13. As we stated in Ricketts v. State, 291 Md. 701, 703, 436 A.2d 906, 908 (1981):
Cure admits, and we agree that "[a]rson and drug-related offenses are admittedly not similar crimes, and the prior arson conviction would obviously have been more prejudicial if Mr. Cure had been on trial for arson or for malicious burning." Because the prior arson conviction and the drug charge are dissimilar wholly, the prejudicial impact is reduced. The third consideration therefore weighs in favor of allowing the State to use the arson conviction for impeachment purposes.
4 & 5. The Importance of the Defendant's Testimony and the Centrality of the Defendant's Credibility.
The fourth and fifth considerations, weigh clearly here in favor of admissibility. In Jackson, 340 at 721, 668 A.2d at 16, we stated:
(Internal citations omitted.) Cure's defense of misidentification, as well as the conflicting reports about his attire, make his credibility central to the case. One of the critical considerations the jury had to contemplate was the question of whom to believe—Cure or the identifying detective. Cure's testimony, which amounted to the bulk of his defense, made "credibility . . . the central issue" in the case, and, therefore, factors four and five weigh heavily in favor of admissibility.
At bottom, the question is whether the trial judge abused his discretion when he applied the balancing test to determine whether the probative value of the use of Cure's prior arson conviction for impeachment evidence outweighed the potential for prejudice in using the prior conviction. As this Court has stated:
Prout v. State, 311 Md. 348, 363-64, 535 A.2d 445, 452 (1988). We cannot say, as a matter of law, that the trial court abused its discretion in allowing use of Cure's prior arson conviction. The first prong was in favor of admissibility at least marginally, the second factor was neutral, and the third, fourth, and fifth weighed in favor of admissibility. Therefore, we afford the trial court due deference and hold that it
Richmond, 326 Md. at 264, 604 A.2d at 486-87 (quoting 4 W. BLACKSTONE, COMMENTARIES 220). First-degree arson is not simply a "crime of violence perpetrated against property" as Cure insists, but rather, "in keeping with its common law roots, first degree arson is a crime against habitation, not persons or property." Holbrook v. State, 364 Md. 354, 372, 772 A.2d 1240, 1250 (2001).