Opinion
No. 2753, September Term, 2000
Filed: March 28, 2002
Murphy, C.J., Rodowsky, Lawrence F. (retired, specially assigned) Getty, James S. (retired, specially assigned) JJ.
Murphy, C.J., concurs
REPORTED
Babatunde Solemekum a/k/a Akanbi Babatunde (Solemekum) appeals his criminal conviction. At trial he correctly, but unsuccessfully, asserted on motion in limine that he was not impeachable by a prior conviction. He then testified to the prior conviction, as a matter of trial tactics, thereby raising issues of preservation for appellate review. The State's cross-examination raises an issue of admissibility that requires an analysis proceeding in the opposite direction from the conventional model. We explain.
The victim, Kaboya Brown (Brown), was shot and wounded by a handgun on May 3, 2000, in the club basement of the residence at 4236 Seidel Avenue in the City of Baltimore. Only two persons were present in the basement at the time of the shooting, Solemekum and Brown. Following a trial in January 2001 Solemekum was convicted of first-degree assault, for which he was sentenced to twenty years' imprisonment, and convicted of the use of a handgun in the commission of a crime of violence, for which he was sentenced to ten years, to be served consecutively to the twenty year term.
Some general background facts are not disputed. The club basement scene of the crime is the living area of Charles West (West) in a residential building also occupied by his mother and younger brother. Solemekum, age nineteen at the time of the crime, employed West, age twenty-four at the time of trial, on a daily basis in the former's drug business. Solemekum testified that on the morning of the shooting he and West were in the basement, where they packaged crack cocaine in glassine bags. The two then went to Patapsco Avenue in the Brooklyn area of Baltimore City where they sold, by Solemekum's calculation, approximately seventy $10.00 ("dime") bags of cocaine. Upon their return to the basement at about 4:00 p.m. there were present a friend of West's since childhood, Kenneth Saunders (Saunders), age twenty at the time of trial, and Brown, a lifelong friend of Saunders and age twenty at the time of trial.
Following the shooting the police found glassine bags at the crime scene.
Brown testified that some days before the shooting a person whom Brown later learned to be Solemekum had telephoned Brown's home and asked for Saunders. When the caller refused to identify himself Brown hung up. When the caller replaced the call, Brown again hung up.
In the late afternoon of May 3, 2001, shortly after West and Solemekum had returned to the basement, West went to a cupboard, took out an automatic handgun, and handed it to Solemekum. He held the weapon in one hand while he spoke on the telephone, returning telephone calls that had been placed to his pager, while the other three young men watched television. At some point Solemekum, referring to Brown, said that Brown was the person who had been disrespectful to Solemekum on the telephone and that he should pistol whip Brown. A jury could infer that this motivated Saunders to go out on the street and around the corner where he "chilled" for about fifteen minutes. West concurrently realized that he was in need of cigarettes and departed for the local 7-Eleven.
Brown testified that, after he had gone to the bathroom located in the rear of the basement, he returned to the general living area to find that West and Saunders were no longer there. Brown sat down and watched TV. Solemekum, with the gun in his hand, approached Brown and swung the pistol at him, striking Brown in the side of the head. Brown described what occurred next.
"I got up. We started to tumble. We fell on the bed. I had his hand. I had one hand here, and I had one hand holding the hand that had the gun. And then so as it's a twin sized bed, I fell off the bed.
"Once I fell off the bed, he had time to get up, cock the gun back, and shoot me while I was trying to get up."
Brown was hospitalized for fourteen days for treatment of a gunshot wound to the left chest and resulting complications.
Solemekum denied that he knew who Brown was or that Brown was supposed to have disrespected Solemekum. He said that Brown was introduced to Solemekum by Saunders as a customer. Solemekum testified that West had placed the gun that had been taken from the cabinet on a counter in front of the television and that Brown had taken the gun back to the bathroom. When Brown returned to the living area he pointed the gun at Solemekum. Solemekum testified:
"He [Brown] say, I know, I know what you got. He was like, you know what time it is, like that. I was like, what you mean. He was like kick that shit out, like that, that's all he said."
In final argument the defense contended that Brown was attempting to rob Solemekum. The foundation for that argument had been laid by the above-quoted testimony and by Solemekum's earlier testimony that he was carrying $700 in cash from drug sales.
A struggle ensued during which the gun discharged.
Solemekum was arrested on May 4, 2000. He gave the police a written statement in which he said that he was at his girlfriend's house at the time of the shooting.
At the conclusion of the State's case the court and counsel, for the first time on the record, considered whether Solemekum was impeachable by a 1999 conviction for a crime which the court referred to as assault with intent to murder. It is clear that defense counsel previously had directed the court's attention to Fulp v. State, 130 Md. App. 157, 745 A.2d 438 (2000). There this Court said that assault with intent to murder "does not tell us anything about the truth telling propensity of the accused. There is simply no relationship between the disposition to commit such a crime and the disposition to be untruthful." Id. at 167, 745 A.2d at 443. After the trial court had stated its analysis of Fulp, the State suggested an alternative.
The record does not reflect whether the issue was raised by the State's request for a ruling permitting use of the conviction or by Solemekum's request for a ruling excluding use of the conviction.
"I have always suggested that if you don't want the crime to be named, well, let's say he's been convicted of a felony, and let them know that he has a conviction in his past recently that would bring some question of his credibility to the jury. Just not say what the crime is. At least let them know that he has something in his background that makes him questionable; that he has a reason to lie in this case, not a person they would trust on the street if they knew him, and knew of this conviction."
The court indicated agreement with the State's suggestion, pointing out that it avoided the problem of impeaching with the same type of crime, and it avoided a consideration on the record of the balancing factors outlined in Jackson v. State, 340 Md. 705, 668 A.2d 8 (1995). In response the State said that its "goal is to ask him specifically of what crimes he was convicted of, but I mention the felony aspect."
After further colloquy the court said:
"My ruling is, based on everything up to this point, is that if the defendant testifies, the State will be permitted to ask is it not true that in 1999, if that's the year, you were convicted of a felony. He will not be permitted to ask wasn't that felony an attempted murder. He will not be able to ask the question as to the nature of the crime."
At the hearing on Solemekum's motion for a new trial, defense counsel said the prior conviction was for "[c]onspiracy to attempt [sic] murder in the first degree." Inasmuch as the court's ruling permitted use of a "sanitized" felony for impeachment, any difference in impeachment admissibility, based on the differences in the shorthand descriptions of the prior conviction, is immaterial.
In adopting the State's suggestion, the court ran afoul of the holding in Bells v. State, 134 Md. App. 299, 759 A.2d 1149 (2000), which adopted the rule "in the minority of jurisdictions" and held "that sanitized prior convictions are improper for impeachment." Id. at 310, 759 A.2d at 1155. Defense counsel consulted with his client and, disclaiming an intent to waive, announced that Solemekum would testify.
The rationale of Bells is set forth below:
"A sanitized prior conviction is not merely `ill-defined,' but totally undefined. A jury would be completely unable to assess what, if any, impact a `prior felony conviction' has upon a witness's veracity. The fact finder is able only to speculate about the prior conviction, therefore jeopardizing the purpose of Rule 5-609, which seeks to `prevent a jury from convicting a defendant based on his past criminal record, or because the jury thinks the defendant is a bad person.' Jackson, 340 Md. at 715, 668 A.2d [at 13]. Admitting sanitized prior felony convictions into evidence would render meaningless Maryland's long line of cases emphasizing the importance of admitting only those prior convictions that assist the fact finder in measuring a witness's credibility and veracity. Such a rule would contravene the policy underlying the Ricketts [ v. State, 291 Md. 701, 436 A.2d 906 (1981)] decision by discouraging defendants from taking the stand, as the Court of Appeals stated in Ricketts, 291 Md. at 703, 436 A.2d [at 907-08]."
Bells, 134 Md. App. at 309, 759 A.2d at 1154-55.
After giving his version of the critical events, Solemekum, on direct examination, further testified as follows:
"Q I'm going to show you a statement dated May 4, 2000. Is that your statement?
"A Yes, it is.
"Q That's the statement you gave?
"A Yes.
"[Defense Counsel]: Your Honor, I'm going to offer this as Defendant's Exhibit Number 1, rights form and statement by Mr. Solemekum.
"(Defendant's Exhibit Number 1 rights form, and statement marked and received in evidence).
"BY (DEFENSE COUNSEL):
"Q Mr. Solemekum —
"A Yes.
"Q — I want you to tell the ladies and gentlemen of the jury what you told the police.
"A I told the police that I wasn't even there. I told them I ain't had nothing to do with it.
"Q You told the police you weren't there and you had nothing to do with it?
"A Yeah.
"Q It was a lie, wasn't it?
"A Yes.
"Q Why did you lie to the police?
"A Because I was on probation for —
"Q You were on probation because you had a prior conviction for a felony. Isn't that right?
"A Yes.
"Q And you were scared?
"A Yes.
"Q What were you scared of?
. . . .
"A Scared they was just going to say I did it anyway, and say it was on purpose or something like that."
On cross-examination Solemekum testified:
"[PROSECUTOR]: Mr. Solemekum, let me first back up to, you say you have been convicted of a felony before. Is that correct?
"A. Yes.
"Q. As a matter of fact, you were found guilty of that felony on December 14th of 1999. Isn't that correct?
"A. I copped out so, yes.
"Q. Excuse me?
"A. Yeah. I copped out so —
"Q. Yeah, so that's the right date?
"A. I pled guilty, yes.
"Q. And you stated already that you were on probation right now for that felony?
"A. Yes.
"Q. And it is also true, sir, that you're backing up nine years.
"A. Yes — eight and five months."
On this appeal Solemekum asserts error in the ruling permitting impeachment by sanitized conviction, and the State does not ask this Court to reconsider its holdings in either Fulp or Bells. Rather, the State argues that Solemekum "waived his right to appellate review when defense counsel, on direct examination, brought out that he had a prior `felony' conviction." Brief of Appellee at 5. The State relies exclusively on Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), a five-four decision, holding, on non-constitutional grounds and under circumstances analogous to those in the case before us, that the accused waived appellate review. Solemekum urges the rationale of the dissenting opinion in Ohler and, at oral argument, also submits that the State's cross-examination of Solemekum makes the trial court's ruling reversible error.
Three issues emerge. They are:
1. Has the trial court error been preserved for appellate review?
2. If initially preserved, did Solemekum waive the error by presenting inadmissible evidence?
3. Even if waived, did the State's presentation of inadmissible matter on cross-examination make the erroneous ruling reversible error?
I
The parties have treated the trial court's jury-out ruling as a ruling on a motion in limine. As a result inadmissible evidence was admitted to which Solemekum objected at the time the trial court ruled on the motion. When the evidence was first introduced before the jury, there obviously was no objection made by Solemekum because it was testimony which he, himself, was giving. When the State cross-examined Solemekum, the defense did not object to the State's questions concerning the prior conviction, on which the court had already ruled. In Reed v. State, 353 Md. 628, 728 A.2d 195 (1999), the Court of Appeals, after extensively reviewing the Maryland appellate decisions on preservation by motion in limine, reiterated that "as to rulings on motions in limine that result in the admission of evidence [the rule] is that the contemporaneous objection rule ordinarily applies." Id. at 638, 728 A.2d at 200. When the evidence is offered at trial "a contemporaneous objection generally must be made pursuant to Maryland Rule 4-323(a) in order for that issue of admissibility to be preserved for the purpose of appeal." Id., 728 A.2d at 201. Thus, the threshold issue is preservation for appellate review.
Maryland Rule 4-323, dealing with the method of making objections in criminal causes, provides in subsection (a) that "[a]n 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." With respect to other rulings or orders, subsection (c) of Rule 4-323 provides that, for purposes of review, "it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court."
Reed v. State, supra, was a prosecution on drug charges. Reed moved to exclude from evidence portions of the statement which he had given to the police in which he had admitted possession and distribution, on a minor scale, of controlled dangerous substances prior to the offenses charged against him. The motion was made pretrial, ruled on favorably by one judge, and later changed by another judge to permit use of the statement. Reed, 353 Md. at 630-31, 728 A.2d at 197. At trial a detective testified, without any objection by Reed, to the contents of the statement, but objection was made when the written statement was introduced as an exhibit. Id. at 631, 728 A.2d at 197. On appeal Reed argued that the contemporaneous objection rule should be relaxed where the ruling on a motion in limine is "definitive." Id. at 640, 728 A.2d at 202. Rejecting the argument, the Court of Appeals pointed out that it ignored Rule 4-323(a) and (c) and the prior Maryland cases. In a rather clear indication that it was a pretrial motion in limine which the Court was considering the Court reasoned that the contemporaneous objection rule promoted "consistency and judicial efficiency," because both the identity of the judge and the relevance of evidence can change between a pretrial ruling and the point at which the proof is offered into evidence at trial. Id. at 641, 728 A.2d at 202.
The argument was apparently inspired by the then proposed amendment to Federal Rule of Evidence 103(a). See Report dated May 1, 1999, of the Advisory Committee on Evidence Rules to the Standing Committee on Rules of Practice and Procedure, reprinted in 192 F.R.D. 340, 402-10 (2000). That proposal, which was adopted in 2000, added a sentence to Fed.R.Evid. 103(a) reading: "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." (Emphasis added).
Reed is but the most recent decision of the Court of Appeals in a line of cases beginning with Prout v. State, 311 Md. 348, 535 A.2d 445 (1988). In Prout, counsel for the accused, by motion in limine made orally before opening statements to the jury, advised the court that he intended to cross-examine the State's sole witness (the complainant), regarding her prior convictions. The court excluded the crimes. Distinguishing between a ruling to admit, governed by the predecessor to current Rule 4-323(a), and a ruling to exclude, governed by the predecessor to present Rule 4-323(c), the Court stated that a contemporaneous objection was required only with respect to the former but not as to the latter. Id. at 356-57, 535 A.2d at 449.
Filed the same day as Prout was the opinion in Watson v. State, 311 Md. 370, 535 A.2d 455 (1988). Both opinions were authored for the Court of Appeals by Judge Cole. In Watson the court had ruled, pretrial, that Watson's prior convictions were admissible for impeachment, thereby denying Watson's motion in limine. At trial, Watson testified in his own defense. Id. at 371-72, 535 A.2d at 456. At the conclusion of his direct testimony the State informed the court that it would introduce Watson's prior convictions, and the court reaffirmed its prior ruling. The State used the convictions in cross-examination, without further defense objection. Id. at 372, 535 A.2d at 456-57. Holding that the claim of error was preserved, the Court said that "requiring Watson to make yet another objection only a short time after the court's ruling to admit the evidence would be to exalt form over substance." Id. at 373 n. 1, 535 A.2d at 457 n. 1.
Judge Robert M. Bell, writing for this Court in Hickman v. State, 76 Md. App. 111, 543 A.2d 870 (1988), where he contrasted Prout with Watson, concluded as follows:
"It was, then, the temporal closeness between the court's reiteration of its ruling on the motion in limine and the State's use of the conviction, which was the subject of the motion in limine, during cross-examination of the accused that mandated the result in Watson."
Id. at 118, 543 A.2d at 874. This Court held in Hickman that a claim of improper impeachment of the accused was not preserved where the ruling on the motion came in the middle of the State's case and was not reiterated. Id.
In Ginsberg v. McIntire, 348 Md. 526, 704 A.2d 1246 (1998), a fact witness for the plaintiffs had become a circuit court judge after the events about which he would testify. On the morning that trial was to commence before a jury, the defense moved to preclude the plaintiffs from referring to the witness as a judge. That motion was denied. In opening statement, the plaintiffs did indeed refer to the witness as a judge and, later, did so repeatedly throughout the testimony of the witness. It was held that the motion in limine preserved the issue for appellate review. The Court said that "there was no need for the defense to insist on the court's reiterating the same ruling when [the witness] was referred to as a judge, unless counsel considered that the particular circumstances created some special prejudice." Id. at 545, 704 A.2d at 1255.
In the instant matter the trial court's ruling admitting the challenged evidence was made at the conclusion of the State's case not only once but twice. Solemekum objected, clearly articulating the correct reason why a sanitized conviction cannot be used for impeachment. Immediately thereafter, Solemekum testified on direct and cross-examination. We hold that Solemekum's objection was sufficiently temporally connected to the improperly admitted evidence for the claim of error to be preserved for appellate review.
II
Analysis of the second issue, whether Solemekum waived his objection by testifying to the prior conviction, is informed, but not controlled, by Ohler v. United States, supra, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826. The debate between the majority and minority in Ohler was over whether the trial tactic of having the accused take the stand and acknowledge the prior conviction (hereinafter, "preemptive use") should be free of the ordinary consequence of introducing evidence, namely, that the proponent thereby waives any right to seek reversal based on the proponent's own evidence. The argument for an exception from the ordinary rule is that the conviction would be presented by the prosecution in any event.
Ohler and the case before us present a variation on the problem presented in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), and Jordan v. State, 323 Md. 151, 591 A.2d 875 (1991). Both cases involved accuseds who did not testify, a factor which Solemekum submits makes Luce and Jordan distinguishable. In Luce the trial court ruled, in limine, that a certain conviction was admissible for impeachment. The defendant did not take the stand, the conviction was never introduced, and on appeal the defendant unsuccessfully argued that the Court should review and reverse the ruling. The Court considered the "possible harm" to be "wholly speculative" because the trial court's ruling was subject to change and because "the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction." Luce, 469 U.S. at 41-42, 105 S.Ct. at 463, 83 L.Ed.2d at 448.
Jordan involved a confession which, under the trial court's ruling, was usable, but only for impeachment because the accused did not knowingly waive the right to counsel. Jordan did not take the stand but, on appeal, challenged the ruling. Holding that the issue was not preserved, and citing Luce, the Court of Appeals was "not inclined to review a trial court's decision authorizing the State to use particular evidence when, as a result of a tactical decision by the defendant, the State ultimately was precluded from utilizing that same evidence." Jordan, 323 Md. at 156, 591 A.2d at 877. Further, the alleged injury was speculative because the State might not have used the statement to impeach and because it was "also possible that Jordan might have taken the stand and given testimony consistent with his statement to the police, thus precluding use of the statement since it would have no `impeachment' value." Id. at 156, 591 A.2d at 877.
In the instant matter Solemekum submits that the harm is not speculative. He notes that the trial judge not only ruled that the sanitized conviction could be used, but that the trial judge also repeated that ruling in a very firm manner. Similarly, it was the State in this case which sought to use the prior conviction and the State which proposed the alternative, "sanitized" approach. Solemekum submits that on this particular record the State clearly would have introduced the conviction had Solemekum not sought to take the sting out of it by preemptive use.
Solemekum's argument emphasizes the speculation aspect of the analysis in Jordan, but does not address that aspect of the analysis which looked to the traditional nature of trials and appellate review. The Jordan opinion, which we paraphrase to reflect the circumstances of the instant case, said:
"What [Solemekum] really seems to be asking for is that, when a trial judge improperly rules that an [inadmissible conviction] can be used to impeach, the defendant ought to be able to [reduce] the effect of the ruling by [preemptive use], but still have his conviction reversed because evidence that [he himself introduced] should not even have been available for introduction."
Id. at 157, 591 A.2d at 878.
Preemptive use was presented in Ohler, where it was held to effect a waiver. The majority relied upon the "well-established commonsense principle" that "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 majority further viewed the waiver consequence as one of the factors in the choices which both the prosecution and the defense must make in the trial of a criminal cause. The accused must decide whether to testify and, if so, whether preemptively to use the conviction and thereby waive any claim of error in the in limine ruling. Id. at 757-58, 120 S.Ct. at 1854, 146 L.Ed.2d at 831. Similarly, the prosecution must decide whether to risk reversal by use of the conviction, but the government enjoys "one inherent advantage" in that its decision may be made after the accused has testified on direct. Id. at 758, 120 S.Ct. at 1854, 146 L.Ed.2d at 831.
The dissenters in Ohler distinguished Luce and concluded that, inasmuch as Ohler testified, no speculation was involved in accepting that the prosecution would have used the conviction, absent preemptive use by the accused. Id. at 762-63, 120 S.Ct. at 1855-56, 146 L.Ed.2d at 833. Nor, in the dissenters' view, was waiver involved, because the "defendant has opposed admission of the evidence and introduced it herself only to mitigate its effect in the hands of her adversary." Id. at 762, 120 S.Ct. at 1856, 146 L.Ed.2d at 834. In support the minority cited, inter alia, 1 J. Wigmore, Evidence § 18, at 836 (Tillers rev. 1983) and M. Graham, Handbook of Federal Evidence § 103.4, at 17 (1981). Finally, the dissenters considered that a no-waiver rule served the purposes of the impeachment rule, because the conviction was brought into evidence, and that a no-waiver rule promoted fairness. It permitted the accused to avoid the impression of deceit by what the jury might consider to be an attempt to conceal the conviction. Ohler, 529 U.S. at 764, 120 S.Ct. at 1857, 146 L.Ed.2d at 835.
While Ohler has settled the issue in the federal system in favor of waiver, the majority of state courts hold that the issue is preserved for appellate review by the position against admissibility taken by the accused on the motion in limine. Either expressly or impliedly, these cases do not treat the preemptive use of the conviction as a waiver of the alleged error in the ruling. See State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980); People v. Carpenter, 21 Cal.4th 1016, 90 Cal.Rptr.2d 607, 988 P.2d 531, 556 (1999); State v. Miller, 186 Conn. 654, 443 A.2d 906 (1982); People v. Williams, 161 Ill.2d 1, 641 N.E.2d 296, 309-10 (1994); State v. Daly, 623 N.W.2d 799 (Iowa 2001); State v. Jones, 271 N.W.2d 761 (Iowa 1979); People v. Harris, 86 Mich. App. 301, 272 N.W.2d 635 (1979); McGee v. State, 569 So.2d 1191 (Miss. 1990); State v. Williams, 212 Neb. 860, 326 N.W.2d 678 (1982); State v. Eugene, 340 N.W.2d 18, 29 (N.D. 1983); State v. McGhee, 746 S.W.2d 460 (Tenn. 1988); Salt Lake City v. Holtman, 806 P.2d 235 (Utah App. 1991); State v. Ryan, 135 Vt. 491, 380 A.2d 525 (1977); State v. Hardy, 133 Wn.2d 701, 946 P.2d 1175, 1177 n. 2 (1997); State v. Watkins, 61 Wn. App. 552, 811 P.2d 953 (1991); Vanlue v. State, 87 Wis.2d 455, 275 N.W.2d 115 (Wis.App. 1978), rev'd on other grounds, 96 Wis.2d 81, 291 N.W.2d 467 (1980).
Courts in the following cases held that the preemptive use of an allegedly inadmissible conviction waived the claim of error and that it was not preserved by opposition to impeachment use of the conviction when the trial court ruled on a motion in limine. Rivers v. State, 792 So.2d 564 (Fla.App. 2001); State v. Idlebird, 896 S.W.2d 656, 663 (Mo.App. 1995); State v. Azure, 181 Mont. 47, 591 P.2d 1125 (1979); State v. Dunlap, 346 S.C. 312, 550 S.E.2d 889 (S.C.App. 2001), reh'g granted, 2002 S.C. App. LEXIS 7 (Jan. 24, 2002).
The rule applied by the numerical majority of state courts is contrary to current Maryland law. The Court of Appeals and this Court apply the rule described in 1 J. Strong, McCormick on Evidence § 55, at 246 (5th ed. 1999), where the author states:
"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. This result should obtain under the Federal and Revised Uniform Rules of Evidence. However, when his objection is made and overruled, he is entitled to treat this ruling as the `law of the trial' and to explain or rebut, if he can, the evidence admitted over his protest."
(Footnotes omitted). See 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); Attorney Grievance Comm'n v. Kerpelman, 288 Md. 341, 367, 420 A.2d 940, 953 (1980), cert. denied, 450 U.S. 970, 101 S.Ct. 1492, 67 L.Ed.2d 621 (1981); Peisner v. State, 236 Md. 137, 144, 202 A.2d 585, 590 (1964) , cert. denied, 379 U.S. 1001, 85 S.Ct. 721, 13 L.Ed.2d 702 (1965); Bean v. State, 234 Md. 432, 444, 199 A.2d 773, 779 (1964); Connor v. State, 225 Md. 543, 555, 171 A.2d 699, 705-06 (1961), cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961); Jensen v. State, 127 Md. App. 103, 127, 732 A.2d 319, 332 (1999), cert. denied, 356 Md. 178, 738 A.2d 855 (1999) ("If self-inflicted prejudice could result in reversal, no criminal trial could be safe from a `plain error' attack.").
The precise issue that is before us was addressed in considered dicta by Judge Orth, writing for this Court in Johnson v. State, 9 Md. App. 166, 263 A.2d 232 (1970). There, this Court held that under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), use for impeachment purposes of a prior conviction obtained without the assistance of counsel or without a valid waiver thereof violated the Sixth Amendment to the Federal Constitution. Pointing out that Burgett did not disturb state procedural requirements this Court said:
"If timely objection is not made below the question of the admissibility of a prior conviction is not preserved for appeal. Rule 1085 . . . . 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."
Johnson, 9 Md. App. at 177, 263 A.2d at 239.
Judge Orth's observation rests on the commonsensical premise that a party may not blow hot and cold at the same time. McCormick on Evidence, supra, § 55, at 296 n. 14. We hold that Solemekum may not now complain that the evidence which he himself introduced was inadmissible.
III
If the matter of Solemekum's prior conviction had been left to rest as it lay at the conclusion of his direct examination, we would affirm the conviction. The State, however, went further and sought to obtain an additional advantage from the erroneous ruling, beyond what Solemekum had already admitted. The State developed that the prior conviction was in December 1999, a little better than one year prior to the trial in the present case. The State further developed that the length of the probationary period imposed under the earlier conviction was eight years and five months. In the rebuttal phase of final argument, the State described Solemekum as a drug dealer and convicted felon who was on probation "and backing up time if convicted," who had lied to the police, and who took over eight months to come up with a "phony story."
If Solemekum's prior conviction had been an impeachable offense, the State would have been permitted to develop, as part of its cross-examination, the date of the offense and the sentence imposed. See Foster v. State, 304 Md. 439, 470, 499 A.2d 1236, 1252 (1985). But, here, Solemekum's sanitized conviction was not admissible. State v. Bells, 134 Md. App. at 310, 759 A.2d at 1155. Ordinarily, when the proponent of inadmissible evidence introduces it over the overruled objection of the opponent, the opponent may cross-examine on that same subject matter, in an effort to mitigate or rebut, without waiving the prior objection. Here, the ordinary roles are reversed. The State is the proponent of the evidence, and Solemekum is the opponent of the evidence. We have held in Part I, supra, that Solemekum's opposition in limine preserved for appellate review his claim of error in the use of the prior conviction by the proponent. We have also held, in Part II, supra, that Solemekum's preemptive use waived the objection to the extent of the evidence that he introduced. That, however, does not entitle the State to introduce inadmissible evidence on the same subject matter in cross-examination. Here, the ordinary relationships do not apply. The State, as the actual proponent of the evidence, may not take advantage of the erroneous position which it urged the trial court to adopt, beyond the advantage volunteered by Solemekum.
We cannot say that the State's embellishment on the prior conviction, including particularly the fact that Solemekum was backing up more then eight years for violation of probation, was harmless beyond a reasonable doubt. Accordingly, we reverse.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED AND CASE REMANDED. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
Concurring Opinion follows:
I agree that appellant was unfairly prejudiced when the State exploited "the erroneous position which it urged the trial court to adopt," and I therefore concur in the judgment. In this case, however, because it is clear that appellant would be cross-examined about the inadmissible conviction, I would also hold that his decision to take the sting out of that evidence did not constitute a waiver.