Ten Years Have Got Behind You: Supreme Court of Mississippi Affirms Conviction Because Defense Counsel Fails To Cite Rule 609(b)

Like its federal counterpart, Mississippi Rule of Evidence 609 provides, inter alia, that a criminal defendant can be impeached through his prior felony convictions not involving dishonesty or false statement if their probative value outweighs their prejudicial effect. Moreover, it is well established that a criminal defendant cannot appeal a trial court's ruling deeming his prior convictions admissible to impeach him unless he actually takes the witness stand and subjects himself to impeachment (or at least proffers his proposed testimony). Defense counsel in these cases thus faces a difficult decision. Does he have his client take the witness stand, knowing that his prior convictions could lead to his present conviction, but also knowing that he will be able to appeal the present conviction? Or does he have his client avoid taking the witness stand, hoping that this will lead to his client winning at trial but knowing that if he loses, no appeal can follow? It is tough to fault defense counsel for making either of these choices, but it is apparently easier to fault defense counsel for Ivan McClellan based upon the recent opinion of the Supreme Court of Mississippi in McClellan v. State, 2010 WL 1077322 (Miss. 2010).

In McClellan, Ivan Russell McClellan was convicted of possessing two methamphetamine precursors and possessing 250 dosage units of pseudoephedrine. Previously,  McClellan was convicted of burglary on July 3, 1996, and received a three-year sentence. At the close of the prosecution's case in McClellan, the trial judge ruled that this prior conviction would be admissible to impeach McClellan should he testify on his own behalf, finding that the probative value of this conviction outweighed any prejudicial effect. McClellan thereafter did not testify.

After he was convicted, McClellan appealed, claiming, inter alia, that the trial court erred in deeming his prior convcition admissible for impeachment purposes. The Supreme Court of Mississippi, however, found that it did not need to address this issue because

Where a criminal defendant chooses not to testify after the trial court has ruled that his or her prior convictions may be used as impeachment evidence, the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a "chilling effect" on his right to testify if he fails to proffer his proposed testimony...."At the very least, a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense."...Because McClellan failed to proffer his testimony, he is procedurally barred from arguing that the trial court's ruling which would have allowed the State to impeach him with his prior burglary conviction prevented his putting on a defense.

In a footnote, though, the Mississippi Supremes deduced that McClellan's conviction was more than ten years old at the time of his trial. If this fact were true, McClellan's prior conviction should have been governed by Mississippi Rule of Evidence 609(b), which provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such eviidence.

The court noted, however, that it did not need to address this issue because defense counsel failed to raise it either at trial of on appeal.

-CM