Brown v. State , 373 Md. 234 ( 2003 )

RAKER, Judge.

Calvin Brown was convicted by a jury of second degree assault in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 12A (current version at Maryland Code (2002) § 3-203 of the Criminal Law Article). Although he placed his prior conviction for possession of a controlled dangerous substance with intent to distribute before the jury in his direct examination, he contends on appeal that the trial court erred when it ruled that the evidence of his conviction was admissible for impeachment purposes. The question we must decide in this case is whether a defendant waives the right to challenge on appeal the propriety of the trial court ruling when the defendant introduces the prior conviction in his direct testimony.

Petitioner and a co-defendant were charged with assaulting Damon Mitchell, a correctional officer, as Mitchell was walking toward his home. At the conclusion of the State’s case in chief, defense counsel argued to the court that although petitioner’s 1993 criminal conviction fell within the universe of crimes admissible for impeachment purposes under Maryland Rule 5-609,¹ the probative value of the evidence was outweighed by the danger of unfair prejudice. The court ruled that the conviction was more probative than prejudicial and that the State would be permitted to impeach petitioner with the conviction.

Petitioner elected to testify on his own behalf. During his direct examination, petitioner admitted that he had been convicted of the criminal offense of possession with intent to distribute a controlled dangerous substance. On cross-examination, in response to the State’s question, petitioner confirmed the conviction. The jury convicted petitioner and the trial court sentenced him to a term of imprisonment of eight years.

Brown noted a timely appeal to the Court of Special Appeals. In an unreported opinion, that court affirmed, holding, inter alia, that when a party introduces evidence of a criminal conviction during his or her direct testimony, any objection to the admissibility is waived. Chief Judge Murphy, in a concurring opinion, would have held that the issue was preserved for appeal but that the trial judge did hot abuse his discretion in finding that the probative value outweighed the prejudicial effect. We granted Brown’s petition for writ of certiorari. Brown v. State, 369 Md. 570, 801 A.2d 1031 (2002). We shall affirm the Court of Special Appeals.

Petitioner argues before this Court that the trial court erred in admitting evidence of his prior conviction for impeachment purposes. Petitioner asserts that he is entitled to introduce evidence of his prior conviction in order to minimize the prejudicial impact before the jury, and that application of the waiver rule is fundamentally unfair. On the merits, he contends that the trial court erred in admitting the conviction for impeachment purposes because the prejudicial effect substantially outweighed the probative value. Petitioner acknowledges that waiver ordinarily is a bar when a party offers evidence and on appeal objects to its introduction. Petitioner argues for an exception to the waiver rule to allow a defendant to “draw the sting” by preemptively offering evidence of prior convictions where the trial court has already “clearly and unequivocally” ruled on their admissibility.²

The act of preemptively disclosing evidence of a defendant’s prior convictions on direct examination has been variously characterized as “drawing the sting,” “lancing the boil,” and “inoculating the jury.” L. Timothy Perrin, Pricking Boils, Preserving Error: On the Horns of a Dilemma After Ohler v. United States, 34 U.C. Davis L.Rev. 615, 616 (2001). Regardless of terminology, the process of eliciting such testimony is a trial strategy designed to achieve one or more tactical advantages. The most common reasons for such disclosure include:

“(1) the trier of fact is more likely to trust and respect an advocate or a witness who ‘volunteers’ harmful information;

(2) the disclosure avoids the risk that the trier of fact will believe that the party or witness concealed the damaging material; and (3) the advocate retains a measure of control over the disclosure of the perceived weaknesses and can couch the disclosure as sympathetically as possible.”

Id. at 616-17. The prevailing attitude amongst both practitioners and scholars of trial advocacy is that preemptive disclosure is a common and effective tactic for dealing with the threat of impeachment by prior conviction.³

It has been a long held principle of common law and the law of this State, however, that “a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 1853, 146 L.Ed.2d 826 (2000), citing 1 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 103.14, 103-30 (2d ed.2000); Mills v. State, 310 Md. 33, 69, 527 A.2d 3, 20 (1987), judgment vacated on other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (holding that defendant could not complain of the inadmissibility of evidence he had introduced on direct examination); Hillard v. State, 286 Md. 145,155-56, 406 A.2d 415, 421 (1979) (reaffirming “the longstanding rule in this State ... that the admission of improper evidence cannot be used as grounds for reversal where the defendant gives testimony on direct examination that establishes the same facts as those to which he objects”); Peisner v. State, 236 Md. 137, 146, 202 A.2d 585, 590 (1964) (noting that “[wjhatever advantages the best evidence rule might have afforded the [defendant] were waived and discarded by the [defendant] himself’); Bean v. State, 234 Md; 432, 444, 199 A.2d 773, 779 (1964) (holding that “[h]aving brought up the subject, the [defendant] is hardly in a position to claim that the testimony ... was not admissible”); Jensen v. State, 127 Md.App. 103, 126-27, 732 A.2d 319, 331-32 (1999) cert, denied, 356 Md. 178, 738 A.2d 855 (1999) (refusing to consider effect of alleged prejudicial “bad acts” evidence “because [the defendant] introduced this evidence, she cannot now complain about its admission”); Johnson v. State, 9 Md.App. 166, 177, 263 A.2d 232, 239 (1970) aff'd after remand, 9 Md.App. 436, 265 A.2d 281 (1970) (observing that “if the prior conviction was introduced by the defendant himself rather than the State, he thereby waives objection”). Maryland courts consistently have applied the waiver rule in civil cases as well. See e.g., Reed v. Baltimore Life Ins. Co., 127 Md.App. 536, 559, 733 A.2d 1106, 1118 (1999) (holding that appellant could not complain on appeal about the source of evidence when he provided the information to the court himself). This rule, recognized repeatedly by this Court, is stated in 1 J. Strong, McCormick on Evidence, § 55 (5th ed.1999):

“If a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection.... However, when his objection is made and overruled, he is entitled to treat the ruling as the ‘law of the trial’ and to explain or rebut, if he can, the evidence admitted over his protest.”

The issue petitioner presents for our review in the instant case was considered by the Supreme Court in Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). The Court, in a five-to-four decision based on non-constitutional grounds, held that a defendant waives any error in the trial court’s preliminary ruling permitting impeachment by a prior conviction when the defendant preemptively introduces the evidence in her own testimony. Id. at 760, 120 S.Ct. at 1855, 146 L.Ed.2d 826. Although not binding on this Court, we agree with the majority’s reasoning in Ohler. In a motion in limine, the Government sought a preliminary ruling by the trial court to determine whether the defendant’s prior conviction was admissible as impeachment evidence. The trial court determined that the conviction was admissible for impeachment purposes. On direct examination, Ohler admitted her prior conviction.

On appeal, Ohler argued that it would be unfair to apply the waiver rule. She argued that although one cannot complain on appeal of evidence introduced by that person, the Court should create an exception where the conviction would be presented by the prosecution in any event. The Supreme Court declined to create such an exception, holding 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.” Id. at 760, 120 S.Ct. at 1855, 146 L.Ed.2d 826.

The Court noted that whatever merits Ohler’s contentions may have, “they tend to obscure the fact that both the Government and the defendant in a criminal trial must make choices as the trial progresses.” Id. at 757, 120 S.Ct. at 1854, 146 L.Ed.2d 826. The defendant must choose whether to take the stand and testify, and if she decides to testify, she must choose whether to remove the sting or take her chances. Similarly, the Government must choose whether or not to use the defendant’s prior conviction against her. As a result, “any possible harm flowing from a [trial court’s] in limine ruling permitting impeachment by a prior conviction is wholly speculative.” Id. at 759,120 S.Ct. at 1854,146 L.Ed.2d 826 (quoting Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (1984) (holding defendant who chose not to testify at trial waived the right to appeal an in limine ruling permitting the Government to impeach with evidence of prior conviction)). In addition the Court observed that Ohler’s position would deprive a trial judge of the opportunity to change its mind during the course of the trial after hearing all of the defendant’s testimony. Id. at 758 n. 3, 120 S.Ct. at 1854 n. 3, 146 L.Ed.2d 826.

The Court of Special Appeals in the instant case agreed with the reasoning set out in Ohler. Judge Getty, writing for the panel, noted:

“We fail to see how the decision in Ohler was unfair to an accused who unquestionably seeks to present to the jury an image of one who is credible and willing to admit his earlier transgressions and then abandons that approach on appeal and claims, “I wuz robbed!” Where the question of prior conviction arises, and the court rules that a prior conviction is admissible, both sides have decisions to make. The defendant can admit the offense and hope the admission will favorably impress the jury, or he can conclude that the State will not offer the evidence and, if they do so, he can object and attack the court’s ruling on appeal. The State must also resolve whether to offer the evidence and run the risk of reversal or to rely instead on the strength of the testimony produced at trial The court ought not allow the accused to gain whatever advantage preemption bestows and then allow him redress for self-inflicted wounds.”

The precise issue in the instant case was addressed, in dicta, by Judge Orth, in Johnson v. State, 9 Md.App. 166, 263 A.2d 232 (1970). Rejecting the defendant’s position, the court said:

“If timely objection is not made below the question of the admissibility of a prior conviction is not preserved for appeal.... And we observe that if the prior conviction was introduced by the defendant himself rather than by the State, he thereby waives objection. If he so offers the conviction, probably as a matter of trial strategy to soften the anticipated blow in the eyes of the trier of fact, he cannot be heard to complain that his own act of offering such evidence violated his constitutional rights.”

Id. at 177, 263 A.2d at 239.

Our reasoning in Jordan v. State, 323 Md. 151, 591 A.2d 875 (1991) is analogous and therefore instructive. In Jordan, the defendant’s confession, although voluntary, was inadmissible in the State’s case in chief because the defendant had not knowingly waived his right to counsel. The trial court ruled the confession was admissible if the defendant testified, for impeachment purposes only. The defendant did not testify at trial. On appeal, Jordan challenged the ruling as to the admissibility of the statement. We held that the trial court’s ruling as to the admissibility of the statement for impeachment purposes was not preserved for appeal where, for tactical reasons, the defendant chose not to testify, thereby precluding the State from utilizing the evidence. Id. at 156, 591 A.2d at 877. We stated there could be no review of a ruling allowing for the admission of evidence unless the evidence were actually introduced at trial. Id. at 158-59, 591 A.2d at 878-79. Any harm from an erroneous ruling by the trial court was speculative, because the State might have chosen not to use the “arguably inadmissible” evidence to impeach. Id. at 158-59, 591 A.2d at 878 (quoting Luce, 469 U.S. at 42, 105 S.Ct. at 463, 83 L.Ed.2d at 448).

Petitioner’s position also runs counter to the requirement in Maryland for a contemporaneous objection to the admission of evidence. See Maryland Rule 4-323(a). Although petitioner initially objected to the use of the conviction prior to testifying, there obviously was no objection when he introduced the conviction in his direct examination. Further, when the State asked him about the conviction, there was no objection.

In a split decision, this Court recently reaffirmed its commitment to the requirement of a contemporaneous objection to the admissibility of evidence in order to preserve an issue for appellate review. See Reed v. State, 353 Md. 628, 728 A.2d 195 (1999). We reiterated the general rule in Maryland that “where a party makes a motion in limine to exclude irrelevant or otherwise inadmissible evidence, and that evidence is subsequently admitted, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve [its] objection for appellate review.” Id. at 637, 728 A.2d at 200 (quoting Prout v. State, 311 Md. 348, 356, 535 A.2d 445, 449 (1988)). We held that where a motion in limine has the effect of admitting evidence at trial, “failure to object results in the non-preservation of the issue for appellate review.” Id. at 637, 728 A.2d at 200. Discussing the contemporaneous rule, the Court said:

“the [contemporaneous objection] rule generally promotes consistency and judicial efficiency.... Much can happen in a trial prior to the offering of disputed evidence that can affect its admissibility. When the contemporaneous objection rule applies, the subsequent course of the trial as to admissibility issues generally will be controlled by the rulings of the trial judge, rulings generated by the events as they have unfolded during the trial.”

Id. at 641-43, 728 A.2d at 202-03. The same rule was expressed in Klauenberg v. State, 355 Md. 528, 735 A.2d 1061 (1999). Judge Cathell, writing for the Court, said:

“[P]ursuant to Maryland Rule 4-323(a), ‘an objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.’ In addition, we recently have reaffirmed that when a motion in limine to exclude evidence is denied, the issue of the admissibility of the evidence that was the subject of the motion is not preserved for appellate review unless a contemporaneous objection is made at the time the evidence is later introduced at trial.”

Id. at 539-40, 735 A.2d at 1067 (citations omitted). See also, Prout v. State, 311 Md. 348, 356-57, 535 A.2d 445, 449 (1988); Hickman v. State, 76 Md.App. 111, 116-17, 543 A.2d 870, 873 (1988) (Bell, J.).

We hold that petitioner may not now complain that the evidence that he introduced himself in his direet testimony was not admissible. By introducing the evidence of his prior convictions in his direct testimony, he has waived the issue for appellate review. There was no objection to the testimony; it is speculative as to whether the State would have introduced the evidence; and the trial court was deprived of the opportunity to hear petitioner’s entire testimony in context to reevaluate its decision as to whether the prejudice of the conviction substantially outweighed the probative value.

Petitioner argues that he is entitled to “play down” the significance of adverse evidence, and that the implementation of the waiver rule will give him a “Hobson’s choice of either mitigating the damage to his witness by introducing impeachment evidence on direct examination, or preserving for review on appeal the error of a ruling already made.”⁴ We agree that precluding an appeal following preemptive disclosure presents a defendant with a dilemma. Nonetheless, to overcome the waiver rule, a defendant must be faced with more than a strategic decision.

In contrast to petitioner, the defendant in Beverly v. State, 349 Md. 106, 707 A.2d 91 (1998) was faced with a Hobson’s choice. The defendant had worked out a plea agreement with the State but the trial judge mistakenly believed he could not implement the terms of the agreement. The defendant was permitted to withdraw the guilty plea, and following a trial, he was convicted. On appeal, the State argued that the defendant’s withdrawal of the plea constituted a waiver of the issue. Finding waiver not applicable, this Court stated:

“We do not believe that the defendant, having been told that the court could not legally follow the plea agreement, should be required to plead guilty in order to challenge the trial judge’s legal conclusion, knowing that the court would not follow the plea agreement.”

Id. at 119, 707 A.2d at 97. In Beverly, it was not the case of a defendant making a tactical decision as to his trial strategy; rather, a defendant is not required to relinquish a constitutional right to a trial solely to contest an erroneous legal ruling.

In United States v. Williams, 939 F.2d 721 (9th Cir.1991), a case pre-dating Ohler, the defendant, faced with an adverse ruling on the admissibility of a conviction for impeachment purposes, chose to present evidence of the conviction in his direct testimony. The court held that the defendant’s claim that the trial court erred in allowing impeachment by prior conviction was waived by defendant’s preemptive testimony. Id. at 723. “While the choice between preempting the prosecution and preserving the ... objection for appeal may be perilous, it is no more so than many other decisions defense attorneys must make at trial.” Id. at 725. The court was influenced by the Supreme Court’s discussion in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), and the holding that in order to preserve for review the claim of improper impeachment with a prior conviction, a defendant must first testify. Id. at 724 (citing Luce, 469 U.S. at 43, 105 S.Ct. at 464, 83 L.Ed.2d 443). The court relied in part on the following quote from Luce:

“A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s' testimony, which is unknowable when, as here, the defendant does not testify.”

Luce, 469 U.S. at 41, 105 S.Ct. at 463, 83 L.Ed.2d 443. The same reasoning holds true when a party presents evidence of a criminal conviction in direct testimony. The trial court is deprived of the opportunity to change its ruling after hearing the testimony in context. As the Supreme Court stated, “there is nothing ‘unfair’ ... about putting petitioner to [his] choice in accordance with the normal rules of trial.” Ohler, 529 U.S. at 759,120 S.Ct. at 1855,146 L.Ed.2d 826.

Petitioner urges this Court to follow the lead of several of our sister states that have rejected the Supreme Court approach adopted in Ohler. We decline to accept his invitation. The holding in those cases was consistent with the general approach in those states that a party has a right to introduce mitigating evidence and is not precluded from appealing the admissibility of that evidence even though he introduced the evidence himself. See e.g., State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) (holding that defendant may introduce preemptively evidence of criminal convictions without waiver of right to assert error on appeal; under Iowa law, however, “the rule of waiver is contrary to established precedent”); State v. Thang, 145 Wash.2d 630, 41 P.3d 1159, 1168 (2002) (holding defendant may introduce mitigating evidence preemptively; “[i]n Washington, case law indicates a tendency to protect the defendant’s right to introduce mitigating testimony”); People v. Carpenter, 21 Cal.4th 1016, 90 Cal.Rptr.2d 607, 988 P.2d 531, 556 (1999) (holding that defendant could introduce the convictions first rather than wait until presented by prosecution and still appeal; under California law, however, pre-trial objection need not be renewed at trial to preserve error); State v. Mueller, 319 S.C. 266, 460 S.E.2d 409, 410-11 (App. 1995) (holding that defendant could bring out conviction on direct examination and then challenge validity of ruling on appeal; under South Carolina law, however, defendant need not renew earlier objection to admission of testimony to preserve issue for appeal). As we have discussed supra, Maryland jurisprudence is otherwise. The Vermont Supreme Court simply declined to follow the reasoning in Ohler, concluding that it was an extension of the Court’s reasoning in Luce. See State v. Reiser, 807 A.2d 378, 388 (Vt.2002). In our view, the ruling does not extend Luce, but rather, is a consistent application of Luce. Furthermore, the ruling in Ohler and our holding today are consistent with our jurisprudence on appellate procedure, specifically, the traditional rules on waiver and the requirements of preservation of error.

Because petitioner waived his right to appeal the trial court’s ruling, we need not decide whether the trial court erred when it determined that petitioner’s prior conviction for possession of a controlled dangerous substance with intent to distribute was admissible for impeachment purposes.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

Announcing the judgment of the Court HARRELL, J. concurs in the judgment.

Concurring opinion by

1 . Maryland Rule 5-609(a) reads as follows:

"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party."

2 . Petitioner's request for us to create an exception to the general rule on waiver takes us down a slippery slope that we are unwilling to follow. For example, why should there not be an exception for the tactical decision of a party to introduce preemptively evidence of other crimes that may be admissible to show identity under Md. Rule 5-404(b) or an exception where a party enters into a stipulation as to admissibility of evidence to avoid the prejudicial impact of the details of that evidence?

3 . But see Robert H. Klonoff & Paul L. Colby, Sponsorship Strategy (1990) (expressing a minority view that the disclosure of convictions by defense counsel is likely to exaggerate the importance of the damaging material in the eyes of the jury, yet fail to win enhanced credibility for the defense).

4 . We explained a Hobson’s choice in Hook v. State, 315 Md. 25, 553 A.2d 233 (1989) as not having a choice a1 all. We defined the term as:

"After Thomas Hobson, 1631 English liveryman, from his practice of requiring every customer to take the horse which stood nearest the door. Thus, the forced acceptance of something whether one likes it or not; the necessity of accepting something objectionable through the fact that one would otherwise get nothing at all; something that one must accept through want of any real alternative.”

Id. at 38 n. 18, 553 A.2d at 240 (quoting Webster’s Third New International Dictionary of the English Language Unabridged (1981)).