State v. Smyers

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0284-PR
Appellee, )
) Court of Appeals
) Division One
v. ) No. 1 CA-CR 02-0422
)
) Maricopa County
) Superior Court
DANIEL JOHN SMYERS, ) No. CR 2001-008644
)
Appellant. ) O P I N I O N
)
)
)
__________________________________)

Appeal from Superior Court in Maricopa County
No. CR 2001-008644
The Honorable Jeffrey A. Hotham
AFFIRMED

Opinion of Court of Appeals, Division One
205 Ariz. 479, 73 P.3d 610 (App. 2003)
VACATED IN PART

Terry Goddard, Attorney General Phoenix
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Jon G. Anderson, Assistant Attorney General
Attorneys for State of Arizona

Maricopa County Public Defender Phoenix
by Stephen R. Collins, Deputy Public Defender
Attorneys for Daniel John Smyers

M c G R E G O R, Vice Chief Justice

¶1 This case requires us to examine again whether a

defendant must testify in order to preserve for appeal a
challenge to an adverse pretrial ruling allowing the defendant’s

prior convictions to be admitted for impeachment purposes. We

exercise jurisdiction pursuant to Article VI, Section 5.3 of the

Arizona Constitution and Arizona Revised Statutes (A.R.S.)

section 13-4031 (2001).

I.

¶2 On June 8, 2001, the State charged Daniel Smyers with

two counts of furnishing obscene or harmful items to a minor.

Prior to trial, the State filed a motion based upon Arizona Rule

of Evidence 609,1 asking permission to introduce Smyers’ prior

felony conviction for attempted child abuse as impeachment

evidence if Smyers testified. Smyers objected, arguing that his

prior conviction was not probative of the charged offense. In

the alternative, Smyers argued that if the conviction were

admitted, the trial court should “sanitize” the conviction to

indicate only the fact of a prior conviction. The trial judge

1
Arizona Rule of Evidence 609(a) states:

For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted
of a crime shall be admitted if elicited from the
witness or established by public record, if the court
determines that the probative value of admitting this
evidence outweighs its prejudicial effect, and if the
crime (1) was punishable by death or imprisonment in
excess of one year under the law under which the
witness was convicted or (2) involved dishonesty or
false statement, regardless of the punishment.

Ariz. R. Evid. 609(a).

2
ruled that he would allow the State to introduce the name of the

offense, the court, the date, and whether Smyers was assisted by

counsel, but would not permit evidence describing the class or

the facts of the felony. Smyers chose not to testify at trial.

The jury convicted Smyers of the charged offenses.

¶3 On appeal, Smyers initially did not challenge the

trial court’s pretrial ruling. Nevertheless, the court of

appeals ordered the parties to file supplemental briefs to

address whether the trial court committed reversible error by

conditionally admitting Smyers’ prior conviction. State v.

Smyers, 205 Ariz. 479, 481 ¶ 9, 73 P.3d 610, 612 (App. 2003).

In doing so, the court of appeals recognized that “[i]t has been

settled . . . that a defendant’s decision not to testify at

trial serves to waive his right to challenge on appeal the trial

court’s ruling on the admissibility of his prior conviction.”

Id. at 482 ¶ 11, 73 P.3d at 613 (citing Luce v. United States,

469 U.S. 38, 43 (1984); State v. Lee, 189 Ariz. 608, 617, 944

P.2d 1222, 1231 (1997); State v. White, 160 Ariz. 24, 30, 770

P.2d 328, 334 (1989); State v. Correll, 148 Ariz. 468, 475, 715

P.2d 721, 728 (1986); State v. Allie, 147 Ariz. 320, 327, 710

P.2d 430, 437 (1985)).

¶4 Although the court of appeals recognized this binding

precedent, it reframed the issue before it as follows:

3
 [T]he issue with which we are confronted is one
preliminary—and critical—to a defendant’s informed
decision whether to testify: Does a trial court’s
error with regard to the terms of the admissibility of
the defendant’s prior conviction for the purpose of
impeaching the defendant taint the defendant’s
decision about testifying such that the decision
cannot be found to have been a reasoned and knowing
one?

Id. After finding the trial court’s ruling to be in error, the

court concluded that the “error cannot be considered to have

been harmless” because “there is no fair assurance that Smyers’

decision not to testify did not unduly affect the verdict.” Id.

at 484 ¶ 23, 73 P.3d at 615. The court therefore reversed

Smyers’ convictions. For the reasons discussed below, we vacate

the opinion of the court of appeals and affirm Smyers’

convictions.2

II.

¶5 The court of appeals erred by disregarding long-

established and controlling Arizona law that requires a

defendant to testify at trial before he can challenge an adverse

pretrial ruling conditionally admitting prior convictions for

impeachment. See, e.g., Lee, 189 Ariz. at 617, 944 P.2d at

1231; White, 160 Ariz. at 30, 770 P.2d at 334; State v. Schrock,

2
Before finding reversible error in the conditional
admission of the prior conviction, the court of appeals rejected
Smyers’ only other argument for reversal of his convictions.
Smyers, 205 Ariz. at 481 ¶¶ 6-8, 73 P.3d at 612. We did not
grant review of that issue. Therefore, we do not vacate
paragraphs two through eight of the court of appeals’ decision.

4
149 Ariz. 433, 437, 719 P.2d 1049, 1053 (1986); Correll, 148

Ariz. at 475, 715 P.2d at 728; Allie, 147 Ariz. at 327, 710 P.2d

at 437; State v. Barker, 94 Ariz. 383, 386, 385 P.2d 516, 518

(1963).

¶6 We first stated this rule more than forty years ago in

Barker, 94 Ariz. at 386, 385 P.2d at 518. Barker claimed that

the trial court erred in denying his motion to direct the State

“to refrain from cross-examining him on a former conviction for

manslaughter which occurred some sixteen (16) years prior.” Id.

at 385, 385 P.2d at 517. Barker argued that the denial of his

motion to preclude the use of his prior conviction “prevented

him from taking the witness stand and testifying on his own

behalf.” Id. Rejecting the defendant’s argument, this court

stated:

The State argues that there is nothing before this
Court on which to predicate a reversal of the trial
court, that having received this adverse ruling
appellant should have proceeded with his case by
taking the stand then raising the question if the
State attempted to establish the prior conviction. We
are in agreement with the position adopted by the
State. First, the appellant is assuming that had
defendant taken the stand the county attorney would
have used the prior manslaughter conviction by
attempting to impeach his credibility. Second,
appellant is assuming that the trial court would have
adhered to its initial ruling. . . .

Id. at 386, 385 P.2d at 518.

¶7 More than twenty years later, the United States

Supreme Court reached the same conclusion when it examined

5
whether a non-testifying defendant “is entitled to review of the

District Court’s ruling denying his motion to forbid the use of

a prior conviction to impeach his credibility.” Luce, 469 U.S.

at 39. In Luce, the defendant moved to prevent the use of a

prior conviction to impeach him if he testified. Id. The

district court denied the motion, finding the conviction

admissible under Federal Rule of Evidence 609(a). On appeal,

the circuit court held that when a defendant does not testify,

it will not review the district court’s ruling. Id. at 39-40.

¶8 The Supreme Court agreed that a defendant must testify

in order to raise and preserve for review the claim of improper

impeachment with a prior conviction. Id. at 43. In reaching

this conclusion, the Court recognized that a “reviewing court is

handicapped in any effort to rule on subtle evidentiary

questions outside a factual context.” Id. at 41. Specifically,

the Court reasoned that the absence of the defendant’s testimony

deprives the court of information that is essential to weighing

the probative value against the prejudicial effect of the use of

the conviction. Id.

¶9 Next, the Court explained, without the defendant’s

testimony, any harm to the defendant is speculative because the

trial court’s ruling is subject to change and a reviewing court

“has no way of knowing whether the Government would have sought

to impeach with the prior conviction.” Id. at 41-42. In

6
addition, because “an accused’s decision whether to testify

‘seldom turns on the resolution of one factor,’” a reviewing

court cannot assume that the adverse ruling motivated a

defendant’s decision not to testify. Id. at 42 (quoting New

Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J.,

dissenting)). Finally, “[e]ven if these difficulties could be

surmounted,” the Court added, a reviewing court could not

determine if any error is harmless. Id. “Were in limine

rulings under Rule 609(a) reviewable on appeal, almost any error

would result in the windfall of automatic reversal; the

appellate court could not logically term ‘harmless’ an error

that presumptively kept the defendant from testifying.” Id.

Based on these reasons, the Court concluded that “to raise and

preserve for review the claim of improper impeachment with a

prior conviction, a defendant must testify.” Id. at 43.

¶10 Less than a year after the Supreme Court decided Luce,

this court, “to clear up some confusion that ha[d] arisen in the

lower courts,” reiterated the “well settled” rule that, under

Arizona law, a defendant who does not testify at trial cannot,

on appeal, challenge an adverse pretrial ruling conditionally

admitting a prior conviction for impeachment purposes. Allie,

147 Ariz. at 327, 710 P.2d at 437. In Allie, a jury convicted

the defendant of one count of burglary and one count of armed

robbery. Id. at 322, 710 P.2d at 432. Prior to trial, the

7
State sought to introduce Allie’s two prior felony convictions

into evidence. After conducting a pretrial hearing on this

issue, the trial court ruled that Allie’s prior convictions

would be admissible to impeach Allie if he took the stand.

Allie chose not to testify. Id. at 327, 710 P.2d at 437.

¶11 On appeal, Allie challenged the trial court’s pretrial

ruling. Id. Reasoning that “his right to testify outweighs the

possible probative value of admitting his prior convictions,

especially when combined with the risk that the jury would not

respond to a limiting instruction,” Allie urged this court to

adopt a rule that would “altogether preclude impeachment of a

defendant with his prior convictions.” Id. Without examining

the merits of Allie’s argument, we reiterated the rule that a

defendant must testify at trial to preserve a challenge to an

adverse pretrial ruling allowing a prior conviction to be

admitted. Id.

¶12 In the twenty years following Allie, this court has

consistently and unequivocally applied the Allie rule in holding

that a non-testifying defendant cannot challenge a trial court’s

pretrial ruling that a prior conviction may be used to impeach

him. See Lee, 189 Ariz. at 617, 944 P.2d at 1231; White, 160

Ariz. at 30-31, 770 P.2d at 334-35; Schrock, 149 Ariz. at 437,

719 P.2d at 1053; Correll, 148 Ariz. at 475, 715 P.2d at 728.

None of these cases provides any basis for the court of appeals’

8
decision to examine the “preliminary” issue of whether the trial

court’s ruling “taint[s] the defendant’s decision about

testifying such that the decision cannot be found to have been a

reasoned and knowing one.” Smyers, 205 Ariz. at 482 ¶ 11, 73

P.3d at 613.

¶13 Indeed, Correll involved a pretrial ruling similar to

that challenged in this case. In Correll, the State sought to

introduce the defendant’s prior convictions, including a

conviction for robbery using a firearm. Correll, 148 Ariz. at

478, 715 P.2d at 731. The trial judge “sanitized” the

conviction and permitted the State to “only prove the

convictions of the felony and the name and the date and location

. . . without elaboration.” Id. at 475, 715 P.2d at 728. The

defendant did not testify. The jury then convicted the

defendant of, among other things, armed robbery and first-degree

burglary. Id. at 471, 715 P.2d at 724. On appeal, this court

reiterated the Allie rule. Id. at 475, 715 P.2d at 728.

¶14 This court not only has consistently applied the Allie

rule but also has extended its reasoning to the use, for

impeachment purposes, of involuntary statements and statements

made in violation of Miranda. See, e.g., State v. Gonzales, 181

Ariz. 502, 512, 892 P.2d 838, 848 (1995) (“We hold that by

choosing not to testify, Gonzales waived his right to claim that

the trial court erroneously ruled involuntary statements

9
admissible to impeach.”); State v. Conner, 163 Ariz. 97, 102-03,

786 P.2d 948, 953-54 (1990). In Conner, for example, we held

that a non-testifying defendant may not challenge a trial

court’s pretrial decision to allow statements obtained in

violation of Miranda to be used for impeachment purposes.

Conner, 163 Ariz. at 103, 786 P.2d at 954. Foreshadowing the

court of appeals’ approach in this matter, the defendant had

argued that the trial court’s pretrial ruling “inhibited his

decision on whether to testify.” Id. at 102, 786 P.2d at 953.

Rejecting the defendant’s argument and reaffirming the public

policy considerations underlying Allie and Luce, we stated:

We believe Luce and Allie are based on sound policy
considerations. Without defendant’s testimony, a
reviewing court cannot properly weigh the probative
value of the testimony against the prejudicial impact
of the impeachment. This balancing requires a
complete record, including defendant’s testimony, the
cross-examination and an analysis of the impact of the
impeachment evidence on the jury. Furthermore,
without defendant’s testimony, the court is left to
speculate on review whether the state would have in
fact sought to impeach defendant with the prior
convictions, and whether the adverse ruling in fact
motivated defendant’s decision not to testify.

Id. (citations omitted).

¶15 We continue to believe that the Allie rule rests upon

sound policy considerations, and we decline to depart from it.

Applying the Allie rule to the facts of this case, we hold that

Smyers’ decision not to testify at trial precludes him from

10
challenging the trial court’s pretrial ruling on appeal.3

Accordingly, we reject any attempt to inject a “preliminary”

issue as contrary to the policy reasons underlying the Allie

rule.4 As this court stated in Allie and as we hold again today,

“[T]he rule in Arizona remains that a defendant must take the

stand before he can challenge an adverse pretrial ruling

allowing prior convictions to be admitted for impeachment

purposes.” Allie, 147 Ariz. at 327, 710 P.2d at 437.

III.

¶16 For the foregoing reasons, we vacate the court of

appeals’ opinion, with the exception of paragraphs two through

eight, and affirm Smyers’ convictions and sentences.

____________________________________
Ruth V. McGregor, Vice Chief Justice

3
Although Smyers is precluded from challenging the
trial court’s pretrial ruling, we reemphasize that “a trial
court should sparingly admit evidence of prior convictions when
the prior convictions are similar to the charged offense.”
State v. Bolton, 182 Ariz. 290, 303, 896 P.2d 830, 843 (1995).
If a trial court does find it appropriate to admit such a prior
conviction, we encourage the court to reduce the risk of
prejudice by sanitizing the prior conviction. “The reason is
clear—similarity to the charged offense may lead to the unfair
inference that if defendant ‘did it before he probably did so
this time.’” Id. (citation omitted).
4
The courts of this state are bound by the decisions of
this court and do not have the authority to modify or disregard
this court’s rulings. “Any other rule would lead to chaos in
our judicial system.” McKay v. Indus. Comm’n, 103 Ariz. 191,
193, 438 P.2d 757, 759 (1968).

11
CONCURRING:

__________________________________
Charles E. Jones, Chief Justice

__________________________________
Rebecca White Berch, Justice

__________________________________
Michael D. Ryan, Justice

__________________________________
Andrew D. Hurwitz, Justice

12