Federal Evidence Review

Sixth Circuit concludes that by electing not to testify in his cocaine conspiracy trial, the defendant waived his right to appeal the denial of his motion in limine to exclude impeachment with his prior state court theft convictions, in United States v. Gunter, 551 F.3d 472 (6th Cir. Jan. 8, 2009) (No. 07-5277)

A trial court’s decision to admit impeachment conviction evidence can result in the tactical decision not to testify. A recent Sixth Circuit case highlights that the decision not to testify can waive any challenge on appeal to the trial court’s ruling denying a motion to exclude an impeachment conviction.

In the case, an investigation culminated in the arrest and prosecution of defendant Gunter in a cocaine conspiracy. Before trial, he moved in limine to exclude evidence of his prior theft convictions under FRE 609(a)(2) if he “elected to testify.” The trial judge found the prior state theft convictions were admissible as an offense involving dishonesty under FRE 609(a)(2). In addition, the trial judge indicated that if the defendant testified, placing his credibility at issue, that “any unfair prejudice would be outweighed by the impeachment value of the testimony, and the convictions would be admissible under Rule 609(a)(1).” Gunter, 551 F.3d at 483. During the trial, the defendant elected not to testify. After his conviction, on appeal, he claimed that the trial court’s pretrial decision deprived him of his right to testify.

The Sixth Circuit declined to address the merits of the defendant’s claim on appeal. The circuit agreed with the government that Luce v. United States, 469 U.S. 38, 43 (1984) precluded review of the merits of the defendant’s claim. As the Sixth Circuit explained:

“In Luce, a federal defendant argued that the district court abused its discretion in ruling that he could be impeached with his prior conviction. The Supreme Court affirmed the conviction, reasoning that any harm from the challenged ruling was speculative, and holding that ‘to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.’”

Gunter, 551 F.3d at 483 (quoting Luce, 469 U.S. at 43).

The Sixth Circuit rejected the defendant’s efforts to distinguish Luce as construing FRE 609 and not the Sixth Amendment right to testify:

“This Court has continued to apply Luce, even after Rock [ v. Arkansas, 483 U.S. 44 (1987)] was decided, to hold that the admissibility of prior convictions is not appealable when a defendant does not testify. See United States v. Godinez, 114 F.3d 583, 586 (6th Cir. 1997); United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992). Moreover, the Supreme Court has since decided Ohler v. United States, 529 U.S. 753 (2000), where it found no constitutional violation in a ruling that might deter defendants from taking the stand, so long as it does not prevent them from doing so. Id. at 759. The Court explained that ‘it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.’ Id. at 759-60 (quoting McGautha v. California, 402 U.S. 183 (1971)). Consistent with Luce and Ohler, we find that Gunter was not prevented from testifying and that, by failing to do so, he waived his right to appeal the in limine ruling regarding the admissibility of his prior crimes.”

Gunter, 551 F.3d at 484.

The Gunter decision points out that the challenges on the decision of a party to testify where the trial court has ruled prior impeachment convictions may be admitted. In testifying, the jury will learn about the prior convictions to assess the credibility of the party. In declining to testify, any challenge to the decision to admit the prior convictions for impeachment purposes will be waived.

Photo Description: Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, OH.