### IN THE SUPREME COURT OF IOWA

No. 09

– 1711
Filed June 3, 20 11

STATE OF IOWA , Appellee ,

vs.
JUSTIN ROBERT DERBY , Appellant

.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Plymouth County,
Edward A. Jacobson , Judge.

The defendant seeks further review of the court of appeals decision affirming his criminal convictions. DECISION OF COURT OF APPEALS
AND JUDGMENT OF DIST RICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender, Nnawuihe Ukabiala,
Studen t Legal Intern, and David Arthur Adams, Assistant State Appellate
Defender , for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, and Darin J. Raymond, County Attorney , for appellee.2

WATERMAN , Justice. The threshold question in this case is whether a defendant who declines to testify can obtain a reversal of his conviction by appealing a pretrial order in limine that would have allowed the S tate to impeach him with evidence of his prior convictions if he testified. In State v. Brown , 569 N.W.2d 113, 117

– 18 (Iowa 1997) , we held the defendant must testify in order to preserve error to challenge the use of his prior convictions as impeachment. D efendant, Justin Derby, asks us to overrule Brown in light of State v. Daly , 623 N.W.2d 799, 8 01 (Iowa 2001) (allowing testifying defendant who preemptively discloses his own convictions on direct examination to appeal pretrial in limine ruling) and cases from other jurisdictions

. We conclude there is no persuasive reason to depart
from stare decisis and decline to do so. We recognize the Brown approach left Derby a Hobs o n’s choice between remaining silent or testifying in his own defense at the price of opening the door to impeachment evidence informing the jury of his prior crimes. As we explain below, Brown is based on sound reasons and remains the rule followed by a majority of states and the federal courts under the
unanimous decision in Luce v. United States , 469 U.S. 38, 105 S. Ct.
46 0, 83 L. Ed. 2d 443 (1984 ). Accordingly, we affirm the decision of the court of appeals and the district court ’s judgment

. I. Background Facts and Proceedings. Derby was charged by trial information with third

- degree burglary, five counts of forgery, and escape from custody. The trial information alleged Derby was a habitual offender and re ferenced two previous felonies. Derby pleaded not guilty to all charges, and his case proceeded to a jury trial. On the morning of trial, Derby presented the district court
with an oral motion in limine seeking to exclude the admission of Derby’s3 prior convictions. Derby h ad previously been convicted of theft and burglary. The district court partially sustained Derby’s motion and prevented the State from using Derby’s prior conv ictions in its case in chief. The district court overruled Derby’s motion in limine “to the extent
that it s[ought] to bullet

- proof .

. . the defendant from being impeached [with his pr ior felony convictions].” The district court then stated:
Obviousl y, I don’t know what answers the defendant might give to what questions he might be asked. But at this point in time, based upon anticipated testimony from him, if he chooses to testify, his prior convictions, together with the curative instruction, is th e way the court will proceed. Derby sought clarification that the district court was only permitting the State to potentially impeach Derby with his prior theft and burglary
convictions referenced in the trial information and not Derby’s entire
criminal record. The district court responded , “O bviously impeachment testimony .

. . wouldn’t be limited to what’s in the trial information.

. . . It’s pretty hard to rule on an objection when you don’t know the question

. . . .” After this colloquy, Derby elec ted not to testify. At the trial’s conclusion, Derby stated he would have testi fied if the district court had ruled favorably on his motion in limine

. Derby was convicted by jury of
thi rd

- degree burglary , five counts of forgery, and escape from custody

. Derby stipulated to be ing a habitual offender. The district court
sentenced De rby to seven concurrent fifteen

- year sen tences, each subject
to a three

- year mandatory minimum. Derby was also ordered to pay
restitution. Derby filed a notice of appeal , asserting the district court committed reversible error in overruling his motion in limine. We transferred the case to the court of appeals. The court of appeals, citing4

Brown , 569 N.W.2d at 117

– 18, held Derby failed to preserve his claim
because he ele cted not to testify. We granted further review to examine
Brown ’s viability in light of subsequent decisions.
II. Preservation of Error.
I owa Rule of Evidence 5.609 governs the admissibility of prior convictions for impeachment purposes. Derby con cedes he has not preserved error under the standard articulated in Brown

. Brown holds
that , if a defendant does not testify , t he defendant does not preserve error to appeal the district court’s in limine ruling with respect to r ule
5.609 issues. Derby in a frontal attack asks us to overturn Brown

. Derby argues this court’s decision in Daly , 623 N.W.2d at 801 , and
decisions of other jurisdictions, undermine our reasoning in Brown and
warrant its demise. We begin by examining Brown

. A. State v. Brown. In Brown , the defendant filed a motion
in limine to prevent the State from using his criminal record to impeach his testimony. Brown , 569 N.W.2d at 117. The district court denied his motion, and in response , Brown elected not to testify. Id. Brown wa s convicted, and he appealed the district court’s in limine ruling. Id. at
11 5

. Brown insisted he should not be required to testify to preserve his challenge to the district court’s r ule 5.609 in limine ruling

. Id. at 118. Brown argued such a n error

- preservation requirement forces the
defendant in to a n untenable predicament : either testify with fear the
State will use arguably improper prior conviction evidence to impeach
but preserve error on the evidence’s admissibility , or forgo the right to
testi fy and ability to appeal the district court’s in limine ruling while
avoid ing arguably improper use of prior conviction evidence. Id. We initially observed, “A clear rule .

. . prevents Brown from challenging the pretrial ruling in the abstract. Brown was required to5 testify at trial and face the challenged evidence before complaining of it.”
Id. We cited to State v. Davis , 328 N.W.2d 301 , 306 (Iowa 1982), as precedent for this rule

. Id. In Davis , we held “a defendant must take the stand and testify and the prosecutor must use the statement to impeach
before a defendant can raise a constitutional claim .

. . that his prior statement could not be used for impeachment.” Davis , 328 N.W.2d at
306. We articulated three reasons for our holding: (1) to hold otherwise permits the accused to plant reversible error merely by not testifying, (2)
the defendant’s harm

— the admission of the evidence

— is entirely speculative absent the defendant’s testimony, and (3) without the defendant’s testimony there is not an adequa te record to perform a
harmless

- error analysis. See i d. at 306

– 07. In Brown , we reitera ted these three reasons as grounds for our result. Brown , 569 N.W.2d at
118. In Brown , w e also cited to Luce v. United States , in which a unanimous Supreme Court held a defendant must testify in order to preserve error to challenge the district court’s in limine ruling permitting the government to use prior conviction evidence for impeachment
purposes. Luce , 469 U.S. at 39

– 40 , 105 S. Ct. at 462

– 63 , 8 3 L. Ed. 2d at
446.
Like Davis , Brown and Luce ’s holdings are dictated by the practical realities of appellate review. First, we only reverse a trial court’s evidentiary ruling if “a substantial right of the party is affected.” Iowa R. Evid. 5.103( a ). “ 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 presump tively kept the defendant from testifying.” Luce , 469 U.S. at 42, 105 S. Ct. at 463

– 64, 83 L. Ed. 2d at 448 . In the event the trial court did error, requiring the defendant to testify allows the appellate court to6 accurately determine prejudice based upo n a complete record. Absent
such a rule , the defe ndant can attempt to “plant” reversible error simply by not testifying anytime the trial court declines the defendant’s r ule 5.609( a ) motion in limine. Id. Luce and Brown avoid automatic retrials
based on erroneous in limine rulings.
Second , without the defendant’s testimony, his harm is entirely speculative because the defendant’s prior convictions are never admitted
in trial

. Id. at 41, 105 S. Ct. at 463, 83 L. Ed. 2d at 447 ; Brown , 569 N.W.2d at 118

. The reviewing court is left to guess as to how the trial would have developed. Maybe the State would impeach the defendant with his prior convictions, or potentially the trial court could reverse its in limine ruling due to trial developments, or maybe t he State might find it unnecessary to use the convictions to impeach. When the defendant does not testify he effectively freezes review of the district court’s
in limine ruling to the limited information know n pretrial. Brown , 569 N.W.2d at 118 . Moreover, a defendant may elect to not testify for any number of tactical reasons, and an appellate court cannot determine if the defendant’s decision is predicated on the trial court’s prior conviction ruling or some other strategic decision. Id. Whe n the defendant does not testify , the entire dispute is theoretical and speculative

. Finally , the prior conviction evidentiary analysis articulated in Iowa Rule of Evidence 5.609( a ) and its federal rule counterpart asks the court to weigh the probative value of the defendant ’s prior convictions against its prejudicial effect. See Iowa R. Evid. 5.609( a )(1) (“[E]vidence that an
accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this e vidence outweighs its prejudicial effect to the accused [

. ] ”). The court is handicapped in performing this fact

- specific balancing when it does not have a complete7 trial record with the defendant’s testimony and impeachment. Luce , 469 U.S. at 41, 105 S. Ct. at 463 , 83 L. Ed. 2d at 447

. When the defendant does not testify, the reviewing court , for example, will have difficulty identifying how persuasive or important the defendant’s testimony is, the credibility of the defendant, or the need to use the def endant’s prior
conviction s for impeachment purposes

— all circumstances that may influence the probative value or prejudi cial effect of prior conviction
evidence

. Brown and Luce recognize the quandary its error

- preservation
rules create for the defendant. In the event the trial court makes an erroneous evidentiary ruling with respect to prior conv iction evidence,
Brown and Luce may force a defendant to be confronted by improper and prejudicial p rior conviction e vidence at trial. This harm, however, is mitigated to a great extent by the fact the testifying defendant can challenge the propriety of the district court’s admission of the prior
conviction evidence and , if appropriate, receive a new trial on appeal. Moreover, Brown and Luce suggest its error

- preservation rule is necessary to ensure effective review of in limine rulings concerning the impeachment use of prior convictions.
The record in this appeal highlights the wisd om of Brown

. First, this potentially is the type of case in which strategic defense counsel could attempt to “plant” reversible error. The State presented strong evidence of Derby’s guilt. While the victim was out of town, witnesses saw Derby on the vic tim ’ s front porch , as if Derby was leaving the
victim’s home . Subsequently , Derby cashed five checks belonging to the
victim . The cashiers who accepted the checks identified Derby as the
person cas hing the m
. We are left only to speculate how Derby’s trial testimony would have rebutted the State’s witnesses. Brown ensures8 this court can engage in a meaningful harmle ss

- error analysis. Second,
the scant record in hibits appellate review of the r ule 5.609( a ) issue. The
record does not clearly identify D erby’s prior convictions or how many he had. The record suggests De rby at least had either a forgery or burglary conviction, and if burglary, it is unclear what type of burglary, which could determine whether admissibility is subject to balancing under r ule 5.609( a )(1) or is mandatory under r ule 5.609( a )(2) . The r ule 5.609( a ) balancing re quirement does not always apply, and we cannot discern
from the record if Derby’s convictions were subject to balancing. See State v. Harrington , 800 N.W.2d 46 , 49 (Iow a 2011). I f the convictions

were to be balanced , then we cannot perform a scrupulous review of the
district court’s determination without a record clearly articulating Derby’s prior conviction s and the substance and persuasiveness of his
direct testimony and the effect of the cross

- examination and impeachment

. This discussion reconfirms the merits of the Brown approach.
B. Daly’s E ffect on Brown. Derby argues Daly , decided four years after Brown , undercuts Brown ’s reasoning and warrants overturning Bro wn
. T o understand our holding in Daly , and its interplay
with Brown , a brief discussion of the line of cases leading to Daly is
useful. Before 1975, this court held a defendant only preserved error to challenge a trial court’s in limine ruling if the defendant testified at trial and an objection was properly made to the evidence during the course of
the trial. See , e.g. , State v. Langley , 265 N .W.2d 718, 720 (Iowa 1978) (“Ordinarily the granting or rejecting of a motion in limine is not reversible error; the error comes, if at all, when the matter is presented at
trial and the evidence is then admitted or refused

. . . . ”); State v. Garret t , 183 N.W.2d 652, 654 (Iowa 1971) (noting in limine rulings are not9 subject to reversible error, only subsequent admission or d enial of evidence). This error

- preservation rule reflected the belief that an
in limine ruling was merely a pretrial ruling that sought to alert the court to potential evidentiary issues at trial and not a final ruling on the admissibility of evidence. See Twyford v. Weber , 220 N.W.2d 919, 922

– 24 (Iowa 1974)

. In 1975, we decided State v. Miller , 2 29 N.W.2d 762 (Iowa 1975)

. In Miller , the trial court made a definitive ruling on a motion in limi ne that permitted the State to use the defendant’s prior convictions for impeachment purposes. Miller , 229 N.W.2d at 768. The defendant subsequently electe d to testify, and he disclosed his prior convictions on
direct examination to lessen the blow of the State’s cross

- examination.
Id. The defendant was convicted, and he appealed the district court’s
in limine ruling. Id. at 766

– 68. The State claimed the defendant failed to preserve error because the defendant made no objections at trial to the admissibility of the prior convictions. We reasoned that requiring the defendant to object at trial to the admissibility of prior convictions , after
the district court conclusively ruled on this issue pretrial, would be “a useless gesture.” Id. at 768. We then stated that , where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial , there is no reason to voice objection at such time during trial

. In such a situation, the decision on the motion has the effect of a ruling.
Id. (e mphasis added). Miller merely h e ld that , if the district court makes

a definite ruling as to the admissibility of evidence, the party, to preserve error, need not renew that objection when the evidence is admitted. Id.
Miller does not purport to address the situation in which the evidence in10 question is never actually admitted into trial

— the situation presented in
this case and in Brown

. Miller has been reaffirmed on several occasions albeit in a slightly different light. In Miller , the primary issue was whether the defendant
had to re object to the admission of his prior convictions at trial. In State

v. Jones , as in Miller , the defendant disclosed his prior convictions on direct examination in response to the trial court’s adverse in limine ruling

. State v. Jones , 271 N.W.2d 761, 765 (Iowa 1978) . The State, however, argued the defendant waived his claim of error by affirmatively admitting his prior convictions. Id. We rejected the S tate’s arguments
and held the defendant preserved error. Id. at 766. We reasoned that , when the district court makes a conclusive ruling as to the admissibility of prior convictions , the defendant need not “abandon all trial tactics to preserve error.” Id. This decision was reaffirmed in State v. Griffin , 323 N.W.2d 198, 202 (Iowa 1982).
It had thus been well established in this state that , if a trial court conclusively ruled in limine to admit a de fendant’s prior convictions , t he
defendant need not re object to the admission of his convict ions at trial t o preserve error. Rather , the def endant could affirmatively introduce his
convictions at t rial and still preserve error. In 2000, t he Supreme Court , pursuant to its federal court advisory powers , held in a 5

– 4 decision that a defendant waives his right to appeal a trial court’s in limine Federal
R ul e 609(a) ruling when the defendant affirmatively discloses his prior
conviction on direct examination. Ohler v. United States , 529 U.S. 753, 760, 120 S. Ct. 1851 , 1855, 146 L. Ed. 2d 826 , 832 ( 2000). While Oh l er was not binding on this court, in light of Ohler , we reconsidered Miller and its progeny in Daly

. Daly , 623 N.W.2d at 801.11

In Daly , we rejected Ohler and adhered to our precedent in Miller
and Jones , which held a defendant may appeal the district cour t’s
in limin e ruling , even if the defendant affirmatively discloses his prior
convictions on direct examination

. Id. Thus, Daly and the cases before it govern error preservation when the trial court permits the State to impeach the defendant with prior c onvictions and the defendant then
testifies at trial. In those circumstances , the defendant preserves error to appeal the trial court’s in limine ruling , assuming the defendant confronts the prior conviction evidence at t rial, on either direct or cross

ex amination. Against this backdrop, we are not persuaded by Derby’s contention Daly “call[s] the continuing validity of Brown into question

. ” Daly and
Brown involve two different factual situations. In Daly , the defendant
testifies and confronts his prior conviction evidence

. B y contrast , in
Brown , the defendant does not testify , and his evidence of prior
convictions is never admitted at trial. Th ese difference s lead to different
outcomes for error preservation

. Our reasoning in Brown is based upon the practical appellate difficulties of reviewing the trial court’s r ule 5.609 in limine ruling when the defendant does not testify and never confronts
the prior

- conviction evidence. The challenges the incomplete record pose for appellate review are obviated when the defendant testifies and the prior convictions are put in play. See Ohler , 529 U.S. at 761, 120 S. Ct. at 1856, 146 L. Ed. 2d at 833 (Souter, J., dissenting) (noting Ohler raises none of the “practical difficulties” implicated in Luce ); Warren v. State , 124 P.3d 522, 527 (Nev. 2005) (noting defendant’s affirmative testimony

on prior convic tions raises different issue s th a n defendant’s decision not to testify) . Moreover, Da ly is not new law in this state. Daly was a mere12 affirmation of settled law that predated Brown

. Daly is not inconsistent
with Brown , nor does Daly ’s reasoning necessitate we overturn Brown

. C. Case Law f rom O ther Jurisdictions. Derby also argues that cases from other jurisdictions call into question Brown ’s continuing vitality. Notably, however, Derby has not cite d case s of first impression
decided after Brown . Nonetheless, we will review decisions reached in other jurisdictions. T he preservation

- of

- error issue present here has
been considered in nearly every jurisdiction in this country. Courts have
reach ed one of three conclusions.
A strong majority of courts have reached the same conclusion we reached in Brown and the United States Supreme Court reached in Luce
that , for practical reasons of appellate review , the defendant must testify and be confronted with his prior convictions before complaining of the district court’s evidentiary ruling. 1 As a general matter, all courts adopting the Brown and Luce results appear to agree that , without the defendant’s testimony , appellate review of the district court’s in limine ruling is impractical

. The states that have declined to adopt Luce are split in their
resolution of this issue. Some states seek to alleviate the appellate
review concerns by requiring the defendant to make an offer of proof.

1 State v. Wickham , 796 P.2d 1354, 1358 (Alaska 1990); State v. Allie , 710 P.2d 430, 437 (Ariz. 1985); Smith v. State , 778 S.W.2d 947, 950 (Ark. 1989); People v. Collins , 722 P.2d 173, 176

– 78 (Cal. 1986); People v. Brewer , 720 P.2d 596, 597 (Colo. App. 1985); State v. Harrell , 506 A.2d 1041, 1046 (Conn. 1986); Fennell v. State , 691 A.2d 624, 625

– 26 (Del. 1997); State v. Garza , 704 P.2d 944, 949 (Idaho Ct. App.1985); People v. Whitehead , 508 N.E.2d 687, 694 (Ill. 1987); People v. Finley , 431 N.W.2d 19, 25 (Mich. 1988); State v. Hunt , 475 S.E.2d 722, 727 (N.C. Ct. App. 1996); State v. Silvia , 898 A.2d 707, 720 (R.I. 2006); State v. Glenn , 330 S.E.2d 285, 286 (S.C. 1985); State v. Means , 363 N.W.2d 565, 569 (S.D. 1985); Benavides v. State , 763 S.W.2d 587, 590 (Tex. Ct. App. 1988); State v. Gentry , 747 P.2d 1032, 1036 (Utah 1987); Reed v. Commonwealth , 366 S.E.2d 274, 277 (Va. Ct. App. 1988); State v. Brown , 78 2 P.2d 1013, 1022

– 25 (Wash. 1989); Vaupel v. State , 708 P.2d 1248, 1249

– 50 (Wyo. 1985).13

See Saucier v. State , 562 So. 2d 1238 , 1245 (Miss. 1990) , overruled on other grounds by White v. State , 785 So. 2d 1059, 1061 (Miss. 2001) ; Warren , 124 P.3d at 527

– 28; State v. McClure , 692 P.2d 579 , 583

– 84 (Or. 1984). The remaining courts declining to adopt Luce permit a defendant to appeal the trial court’s prior conviction in limine ruling per se
. Commonwealth v. Crouse , 855 N.E.2d 391, 397 (Mass. 2006); State v.
Whitehead , 517 A.2d 373, 376

– 77 (N.J. 1986); People v. Moore , 548 N.Y.S.2d 344, 346 (N.Y. App. Div. 1989); Commonwealth v. Richardson , 500 A.2d 1200 , 1203 (Pa. Super. Ct. 1985); State v. Galmore , 994 S.W.2d 120, 123

– 24 (Tenn. 1999).
Prior to Luce , most federal appellate courts adhered to the per se approach. See Whitehead , 517 A.2d at 374 ( collecti ng circuit court cases)

. Derby asserts we should adopt the per se approach and place no requirements on the defendant ’s right to appeal the district court’s in
limin e ruling under r ule 5.609( a ). Alternatively, D erby asks us to adopt
the offer

- of

- proof method. Derby, however, never made an offer of proof , nor does the record contain any indication of his expected testimony. Without commenting on the efficacy of the offer

- of

- proof method, we
deem that issue not before us
. Of the s tates rejecting Luce , t he New Jersey Supreme Court has most thoroughly articulate d its r easoning

. Id. at 374

– 76

. The Whitehead
court found the appellate review concerns articulated in Luce to be
overstated , and thus , it concluded there was no need to force the
de fendant to testify and face potentially improper prior conviction impeachment to preserve error. Id. at 376. First, the court noted that
trial cou rts routinely perform the prior

- conviction evidentiary

- balancing
test before trial, without know ing the defendant’s specific testimony. Id. Second, with respect to harmless

- error conce rns, the court noted that14

New Jersey law had long permitted defendants to appeal prior conviction in limine rulings without testifying, and the court did not believe its

error

- preservation rule imposed an undue burden on its judicial system.
Id . The cour t concluded, “In sum, our present practice is working well, and we are disinclined to change it.” Id.
D. Brown’s Precedential Value. Derby asks us to overrule
Brown

. We reiterate that we “do not overturn our precedents lightly and will not do so absent a showing the prior decision was clearly erroneous.” McElroy v. State , 703 N.W.2d 385, 394 (Iowa 2005) (collecting cases on
stare decisis )

. Stare decisis does not prevent the court from correcting past judicial announce ments that were plainly wrong. Id. at 395 ; s ee also State v. Harrington , 800 N.W.2d at 49 (overruling in part State v.
Axiotis , 569 N.W.2d 813, 816 (Iowa 1997)).
W e conclude the reasons Derby advances for overruling Brown do
not justify a departure from stare decisis. Brown was decided in 1997
and affirmed Davis , which was decided in 1982. It has long been settled law that a criminal defendant must testify and confront the impeachment evidence before seeking an appellate determ ination of admissibi lity. Derby cites no Iowa case that holds otherwise. In Brown , we were asked
to de cide the issue before us today. We articulated reasons for our decision, and a majority of courts have also deemed those reasons persuasive. By the time Brown was decided, several jurisdictions had adopted the offer

- of

- proof requirement and several others had repudiated
Brown ’s error

- preservation rule in its entirety. Brown considered and rejected the same arguments Derby presents in his appeal. Accordingly, we apply Brown to hold Derby has failed to preserve error on his claim that the district court abused its discretion in denying his motion in
limin e under r ule 5.609( a ).15

E. Other Claims. Derby also asserts the district court’s evidentiary ruling denied Derby his constitutional right to testify and his constitutional right to a fair trial. “ ‘Issues not raised before the district court, including constitutional issues, cannot be raised for the first time
on appe al.’ ” State v. Mitchell , 757 N.W.2d 431, 435 (Iowa 2008) (quoting State v. McCright , 569 N.W.2d 605, 607 (Iowa 1997) ) . Derby did not file a
motion before or during trial raising his constitutional issues

. Nor did Derby raise his constitutional issues i n his motion in limine. Derby simply alluded to these claims in one sentence in a motion for new trial. This fails to preserve error. State v. Wells , 629 N.W.2d 346, 356 (Iowa 2001).
III. Disposition. Derby has not presented us with any developments since our
decision in Brown that call into question Brown ’s vitality , nor have we found any. Derby has not show n Brown was the product of clearly erroneous decision making. Derby also failed to preserve hi s constitutional claims

. Accordingly , we affirm his convictions, sentences, and judgment.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRIC T COURT AFFIRMED. All justices concur except Mans field, J., who takes no part.