CARL FRANKLIN BURNSIDE v. STATE OF MARYLAND
Court of Appeals of Maryland, Greene, July 11, 2018,
Impeachment – Defendant Testimony – If requested, a trial court should decide whether impeachment evidence can be used against a defendant before he decides whether or not to testify
(Concur and Dissent – Getty with Watts- This requires too much speculation or proffer of defense testimony)
Facts:
In 2016, Burnside was charged and tried for Possession with Intent to Distribute CDS (PWID).
Burnside had a prior 2012 conviction for PWID.
Before deciding whether or not to testify, Burnside requested that the trial judge decide if his prior PWID conviction could be used to impeach him. When the judge refused to do so, Burnside declined to take the stand in his defense.
Burnside was convicted and appealed, arguing that the trial court’s failure to decide effectively kept him from testifying.
Held: The Court of Appeals held that, because the trial judge knew all of the facts necessary to make the decision, he should have done so and allowed the defendant to make an intelligent choice about whether or not to testify. Case sent back for a new trial.
Impeachment by Prior Conviction – The credibility of a witness may be attacked (the witness may be “impeached”) based on prior convictions “relevant to the witness’s credibility.”
Impeachment – One of the dangers in impeachment based on a criminal conviction is that it may cause a jury to “convict a defendant based on the defendant’s criminal history or simply ‘because it thinks the defendant is a bad person.'”
Impeachment by Prior Conviction – A witness can only be impeached by evidence of prior conviction if:
– The conviction was for an “infamous crime” or other crime relevant to credibility
– The conviction was valid and within the last 15 years (except for a perjury conviction, which has no time limit)
– The impeachment value of the conviction is not outweighed by the danger of unfair prejudice
Impeachment- Prejudice – In determining the danger of unfair prejudice, courts will consider factors such as:
(1) the impeachment value of the prior criminal conviction
(2) the point in time of the conviction and the defendant’s subsequent history
(3) the similarity between the past crime and the charged crime
(4) the importance of the defendant’s right to testify
(5) the centrality of the defendant’s credibility to the case
Defendant Testimony – A defendant has the “fundamental constitutional right” to decide whether to testify or not testify in a criminal case against him.
Impeachment – “It is not realistic or necessary for a defendant to have to wait until he is on the stand to find out whether he will be impeached with prior crime evidence.” On request, the defendant should be allowed to know whether past convictions may be used to impeach him. Based on this, he can decide whether or not to testify.
Impeachment – Delay of Decision – A trial court may delay deciding in cases where the defendant’s testimony will decide an issue related to the balancing test. However, this “should be a rare occurrence.”
Impeachment – Delay of Decision – In the “rare instance when a judge defers his ruling, the trial judge should first assess all reasonable efforts to accommodate a defendant by making an advance ruling on the admissibility of a defendant’s criminal record to enable the defendant to make an informed decision whether to testify or not. This assessment, whether it ultimately leads to an advance ruling or a deferred ruling, should appear on the record.”
From the Case: “It is our view that the trial court had enough information to reasonably conduct a balancing test prior to Mr. Burnside’s election whether to testify. It had adequate means of assessing how Mr. Burnside would likely testify, given the clear theory of the defense Additionally, the trial court was aware that Mr. Burnside felt prejudiced by the delay in the ruling.”