Burnside v. State

CARL FRANKLIN BURNSIDE v. STATE OF MARYLAND

No. 71

COURT OF APPEALS OF MARYLAND

Argued: May 2, 2018

September Term, 2017

July 11, 2018

CRIMINAL LAW — EVIDENCE — PRIOR CONVICTION IMPEACHMENT — The Court of Appeals held, consistent with Dallas v. State, 413 Md. 569, 993 A.2d 665 (2010), that a trial court should make a preliminary ruling regarding the admission of a prior conviction, when the trial court has appropriate means of determining how a defendant might testify and it is apparent that a delayed ruling would likely cause a chilling effect on the defendant's constitutional right to testify.

CRIMINAL LAW — EVIDENCE — MARYLAND RULE 5-609 — The Court of Appeals held that the trial court failed to exercise its discretion, thereby committing an abuse of discretion, when it refused to conduct a Maryland Rule 5-609 balancing test prior to the defendant's election to testify.

Circuit Court for Washington County

Case No. 21-K-16-052453

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

Opinion by Greene, J.

Watts and Getty, JJ., concur and dissent.

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 identificationand 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 suspicious¹ 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 distributecharges 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...