Fixing Morton’s Fork: Mississippi Courts and the Luce Preservation Rule
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 in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. That said, many states have decided not to apply Luce in the strictest sense. For an example, consider the recent opinion of the Court of Appeals of Mississippi in Wallace v. State, 2014 WL 5137564 (Miss.App. 2014).
In Wallace, Antonio Wallace was charged with armed robbery, kidnapping, and conspiracy to commit armed robbery. At trial, at the close of its case, the State asked the court for a determination that Wallace’s 2007 conviction for burglary would be admissible in the event that he testified at trial. In response, the court deemed the evidence concerning the conviction would be admissible if Wallace testified.
Wallace ended up not testifying and was convicted. On appeal, he later argued that “he was prevented from testifying because the threat of impeachment by the admission of his prior conviction had a ‘chilling effect’ on his right to testify.”
The Court of Appeals of Mississippi found that Wallace was barred from making this claim, but not because he failed to testify. Instead, the court cited Heidelberg v. State, 584 So.2d 393, 395 (Miss.1991), for the proposition that, “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.”
I much prefer this rule to the one announced in Luce. Imagine a defendant thinking that the trial judge made the incorrect ruling regarding the admissibility of his prior conviction(s) and yet scared to death (sometimes literally) that impeachment would destroy his case. Luce presents him with a Morton’s Fork: (1) don’t testify and lose the right to appeal; or (2) testify and likely lose the trial. Conversely, allowing preservation through a proffer offers what seems to be a much more equitable solution.
-CM