Argued: May 2, 2018
Circuit Court for Washington County Case No. 21-K-16-052453
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
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.
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,
regard to the initial traffic stop, Deputy Snodderly
testified that he became suspicious 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,
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]
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.Deputy Logsdon testified that he searched
Mr. Knight twice; the first search revealed nothing and the
second search revealed an orange syringe cap.
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.
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.
Burnside's Theory of Defense
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.
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."
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.
Burnside's Decision to Not Testify
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,
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]: 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?
[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.
[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 to the charge of possession of drug
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.
petition for writ of certiorari, Mr. Burnside presented the
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 ...