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Burnside v. State

Court of Appeals of Maryland

July 11, 2018

CARL FRANKLIN BURNSIDE
v.
STATE OF MARYLAND

          Argued: May 2, 2018

          Circuit Court for Washington County Case No. 21-K-16-052453

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          GREENE, J.

         In this case we must decide whether it was an abuse of discretion for the trial court to choose to wait until after the defendant testified before ruling on the admissibility of the defendant's prior conviction for purposes of impeachment. Maryland Rule 5-609 ("Rule 5-609" or "the Rule") permits the admission of prior convictions for impeachment purposes, so long as the conviction is within the class of convictions concerning credibility, 15 years have not elapsed since the conviction and the probative value of the conviction outweighs its prejudicial effect. The Rule embodies our respect for these interests and serves as the starting point from which all trial judges must begin in order to strike the appropriate balance. Our decision today reconciles the competing interests between a defendant's constitutional right to testify and the State's less-protected right to cross-examine a defendant for impeachment purposes. We are specifically called upon to examine whether the trial judge struck the appropriate balance in Carl Burnside's ("Petitioner" or "Mr. Burnside") trial, in which Mr. Burnside was convicted for possession with intent to distribute a controlled dangerous substance.

         I. Facts

         The facts presented at trial are as follows. On April 4, 2016, shortly after midnight, Deputy Kyle Snodderly stopped a vehicle operating with only one illuminated headlight in Hagerstown, Washington County, Maryland. There were two individuals in the vehicle, the driver, Nicholas Knight, and Petitioner, Carl Burnside, who sat in the front passenger seat. Mr. Knight produced a driver's license that authorized him to drive only to and from his place employment. Deputy Snodderly testified that Petitioner produced identification and informed Deputy Snodderly that he may have had outstanding traffic warrants. The vehicle was registered to a Joey Jones in Philadelphia, Pennsylvania. Petitioner informed the deputy that Mr. Jones was his cousin, and Mr. Knight informed Deputy Snodderly that he was helping Mr. Burnside to relocate from Philadelphia to Hagerstown, Maryland.

         With regard to the initial traffic stop, Deputy Snodderly testified that he became suspicious[1] about the occupants in the vehicle because he did not observe any items in the vehicle-other than a dirty fish tank-that were consistent with Mr. Knight's statement that he was helping Petitioner move. Deputy Snodderly's warrant check confirmed that Petitioner had an outstanding warrant for driving without a license. Upon confirmation, Deputy Snodderly called for backup and placed Petitioner in custody and searched Petitioner incident to the arrest. Shortly thereafter, Deputy Jasen Logsdon arrived on the scene as backup. The search of Mr. Burnside produced $5, 169.69 cash in mostly $20 bills, and a cell phone. Despite Mr. Burnside's statement that some of the cash was for his rent, and some of it was money he won at a casino, [2] Deputy Logsdon requested a K-9 unit to conduct a "free air sniff" of the vehicle because of the large amount of cash recovered from Petitioner, which apparently is typical of "people that partake in drug sales [and] distribution."

         Officer Curtis Kelley arrived on the scene with his K-9 partner, Jackie. Jackie indicated a positive alert for a controlled dangerous substance near the trunk of the car. Mr. Knight was asked to step out of the vehicle upon Jackie's positive alert. Mr. Burnside also informed one of the officers that there was a marijuana cigarette in the ashtray of the vehicle. The vehicle search recovered the partially smoked marijuana cigarette, three hypodermic syringes associated with heroin usage, a metal spoon with "white powdery residue on the bowl and black burn marks on the bottom side," a large quantity of Ziploc baggies, each containing heroin or cocaine, a large quantity of empty Ziploc baggies, a digital scale with heroin residue on it, a duffle bag, and a shower bag containing toiletries.[3]Deputy Logsdon testified that he searched Mr. Knight twice; the first search revealed nothing and the second search revealed an orange syringe cap.

         Mr. Knight was called as a State witness in Mr. Burnside's criminal proceedings. On direct examination, Mr. Knight testified that he was charged with intent to distribute heroin and crack cocaine, with possession of controlled paraphernalia, and for driving on a restricted license. He testified that he entered a plea agreement with the State in which he pled guilty to possession of controlled paraphernalia, i.e., the syringes recovered from the vehicle, in exchange for "pre-trial sentencing and probation." He testified that he was addicted to drugs and that he was participating in a court-ordered drug rehabilitation program. On cross-examination, he testified that his possession with intent to distribute charges were dropped in exchange for his testimony against Mr. Burnside and that his sentencing for the possession of paraphernalia was delayed until after Mr. Burnside's trial. Mr. Knight explained that the delayed sentencing would allow the State to observe and evaluate his testimony against Mr. Burnside. When asked on cross-examination if he had ever sold heroin or crack cocaine, he replied in the negative. Finally, when defense counsel asked Mr. Knight if he knew Jason Marshall, William Bucklew, or Scott Dorman, Mr. Knight denied knowing all three individuals.

         The Defense presented three witnesses: Jason Marshall, William Bucklew, and Scott Dorman. Each of the individuals testified to purchasing drugs from Mr. Knight. Mr. Marshall testified that he purchased heroin from Mr. Knight two years before the time of his testimony, and that a friend of his purchased drugs from Mr. Knight. Mr. Bucklew testified that he purchased heroin from Mr. Knight in February or March 2016. Mr. Dorman testified that he purchased heroin and what he thought to be crack cocaine from Knight six to seven months before the time of his testimony. Mr. Burnside did not testify in his defense.

         Mr. Burnside's Theory of Defense

         For a trial judge to conduct an appropriate balancing test, he or she must have some knowledge regarding the nature of a defendant's testimony, which is usually illuminated by the defendant's theory of defense. The State contends that Petitioner's theory of the case was too ambiguous for the trial judge to conduct an informed balancing test prior to Petitioner's testimony. The record suggests that the Defense's theory centered around the fact that there was another individual, Mr. Nicholas Knight, in the vehicle with Petitioner, and that Mr. Knight could have been in actual or constructive possession of the drugs recovered from the vehicle. During the opening statement the Defense encouraged the jury to

pay attention to the details[]. . . . because once Nicholas Knight was taken into custody himself, and they recovered a cell phone from him as well [as] [] forty-five dollars in cash. . . . [and] three caps to the syringes that were found right next to him, the driver's side and the console.
Defense counsel explained to the jury that:
[T]he evidence . . . will show that Mr. Knight had possession of the key to the car. Mr. Knight . . . [was] the one who [was] driving the vehicle in violation of the law. The evidence will also show that behind the closed passenger compartment is [] a black hide-away-key. . . . [but] [t]here is no such thing as a driver's side passenger compartment . . . . [t]here is only one glovebox in the car. It's always in front of the passenger.
The evidence will show that Mr. Knight was charged with the exact same offenses . . . . [b]ut he was able to avoid felony convictions and significant prison time by simply walking into the courtroom . . . [and] point[ing] the finger at [Mr. Burnside]. By cutting a deal . . . he gets to walk out that door and go home.

         Later, during a bench conference regarding the admission of a receipt into evidence, defense counsel objected to its admission partly "because obviously the[] central issue here for the jury to decide is [] whose drugs are they." To which the Court replied, "Right."

         When viewed collectively, the defense attorney's comments during opening statement and the bench conference, and the defendant's three witnesses, outline the theory of the defense in this case. The crux of the defense theory was to cast reasonable doubt on Mr. Burnside's connection to the drugs and to suggest that Mr. Knight could have possessed the drugs with the intent to distribute.

         Mr. Burnside's Decision to Not Testify

         After Marshall, Bucklew, and Dorman testified, defense counsel advised Mr. Burnside, out of the hearing of the jury, of his Fifth Amendment right against self-incrimination and informed him that because he had a prior conviction for possession with intent to distribute a controlled dangerous substance, [4] she would ask the court to conduct a balancing test "to determine whether or not the State would be allowed to use [] [that] prior conviction against [him]." When asked if he wished to testify in light of the potential impeachment, Mr. Burnside replied:

[BURNSIDE]: I just know that if my past is going to be used against me, then I would not like to be testifying because it would be bias, it would be biased [sic] me to the charges I'm facing right now.
[DEFENSE COUNSEL]: You are saying you would be afraid you would be prejudiced?
[BURNSIDE]: Yes
[DEFENSE COUNSEL]: I believe he has a conviction your Honor. The only thing is the State has served us with mandatory minimum notice as well as subsequent offender notice and they have attached a certified docket entry for possession with intent. It does not say what substance it is, [] but there is a conviction for that offense. And I can't recall if it was 2011 or 2012 when it occurred.
[BURNSIDE]: 2012.
[DEFENSE COUNSEL]: Okay. Okay. And I would just ask this Court, if - - if the [c]ourt would conduct a balancing test. I would agree that it is [] within the purview of crimes that are involving dishonesty. . . . I would agree that it's been for the past 15 years. But part three of that test, according to Jackson would be whether or not it would be more prejudicial than it would be probative. We would argue that [] in this instance with a man who is on trial for possessing with intent to distribute, my fear would be that if the [c]ourt were to allow that, the State to impeach him with a prior conviction that the jury would base their decision solely on his previous conviction and not based upon the evidence presented here today.
[THE STATE]: Your honor, I do have the case that uh (inaudible) if he takes the stand and he opens the door than he would be subject to impeachment. . . .
[THE COURT]: That's - - It is a balancing test but I don't think I need to make the balancing decision before he testifies. I think it's his decision whether he wants to testify or doesn't want to testify. If he takes the stand and the State attempts to bring up his prior conviction then we will have a determination at that time, but I'm not going to preliminarily make that decision.
[BURNSIDE]: I choose to exercise my Fifth Amendment right to remain silent and not testify due to his Honor's previous objections for anything I say on our [sic] behalf.
[DEFENSE COUNSEL]: So, it is your decision not to testify.
[BURNSIDE]: Yes, I don't want to testify. I won't get no [sic] justice.
The defense rested its case after Mr. Burnside elected not to testify. On September 16, 2016, after the jury heard testimony from the three arresting officers, a drug distribution expert, a controlled dangerous substances expert, three defense witnesses, and reviewed physical evidence including photos of the confiscated drugs, the jury convicted Mr. Burnside of possession with intent to distribute heroin and possession of cocaine. He was sentenced to 15 years, with the first 10 to be served without the possibility of parole. The jury acquitted him of possession with intent to distribute cocaine, and the State filed a nolle prosequi[5] to the charge of possession of drug paraphernalia.

         Procedural History

         Mr. Burnside noted a timely appeal to the Court of Special Appeals raising five issues for review with only one relevant to our holding today. Burnside v. State, No. 2182, Sept. Term, 2016 (2017). Burnside contended that the trial court failed to exercise its discretion when it chose not to give an advance ruling on the admissibility of his prior conviction. Id. Mr. Burnside argued that the trial court's failure to exercise its discretion amounted to an abuse of discretion, given his desire to make an informed decision on whether he should testify. Id. The State contended that Mr. Burnside failed to preserve the issue for review because defense counsel did not object when the trial court declined to conduct the balancing test. Id. In an unreported opinion, the Court of Special Appeals affirmed the conviction holding, among other things, that it would have been "premature" for the trial court to engage in a balancing test without observing Mr. Burnside's testimony first. Id.

         In his petition for writ of certiorari, Mr. Burnside presented the following questions:

1. Where Petitioner was on trial for a felony drug offense and his theory of defense was clear and consistent throughout the trial, did the trial court abuse its discretion, or fail to properly exercise discretion, in refusing to rule upon the admissibility for impeachment purposes of Petitioner's prior felony drug ...

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