Dallas v. State

BELL, Chief Judge,

concurring and dissenting.

It is well-established that a criminal defendant’s right to testify in his or her defense is firmly rooted, as enunciated by the United States Supreme Court, see United States v. Dunnigan, 507 U.S. 87, 96, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445, 454 (1993); Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 2708-09, 97 L.Ed.2d 37, 46 (1987); Nix v. Whiteside, 475 U.S. 157, 164, 106 S.Ct. 988, 993, 89 L.Ed.2d 123, 133 (1986), in three provisions of the federal Constitution. First, the right to testify, “ ‘essential to due process of law in a fair adversary process,’ ” Rock, 483 U.S. at 51, 107 S.Ct. at 2709, 97 L.Ed.2d at 46 quoting Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 2533, n. 15, 45 L.Ed.2d 562, 572, n. 15 (1975), stems from the “Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law [to] include a right to be heard and to offer testimony.” Rock, 483 U.S. at 51, 107 S.Ct. at 2709, 97 L.Ed.2d at 46. Second, the right is present “in the Compulsory Process Clause of the *589Sixth Amendment, which grants a defendant the right to call ‘witnesses in his favor,’ a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment.” Id. at 52, 107 S.Ct. at 2709, 97 L.Ed.2d at 46, quoting Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019, 1022-1023 (1967). The right to call a witness naturally extends to the defendant’s right to testify in his or own defense. See Rock, 483 U.S. at 52, 107 S.Ct. at 2709, 97 L.Ed.2d at 46; see also Faretta, 422 U.S. at 819, 95 S.Ct. at 2533, 45 L.Ed.2d at 572. Explicating this third provision of the Constitution, the Supreme Court, in Rock, stated:

“The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U.S. 222, [ ] [91 S.Ct. 643, 28 L.Ed.2d 1] (1971), the Court stated: ‘Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.’ Id., at 225 [91 S.Ct. at 645, 28 L.Ed.2d at 4]---- ‘[The Fifth Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will’.... The choice of whether to testify in one’s own defense ... is an exercise of the constitutional privilege.’ ” Id., at 230, [91 S.Ct. at 648, 28 L.Ed.2d at 7] quoting Malloy v. Hogan, 378 U.S. 1, 8[, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659] (1964). Footnote 10 reads:
“On numerous occasions the Court has proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right. See, e.g., Nix v. Whiteside, 475 U.S. 157, 164[, 106 S.Ct. 988, 993, 89 L.Ed.2d 123, 133] (1986); id., at 186, n. 5[, 106 S.Ct. at 1004, n. 5, 89 L.Ed.2d at 147, n. 5] (BLACKMUN, J., concurring in judgment); Jones v. Barnes, 463 U.S. 745, 751[,103 S.Ct. 3308, 3312, 77 L.Ed.2d 987, 993] (1983) (defendant has the ‘ultimate authority to make certain fundamental decisions regarding the case, as to whether to ... testify in his or her own *590behalf); Brooks v. Tennessee, 406 U.S. 605, 612[, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358, 365] (1972) (‘Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right’).”

Rock, 483 U.S. at 52-53, 107 S.Ct. at 2709-10, 97 L.Ed.2d at 47.

Maryland appellate courts specifically have recognized, and applied, each provision. Burral v. State, 352 Md. 707, 730-31, 724 A.2d 65, 76 (1999); Morales v. State, 325 Md. 330, 335, 600 A.2d 851, 853 (1992); Gregory v. State, 189 Md.App. 20, 32, 983 A.2d 542, 549 (2009); particularly as to the latter point, see Burral v. State, 352 Md. at 730-31, 724 A.2d at 76-77; Morales, 325 Md. at 335, 600 A.2d at 853; Jordan v. State, 323 Md. 151, 155-56, 591 A.2d 875, 877 (1991). Moreover, with regard to the right to testify, we have been clear that, ultimately, “[t]he decision whether or not to testify is a significant one and must be made with a basic appreciation of what the choice entails.” Morales, 325 Md. at 335, 600 A.2d at 853; see also Gregory, 189 Md.App. at 32, 983 A.2d 542 (“Because the right to testify is essential to due process in a fair adversary system, it may only be waived knowingly and intelligently, pursuant to the waiver standards established for fundamental constitutional rights in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)”).

Juxtaposed against the defendant’s constitutional right to testify is the State’s right, although not a constitutional one, to impeach that defendant’s testimony and to use, for that purpose, certain prior criminal convictions. See Maryland Rule 5-6091. “This right is premised on the proposition that such *591evidence will assist the factfinder in measuring the credibility of the witness.” Jackson v. State, 340 Md. 705, 713, 668 A.2d 8, 12 (1995).

Rule 5-609 sets out a three-part test for the trial court to determine whether a prior conviction is admissible to impeach a witness. First, the prior conviction must be either for an infamous crime or for one “relevant to the witness’s credibility.” Md. Rule 5-609(a). Second, if the conviction meets the first requirement, “the proponent must establish that the conviction is less than fifteen years old.” Jackson, 340 Md. at 712, 668 A.2d at 12; see Md. Rule 5-609(b). Third, and finally, the trial court must determine whether “the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.” Md. Rule 5-609(a). Problems tend to arise, as it has here, with the balancing test. See Jackson, 340 Md. at 713, 668 A.2d at 12.

The petitioner in this case, Isaac E. Dallas, was charged with possession of marijuana, possession of cocaine, and possession of cocaine with intent to distribute. He had two prior convictions, ie., possession of cocaine with intent to distribute and distribution of cocaine, with which the State was prepared to impeach him and to which, apparently, he had referred when he was arrested for the present charges.2

*592To be sure, the use of prior convictions to impeach a witness, including the defendant, is well-settled in our jurisprudence. Nevertheless, this Court has recognized, and consistently underscored, the dangers associated with such use of prior convictions. Jackson, 340 Md. at 714, 668 A.2d at 13 (footnote omitted) (noting that both “impeachment of a witness by prior conviction” and recognition of “the danger in admitting such evidence” “has long been a part of Maryland law”). That use is particularly perilous, we have said, when the prior convictions, although not “per se inadmissible,” Jackson, 340 Md. at 714, 668 A.2d at 13, are for the same or similar charges to those for which the defendant is on trial. This Court in Ricketts v. State, 291 Md. 701, 703, 436 A.2d 906, 907-08 (1981), expressed just that concern:

“The danger in admitting prior convictions as evidence to impeach the defendant stems from the risk of prejudice. The jury may improperly infer that the defendant has a history of criminal activity and therefore is not entitled to a favorable verdict. Such evidence may detract from careful attention to the facts, despite instructions from the Court, influencing the jury to conclude that if the defendant is wrongfully found guilty no real harm is done. Where the crime for which the defendant is on trial is identical or similar to the crime for which he has been previously convicted the danger is greater, as the jury may conclude that because he did it before he most likely has done it again. The net effect of such evidence is often to discourage the defendant from taking the stand.”

Dissenting in Jackson, I made the same point:

“The appellate courts of this State have long recognized, and been sensitive to, the risk of prejudice that the admission, for impeachment purposes, of prior convictions against a defendant presents. See e.g. Ricketts v. State, 291 Md. 701, 703-4, 436 A.2d 906, 907-8 (1981); Bane v. State, 73 *593Md.App. 135, 142, 533 A.2d 309, 313 (1987), citing Burrell v. State, 42 Md.App. 130, 399 A.2d 1354 (1979). That danger is that a jury likely may infer from a prior conviction that the defendant is guilty of the crime for which he or she is presently on trial. Ricketts, 291 Md. at 703-04, 436 A.2d at 907-08; Bane, 73 Md.App. at 142-43, 533 A.2d at 313; Burrell, 42 Md.App. at 136, 399 A.2d at 1357. The risk of prejudice is increased significantly, our courts recognize, when the prior conviction is similar, or identical, to the crime on trial. See [State v.] Woodland, 337 Md. [519,] [ ] 526-27, 654 A.2d [1314,] [ ] 1317-18 [1995]; State v. Giddens, 335 Md. 205, 221, 642 A.2d 870, 878 (1994) (quoting Prout v. State, 311 Md. 348, 364, 535 A.2d 445, 453 (1988)) (‘[an] important factor to remember is that a prior conviction which is similar to the crime for which the defendant is on trial may have a tendency to suggest to the jury that if the defendant did it before he probably did it this time’); Ricketts, 291 Md. at 703, 436 A.2d at 908 (‘where the crime for which the defendant is on trial is identical to or similar to the crime for which he has been previously convicted the danger is greater, as the jury may conclude that because he did it before he most likely has done it again’); Dyce v. State, 85 Md.App. 193, 200, 582 A.2d 582, 585-86 (1990) (‘in the case before us, the crime for which appellant was already on trial is virtually identical to the crime for which he has been previously convicted. Under these circumstances, admission of the prior conviction constituted a clear abuse of discretion by the trial judge ...’); Carter v. State, 80 Md.App. 686, 694, 566 A.2d 131, 135 (1989) (the court observed that where the charged crime and the crime for which the defendant previously had been convicted were not similar, the ‘evidence had no tendency to suggest to the jury that appellant was repeating a crime he had committed in the past’); Bane, 73 Md.App. at 142, 533 A.2d at 313 (‘prejudice is especially dangerous when the earlier crime is similar to that for which the defendant is currently being tried’).”

*594340 Md. at 723-24, 668 A.2d at 17. And, logically, it follows that the impact potentially is even greater when there are more than one such prior conviction.

One of the dangers inherent in the use of the same or similar prior convictions to impeach, and the one relevant to this case, is its “potential to discourage defendants from testifying in their own behalf.” Id. at 714, 668 A.2d at 13 (footnote omitted). It was that potential that prompted the Ricketts Court to address the role of the trial judge:

“Thus, the role of the trial judge takes on added importance. It becomes his function to admit only those prior convictions which will assist the jury in assessing the credibility of the defendant. The trial judge must weigh the probative value of the convictions against the prejudice to the defendant in asserting his defense. Obviously, not all prior convictions will survive this balancing process. The problem arises when the trial judge seeks to determine which crimes do prevail and are, therefore, admissible.”

291 Md. at 703-04, 436 A.2d at 908. That also accounts for the promulgation of Md. Rule 5-609, which was enacted to “prevent a jury from convicting a defendant based on his past criminal record, or because the jury thinks the defendant is a bad person.” Jackson, 340 Md. at 715, 668 A.2d at 13.

In this case, although trial court earlier had prohibited, on the basis of its prejudicial impact, the State from introducing the statement, made by the petitioner when apprehended, in which the petitioner acknowledged the subject prior convictions,3 the trial court refused, pending the petitioner’s testimo*595ny, to rule on the petitioner’s motion asking the court not to permit the State to use his prior distribution convictions for impeachment. The court reasoned:

“THE COURT: ... there is a balancing test that has to be made____
“I have to consider the impeachable balance of the prior crime, the impeachable value of the prior crime. The relevance of the conviction, the witness’s subsequent history, the importance of the witness’ credibility to the case, and the risk of unfair prejudice.
“We really didn’t get into a couple of those elements, No. 1; and No. 2, I made the assumption as to the importance of the witness’ credibility, something that I really can’t make at this juncture.
“He hadn’t said anything.... I really don’t know what he’s going to say----
“I think the proper procedure in this case is only to make a ruling after your client testifies and before there’s any cross-examination to make the decision and to apply the balance of test in this case.
“So I’m reversing my ruling.4 I make no finding at this point as to whether or not the probative value of the prior conviction outweighs any unfair prejudice to your client.
*596* $ $
“After I hear what you have to say, then I’ll make a decision as to the impeachment value. I’ll make a decision after hearing about when these convictions occurred and what happened, and I’ll make a decision about how important your credibility is to your case, and I will then weigh the risk of any unfair prejudice considering the fact that the prior convictions, in fact, are similar to the charge in this case.”

Thus, despite being conversant with Rule 5-609 and having previously rejected the use of “any evidence of any bad acts or convictions or admissions that relate directly to the crime being charged,” because of its prejudicial impact, the trial court believed that nothing short of sworn testimony—it rejected the State’s willingness to accept a proffer—would suffice as a predicate for the ruling. Faced with the uncertainty with respect to whether his prior distribution convictions could be used to impeach his testimony, the petitioner elected once again not to testify.5

*597The petitioner’s argument is that the trial judge’s “refusal to exercise discretion, his arbitrary rejection of a proffer, and his insistence that [petitioner] must testify before the trial judge would make the ruling” prevented the petitioner from making an informed election to testify. Conceding that a trial court has discretionary powers, Kelly v. State, 392 Md. 511, 530-31, 898 A.2d 419, 430 (2006), he submits that its discretion does not trump a defendant’s constitutional rights.

The majority rejects the petitioner’s arguments. Conceding that like all defendants’, the petitioner’s, right to testify is “ ‘deeply entrenched.’ ” Dallas v. State, 413 Md. at 582, 993 A.2d at 662 (quoting Jordan, 323 Md. at 155, 591 A.2d at 876), it nevertheless denies that the right was encroached upon or impeded by the trial court’s refusal to rule. Although acknowledging that the trial court had sufficient evidence on which to rule, the majority defers to the trial court’s assessment that, “in light of the similarity between the pending charges and the prior convictions, it was necessary to await Petitioner’s testimony before deciding whether the probative value of the proposed impeachment evidence outweighed the danger of unfair prejudice to Petitioner,” id. at 587, 993 A.2d at 665, holding that the trial court did not abuse its discretion. Accepting, as an appropriate exercise of discretion, the delaying of the ruling until the petitioner testified because the trial court “could not be certain what Petitioner’s testimony would be until the court heard it,” id. at 587, 993 A.2d at 665, it concludes:

“We presume that the trial court, not unreasonably, envisioned that, had Petitioner taken the stand, he might not *598have confined his testimony (consistent with counsel’s opening statement) to a denial of an intent to distribute the drugs found in his possession; he might instead have testified that he had never before distributed illegal drugs. Had Petitioner’s testimony been consistent with defense counsel’s opening statement, then the trial court might have decided that evidence of the prior convictions carried a risk of unfair prejudice to Petitioner. Had Petitioner testified more expansively, then the court might have decided that the State should be permitted to impeach him with the prior convictions. Given the plausibility of either scenario, the court was not required to rule on the motion without first hearing Petitioner’s direct testimony.”

Id. at 587, 993 A.2d at 665-66.

The majority is wrong. In this case, the trial court did not exercise discretion. It is the trial court’s belief that “the proper procedure ... is only to make a ruling after your client testifies and before there’s any cross-examination to make the decision and to apply the balance of test in this case.” If there were any doubt that the trial court believed that actual testimony by the defendant was required before the balance could be struck, it was dissipated completely when the court rejected, emphatically, the State’s suggestion that a proffer be taken from the petitioner:

“[THE STATE:] Your Honor, I just have a suggestion ... the defense might want to proffer what he would say to the Court. Then I could give you the specific dates, and then you can make your ruling. That way the defendant knows ahead of time.
“THE COURT: Well, I understand that, but a proffer is not testimony. It’s going to depend on what he has to say as to whether or not—you know, his credibility is going to be an issue with respect to those particular crimes, and I can’t tell. You can proffer all day long, but it’s not the actual testimony. I need to hear the testimony.”

If needing to hear the testimony itself is what is required, there simply can never be a pre-testimonial ruling that would *599inform the decision to testify or remain silent. There would be no opportunity, thus no ability, for the petitioner to make an informed decision; he could only learn whether his prior convictions could be used to impeach his testimony if he testified. Such a hard and fast rule is productive of a choice that is the antithesis of the knowing and intelligent decision-making our right to testify jurisprudence contemplates.

The majority, to be sure, encourages the trial judges to accept proffers and to make rulings on the admissibility of impeachment evidence in advance of the defendant’s being called. Dallas v. State, 413 Md. at 586, 993 A.2d at 664-65. With these observations, I agree. It also recognizes the desirability of making such ruling and even suggests that there are occasions when such rulings are required. Id. at 586-87, 993 A.2d at 664-65. With this recognition and suggestion, I also agree. Indeed, I am of the opinion that this is a case in which an advance ruling not only is desirable, but is, in fact, required. No amount of encouragement and recognition changes the essential factual situation in this case, however, that the trial court did not act in accordance with the encouragement nor the preferred procedure enunciated by the majority. What’s more, what it did and said belies any conceivable notion that it believed that it could have. If I read the majority opinion correctly, it holds that the trial court did not abuse its discretion in this case and does not prohibit its so acting in the future.

The majority, despite its encouragement of different, more flexible behavior, in point of fact, has endorsed and validated what the trial court did in this case. Thus, it permits the deferral of rulings on the admissibility of proposed impeachment evidence in all cases; a trial court can always conceive that there may be a change in testimony from that suggested by the pleading and/or opening statements and proffers.

This holding by the majority is surprising amidst its concession that Maryland and other sister courts have held that trial judges “should rule on motions in limine.” I agree with the majority that “many are the times when a trial court can and, *600therefore should decide a motion in limine ... before the defendant makes the election.” Id. at 586, 993 A.2d at 665. Indeed, I believe this case presents such an occasion.

It is clear that the trial court had enough information at its disposal to conduct the balancing test and make an informed ruling. It had the opening statement of the petitioner, the express statements of the State that it intended to use the prior convictions to impeach the petitioner, the knowledge that the prior convictions were similar to, if not the same, as the charges the petitioner was currently facing, and the completed testimony of one of the officers. Whatever additional information the trial court needed could have been obtained from a proffer. Additionally, the trial court initially acknowledged, and I would agree, that in this ease the fact that the prior convictions mirrored the current drug-related charges made the introduction of such evidence before a jury highly prejudicial. “This was an uncomplicated drug case.”

A proffer is not intended to take the place of testimony. It does, however, provide the court with information with regard to the evidence the parties intend to produce on an issue. It is a tool. A trial court, aware of the proffer and concerned that the actual testimony might vary from the proffer, could, as the majority notes, “be accompanied by an express caution to the defendant that, if the defendant’s direct testimony departs from the proffer in a way that changes the probative/prejudice balance scrutiny required by Rule 5-609(a), then a final ruling on the admissibility of the impeachment evidence might well be different.” Dallas v. State, 413 Md. at 586, n. 11, 993 A.2d at 665, n. 11; see also Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 447-48 (1984) (“The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). Indeed, this is initially what the trial court stated it would do with regard to the “I’m a three-time loser” *601statement. After stating how prejudicial the admission of such evidence would be, the trial court stated:

“THE COURT: If [the petitioner] takes the stand, I mean, that’s another issue because that’s another consideration, but as to the motion in limine as to his statement, at this juncture I’m going to actually grant the motion in limine based on this set of facts, and, Mr. Macdonell, you have to understand, I’m going to grant it without hearing any evidence based on the proffers made here today with respect to this statement that he made, and I’m doing that anticipating that he is not going to take the stand. Now, if he takes the stand, I’m going to have to look at it in another light.”

The court should have done the same with regard to the prior convictions. The trial court had options available that, without cause or explanation, it simply refused to utilize. Instead, it prematurely decided to postpone its ruling. This was an abuse of discretion.

Additionally, Rule 5-609 was adopted “to discriminate between the informative use of past convictions to test credibility, and the pretextual use of past convictions where the convictions are not probative of credibility but instead merely create a negative impression of the defendant.” Jackson, 340 Md. at 716, 668 A.2d at 13. In accordance with the Rule’s purpose, the Jackson Court identified five factors to assist in the trial court’s execution of the balancing test. It is important to note that what the petitioner testifies, the “actual testimony,” is not one of them. Rather, they are: (1) the impeachment value of the prior crime; (2) the time that has elapsed since the conviction and the witness’s history subsequent to the conviction; (3) the similarity between the prior crime and the conduct at issue in the instant case; (4) the importance of the witness’s testimony; and (5) the centrality of the witness’s credibility. Id., 340 Md. at 717, 668 A.2d at 14 (citing United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976)).

*602The trial court expressed that it was unable to conduct the balancing test because it could not yet assess the “importance of the witness’ credibility.” To be sure, the court’s focus was on one of the relevant factors. The problem is, it did not properly construe or apply that factor.

The “importance of the witness’ credibility” is not dependant upon what the petitioner actually says when he or she testifies. Instead, what it implicates is how the petitioner’s taking the stand will affect the balancing scale. The trial court, therefore, was not at a disadvantage without the petitioner’s actual testimony. It could assess, from its vantage point as the presider at the trial, quite apart from what the defendant might say on the stand, the significance of the petitioner’s taking the stand.

On the issue of credibility, this Court recently stated:

“ ‘Where credibility is the central issue, the probative value of the impeachment is great, and thus weighs heavily against the danger of unfair prejudice.’ Jackson, 340 Md. at 721, 668 A.2d at 16. In the context of the present record, evidence of Lagarde’s 2002 felony conviction could have been highly probative. The State’s case hinged almost entirely on the jury believing Phillips’s testimony, which Lagarde partially corroborated. While not certain, it is at least conceivable, based on what was adduced at trial, that the jury could have been unsure of Phillips’s account, making the corroboration provided by Lagarde an important component to the State’s successful prosecution.”

King v. State, 407 Md. 682, 701-02, 967 A.2d 790, 801-02 (2009).6 The Court further articulated:

“The State’s case required the members of the jury to decide whether they believed Phillips’s narrative of *603events____ Therefore, Lagarde’s testimony was important to the State, and the impeachment value of her conviction certainly would have been probative under the circumstances.”

Id. at 703, 967 A.2d at 802.

The prejudice generated by prior convictions that are the same or similar to the charges the petitioner is facing is great and, therefore, so, too, is the risk of unfair prejudice when they are used to impeach a defendant’s credibility. In fact, this Court, in King, made clear that the risk of unfair prejudice is heightened when the defendant’s own testimony is at issue. It stated:

“If the relevant witness is the defendant, the risk of unfair prejudice to her or him is high1 because ‘the jury may improperly infer that [she or he] has a history of criminal activity and therefore is not entitled to a favorable verdict.’ Jackson, 340 Md. at 715, 668 A.2d at 13 (quoting Ricketts, 291 Md. at 703, 436 A.2d at 908). Stated otherwise, the jury may feel that ‘if the defendant is wrongfully found guilty[,] no real harm is done.’ Id. (quoting Ricketts, 291 Md. at 703, 436 A.2d at 908); see also [State v.] Westpoint, 404 Md. [455,] [ ] 479, 947 A.2d [519,] [ ] 534 (2008) (quoting same). For a defendant wishing to tell her or his story to the jury, this translates to a very real prejudice: the defendant may be forced to choose between testifying in her or his own defense with the risk of being convicted by the jury’s misuse of impeachment evidence as propensity evidence, on one hand, and not testifying and foregoing a defense, on the other. See Westpoint, 404 Md. at 479, 947 A.2d at 534; Jackson, 340 Md. at 715, 668 A.2d at 13.”

Id. at 704, 967 A.2d at 803. That is the situation existed here. The risk of that “very real prejudice,” id., was patent. The magnitude of the risk was not dependent on the substance of the petitioner’s testimony; it neither expanded nor contracted depending on what the petitioner said or did not say. The trial court’s conclusion that it needed to hear the petitioner’s testimony before it could determine the balance, therefore, *604does not follow. It simply needed to, and should have, considered the effect of the petitioner’s taking the stand.

Judge GREENE joins in the views herein expressed.

. Maryland Rule 5-609. Impeachment by evidence of conviction of crime.

"(a) Generally. 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 during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of *591admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
“(b) Time limit. Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction.
“(c) Other limitations. Evidence of a conviction otherwise admissible under section (a) of this Rule shall be excluded if:
"(1) the conviction has been reversed or vacated.
“(2) the conviction has been the subject of a pardon; or
"(3) an appeal or application for leave to appeal from the judgment of conviction is pending, or the time for noting an appeal or filing an application for leave to appeal has not expired.
“(d) Effect of plea of nolo contendere. For purposes of this Rule, 'conviction' includes a plea of nolo contendere followed by a sentence, whether or not the sentence is suspended.”

. In addition to the issue, presented by the petitioner concerning the admissibility of prior convictions for the same or similar crime to that *592being tried, for impeachment, the State challenged whether that issue was properly preserved for appellate review. I agree with the majority that it was.

. The Harford County police officers who arrested the defendant reported that, when the contraband was recovered from his person, he said: "I’m a three-time loser and I’m facing 25 years. Can't you say you just found the stuff on the ground?” Ruling on the petitioner’s oral motion in limine to exclude, or in the alternative to redact the Statement and a motion to suppress the petitioner’s prior convictions, the court stated:

"I’m not going to permit any evidence of any prior bad acts or convictions or admissions that relate directly to the crime being charged. I believe, based on my experience, that the prejudicial *595effect of that type of evidence is so vastly prejudicial that it will not outweigh any probative value that it has, and that is particularly evidenced in this case where the drugs were found on the person of the particular individual.”

Upon inquiry by the State, the trial court made clear, however, that “[i]f [the petitioner] takes the stand ... that’s another issue because that’s another consideration.... Now, if he takes the stand, I'm going to have to look at it in another light.”

. Initially, the trial court, convinced by the State’s argument, ruled that the State could use the petitioner's prior distribution convictions to impeach the petitioner's testimony, should the petitioner testify. The State had argued:

"Your Honor, there is no case out there that says it’s essentially a preclusion that the Court preclude it from allowing impeachables for the same offense.... The Court stands between the balancing process to evaluate it, but there is no prohibition and the Courts have *596allowed it. The Courts also have commented that there is a number of factors to consider, such as, whether the defendant testifies as the only witness for the defense, the centrality of his credibility to that testimony, and the presentation of the defense’s case.
"In this case, presuming, ... that the defendant is the only witness to testify for the defense ... his credibility for defense case is very central to the issue of what the jury should believe.
"In that case, the Courts are even more in favor of recognizing the use of a prior drug charge impeachable when he’s on trial for a drug case.”

. The petitioner elected not to testify notwithstanding the court's reminder, “I have already said that I do recognize there’s a high risk of unfair prejudice,” and advice that "there is a possibility that I might rule to your favor and not permit impeachable offenses.” Perhaps he remembered that the trial court’s initial ruling also came after that recognition by the court.

The majority suggests that the "Petitioner did not complain at the time that the court’s delay chilled his right to make an election.” Dallas v. State, 413 Md. at 588, 993 A.2d at 666. With all due respect, it was obvious why the petitioner sought the in limine ruling, to inform his right to testify. Indeed, when one reads the court's ruling on the in limine motion which resulted in the exclusion of the statement, it appeared that the convictions, too, had been excluded. That is why, at *597the close of the State's case, the petitioner began his inquiry, "Of course, as indicated you would not let the State use the two distributions; is that right?” When the court said it had not so ruled, the petitioner then asked that the court do so. For what purpose other than to inform the decision to testify would that motion have been made? When the motion was denied, why should he have to state the obvious, that the ruling affected his decision, and hope that the court would, on that basis, change its mind. In any event, the decision not to testify was made immediately after the failure of the court to rule, as indicated above.

. In King v. State, the discussion regarding witness credibility surrounded a victim-witness, Kevin Phillips and his fiancé who were both testifying against the defendant, Darryl King. 407 Md. 682, 686, 967 A.2d 790, 792 (2009). Though there are some factual differences between King and the case at bar, this does not dilute the strength of the tenets this Court espoused in King.