Wednesday, July 18, 2012
In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. So, does the same reasoning apply under Federal Rule of Evidence 609(b) and state counterparts? According to the recent opinion of the Court of Appeals of Georgia in Warbington v. State, 2012 WL 2580798 (Ga.App. 2012), the answer is "yes."In Warbington, Richard Warbington
was indicted on multiple charges stemming from his physical and verbal attacks upon his girlfriend, her family members, her friend, and her neighbor. Before his March 2011 jury trial began, Warbington moved to preclude the state from using his numerous prior convictions to impeach him if he testified. Warbington made no commitment that he would testify if his motion were granted, nor did Warbington proffer to the court what his testimony would be. The trial court ruled in Warbington's favor, except in regard to two felony convictions, which the court determined fell within the category of permissible impeachment evidence under OCGA § 24–9–84.1. More specifically, the court ruled that a 2009 drug conviction was permissible under subsection (a)(2) and that a 2000 aggravated assault conviction was permissible under subsection (b) of OCGA 24–9–84.1. Warbington did not testify, however, and the two convictions were not introduced in evidence at trial. The jury returned guilty verdicts.
After Warbington was convicted, he appealed, claiming that the trial court erred by deeming his 2000 aggravated assault conviction admissible to impeach him in the event that he testified. Subsection (a)(2) of OCGA § 24–9–84.1 is the counterpart to Federal Rule of Evidence 609(a)(2), with both rules deeming a conviction for a crime of dishonesty or false statement per se admissible to impeach the credibility of a witness. Meanwhile, subsection (b) of OCGA § 24–9–84.1 is the counterpart to Federal Rule of Evidence 609(b), with both deeming a conviction for a crime that is more than ten years old only admissible to impeach the credibility of a witness if, inter alia, its probative value substantially outweighs its prejudicial effect.
Because Georgia courts adhere to Luce, Warbington clearly failed to preserve the issue of whether his 2009 drug conviction was admissible. But does Luce apply to convictions that are more than ten years old, such as the 2000 aggravated assault conviction? This was the issue of first impression addressed by the Court of Appeals of Georgia in Warbington. And that court answered the question in the affirmative,
conclud[ing] that the rationale underlying Luce...controls here, where Warbington did not testify. The record consequently is not amenable to meaningful appellate review. Because Warbington declined to testify, we will not speculate on the substantive merits of his contention that the trial court's pretrial ruling was prejudicial error.