IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,

Appellee,

v.

ANTHONY DURAN,

Appellant.

No. CR-13-0087-PR

Filed November 7, 2013

Appeal from the Superior Court in Cochise County

The Honorable Wallace R. Hoggatt, Judge

No. CR-201100113

AFFIRMED

Opinion of the Court of Appeals, Division Two

231 Ariz. 261, 293 P.3d 537 (2013)

VACATED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief

Counsel, Criminal Appeals, Kathryn A. Damstra (argued), Assistant

Attorney General, Tucson, for State of Arizona

The Law Office of Robert J. Trebilcock, Robert J. Trebilcock (argued),

Phoenix, for Anthony Duran

JUSTICE PELANDER authored the opinion of the Court, in which CHIEF

JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE BRUTINEL,

and JUSTICE TIMMER joined

JUSTICE PELANDER, opinion of the Court:

¶1 After rejecting a proposed plea agreement, the trial court

erroneously ruled that the State could impeach defendant Anthony Duran

with statements he made in connection with his change of plea if he

testified inconsistently with them at trial. Duran objected to this ruling
STATE v. DURAN

Opinion of the Court

2

and asserts it caused him to choose not to testify. We hold that Duran

cannot raise the trial court’s error on appeal because a defendant must

testify to preserve a challenge to a ruling permitting the use of evidence

for impeachment.

I.

¶2 The State charged Duran with four felonies relating to an assault.

After agreeing to plead guilty to a lesser charge, Duran admitted at a

change-of-plea hearing that he was an accomplice. But when he was

interviewed for a presentence report, he denied any involvement. The

trial court later rejected the plea agreement, and Duran was tried before a

jury.

¶3 Duran moved in limine to prevent the State from using at trial

statements he made during the change-of-plea hearing. The trial court

ruled that the statements would be admissible to impeach Duran if he

testified inconsistently with them. Duran did not testify at trial, and the

jury found him guilty on all counts.

¶4 Duran moved for a new trial, arguing in part that the trial court

erred in ruling that the State could use his change-of-plea statements to

impeach him. The court acknowledged that its pretrial ruling directly

conflicted with Arizona Rule of Criminal Procedure 17.4(f), which

expressly bars the use at trial of statements made at plea proceedings

when a plea agreement is rejected or withdrawn.

1 The court denied the

motion, however, concluding that because Duran did not testify, it could

not determine whether he was “prejudiced or legally harmed” by the

error.

¶5 The court of appeals affirmed. State v. Duran, 231 Ariz. 261, 265

¶ 18, 293 P.3d 537, 541 (App. 2013). The court reasoned that by not

testifying at trial, Duran did “not preserve[] for [appellate] review the

pretrial ruling permitting the state to use his change-of-plea statements for

1 We refer here to the version of Rule 17.4(f) in effect when Duran

was tried in 2011. Effective January 1, 2012, that rule was amended to

incorporate by reference Rule 410, Ariz. R. Evid., which generally

prohibits use of plea-related statements at later proceedings. See Ariz. R.

Evid. 410(a)(3).
STATE v. DURAN

Opinion of the Court

3

impeachment.” Id. at 263 ¶ 11, 293 P.3d at 539. In so holding, the court

extended the rule of State v. Allie, 147 Ariz. 320, 327, 710 P.2d 430, 437

(1985), which involved impeachment with prior convictions, to rulings

permitting impeachment with plea-related statements. Duran, 231 Ariz. at

263 ¶ 11, 293 P.3d at 539. Although noting that Duran had not preserved

the issue, id., the court stated that harmless-error review applied, but

concluded that Duran’s failure to testify “render[ed] this inquiry ‘wholly

speculative.’” Id. at ¶¶ 14–15 (quoting Luce v. United States, 469 U.S. 38, 41

(1984)).

¶6 We granted review because this case presents a recurring legal

issue of statewide importance. We have jurisdiction under Article 6,

Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶7 Generally, a defendant preserves for appeal any issues raised in a

motion in limine and ruled upon without the need for further objection at

trial. State v. Anthony, 218 Ariz. 439, 446 ¶ 38, 189 P.3d 366, 373 (2008); see

also Ariz. R. Evid. 103(b). Fifty years ago, however, we recognized an

exception to that rule, requiring a defendant to testify in order to preserve

for appeal a trial court’s ruling permitting the impeachment use of priorconviction evidence. State v. Barker, 94 Ariz. 383, 386, 385 P.2d 516, 518

(1963). We concluded that, when the defendant does not take the stand, a

reviewing court has “nothing . . . on which to predicate a reversal” of the

challenged ruling because whether the state would have used the prior

conviction for impeachment and whether the trial court would have

adhered to its earlier ruling were speculative. Id.

¶8 In the decades since Barker, we have repeatedly reaffirmed its

“announced rule,” id., requiring a defendant to testify in order to appeal

from a pretrial ruling allowing the use of prior convictions for

impeachment. See, e.g., State v. Smyers, 207 Ariz. 314, 318 ¶ 15, 86 P.3d 370,

374 (2004); Allie, 147 Ariz. at 327, 710 P.2d at 437. In Allie, we noted our

agreement with Luce, in which the United States Supreme Court held that

“to raise and preserve for review the claim of improper impeachment with

a prior conviction, a defendant must testify,” Luce, 469 U.S. at 43.

¶9 Significantly, citing the policy justifications discussed in Barker and

our post-Luce cases, we have extended the testimony requirement to
STATE v. DURAN

Opinion of the Court

4

defendants seeking to challenge the impeachment use of evidence other

than prior convictions. See State v. Gonzales, 181 Ariz. 502, 512, 892 P.2d

838, 848 (1995) (holding that, “by choosing not to testify, Gonzales waived

his right to claim that the trial court erroneously ruled involuntary

statements admissible to impeach”); State v. Conner, 163 Ariz. 97, 103, 786

P.2d 948, 954 (1990) (holding that, because the defendant did not testify,

“he may not attack the pretrial ruling conditionally admitting his

statements [obtained in violation of Miranda] for impeachment in the

event he did testify”).

¶10 Duran argues that Barker and its progeny should not control here

because a trial court’s erroneous ruling allowing impeachment use of a

defendant’s change-of-plea statements implicates “different interests and

protections than those involving mere impeachment with prior

convictions.” The trial court’s erroneous pretrial ruling, Duran contends,

“impermissibly infringed on his decision” whether to relinquish his Fifth

Amendment right to remain silent and to instead testify at trial. Relying

on State v. Vargas, 127 Ariz. 59, 618 P.2d 229 (1980), Duran further asserts

that the trial court’s error cannot be deemed harmless. We are not

persuaded.

¶11 In Vargas, we reversed the defendant’s convictions based on the

trial court’s error “in permitting the state to impeach defendant’s

testimony by means of [a] document he signed during plea negotiations.”

Id. at 61, 618 P.2d at 231. There, unlike in this case, the defendant testified

at trial and was repeatedly impeached with the inadmissible plea-related

evidence, on which the state also relied in its closing argument. Id. at 60,

618 P.2d at 230. On that record, we could not find the error harmless. Id.

at 61, 618 P.2d at 231.

¶12 Vargas does not address the issue before us—whether a defendant

must testify to preserve the issue for appeal—but instead merely suggests

that if a defendant does testify, the incorrect admission at trial of plearelated statements will be reviewed for harmless error. Because Vargas

testified, we were able to undertake the fact-specific inquiry whether the

admission of the plea-related statements was harmless. Duran, in

contrast, did not testify, and assessing the impact of the trial court’s error

would be inherently speculative, as we would have to assume that Duran

would have testified absent the error, that the trial court would have

adhered to its initial ruling, and that the State would in fact have
STATE v. DURAN

Opinion of the Court

5

impeached him with his plea-related statements. See Conner, 163 Ariz. at

102, 786 P.2d at 953; Barker, 94 Ariz. at 386, 385 P.2d at 518. Reversible

error cannot rest on such conjecture, and under these circumstances the

harmless-error analysis employed in Vargas is inapplicable.

¶13 Duran, however, contends his claim of reversible error is not

speculative and therefore is reviewable because the State clearly intended

to use his change-of-plea statements if he testified. He asks us to infer that

he would have testified but for the trial court’s erroneous pretrial ruling.

That is so, Duran argues, because the State’s evidence of his guilt was

“relatively weak,” and he “had no prior felony record,” no “prior record

of dishonesty,” and (besides his change-of-plea statements) made no

“other incriminating statements to law enforcement or others.”

¶14 But as the Court observed in Luce, “an accused’s decision whether

to testify ‘seldom turns on the resolution of one factor,’” and therefore “a

reviewing court cannot assume that the adverse ruling motivated a

defendant’s decision not to testify.” 469 U.S. at 42 (quoting New Jersey v.

Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting)). To avoid

speculation on whether a defendant would have testified and how the

trial would have otherwise played out, this Court has long imposed the

testimony requirement. See Conner, 163 Ariz. at 102, 786 P.2d at 953

(noting that “without defendant’s testimony, the court is left to speculate

on review whether the state would have in fact sought to impeach

defendant . . . and whether the adverse ruling in fact motivated

defendant’s decision not to testify”).

¶15 Duran further argues that Luce and Allie are inapplicable because,

unlike in those cases, the trial court’s erroneous ruling here hinged on a

pure question of law, was directly governed by applicable rules, and did

not involve any “balancing of interests” under Arizona Rule of Evidence

403 or otherwise. Some courts have found similar points well taken. See

Vermont v. Amidon, 967 A.2d 1126, 1129–32 (Vt. 2008) (distinguishing Luce

and holding that the defendant’s failure to testify did not preclude

appellate review of an erroneous trial court ruling permitting the use of

plea-related statements for impeachment, when “the potential importance

of the in-limine ruling to defendant’s decision not to testify [was]

manifest”); cf. Luce, 469 U.S. at 44 (Brennan, J., concurring) (suggesting

that the testimony requirement might not apply when “the determinative

question turns on legal and not factual considerations”); United States v.
STATE v. DURAN

Opinion of the Court

6

Velez, 354 F.3d 190, 194 n.4 (2d Cir. 2004) (noting that, “even if defendant

were challenging the District Court’s in limine ruling,” Luce would not

control because that ruling did “not depend on the fact-specific balancing

of prejudicial effect and probative value”). But we do not find these

distinctions significant enough to deviate from the testimony requirement,

particularly in light of our decision in Gonzales.

¶16 In Gonzales, we applied the testimony requirement even though the

appeal raised a purely legal issue—whether the trial court erred in

allowing the use of the defendant’s allegedly involuntary statements for

impeachment. 181 Ariz. at 512, 892 P.2d at 848. Unlike in the priorconviction context, the trial court’s ruling in Gonzales involved no

discretionary determinations or balancing of competing interests, as use of

involuntary statements for impeachment is strictly prohibited. See Mincey

v. Arizona, 437 U.S. 385, 398 (1978). Nevertheless, we concluded that “[t]he

same policy considerations that led to the result in Conner are present

here.” Gonzales, 181 Ariz. at 512, 892 P.2d at 848. Duran has not

explained, nor can we discern, why the rationale and result in Gonzales

should not control in this case as well.

¶17 Disregarding Gonzales, Duran instead relies on our pre-Luce

decision in State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975). In that case,

the defendant challenged on appeal a pretrial ruling allowing the state to

question him about his “subsequent bad acts,” which we found irrelevant.

Id. at 344–45, 541 P.2d at 1146–47. The state argued in response that

Tuell’s failure to testify at trial rendered the issue “moot on appeal.” Id.

In rejecting that argument, we noted that the record reflected that the trial

court’s ruling clearly had a “chilling” effect on the defendant’s decision to

not testify and thus “effectively precluded [him] from exercising his

constitutional right to testify” in his defense. Id. at 345, 541 P.2d at 1147.

¶18 In Tuell, neither the parties nor this Court cited Barker or addressed

whether defendants generally must testify in order to preserve for appeal

a pretrial ruling allowing the use of impeachment evidence. Id. In the

years since, we have neither affirmed nor expressly overruled Tuell; but

our subsequent case law effectively strips that decision of precedential

value. Tuell is incompatible with Gonzales’s holding requiring a defendant

to testify in order to preserve an objection to a trial court’s pretrial ruling

allowing impeachment with involuntarily-obtained statements. We
STATE v. DURAN

Opinion of the Court

7

therefore disavow Tuell insofar as it is inconsistent with our post-Luce

cases, including Gonzales and our opinion today.

¶19 We take this opportunity, however, to clarify the legal basis for our

conclusion here. Despite language in some of our prior cases, the trial

court’s error was not “waived” or forfeited by the defendant’s failure to

testify. See Gonzales, 181 Ariz. at 512, 892 P.2d at 848. Nor do we view the

injury to Duran from the trial court’s error as merely “hypothetical.” See

Conner, 163 Ariz. at 103, 786 P.2d at 954. Rather, as a matter of policy,

when a trial court rules certain evidence admissible for impeachment

purposes if the defendant testifies, a defendant must both object and

testify to preserve the issue for appellate review. We will not assume that

the defendant would have testified but for the adverse ruling, or that the

trial court would have adhered to its initial ruling had the defendant

taken the stand. (Indeed, in view of its subsequent, ready

acknowledgment of error, the trial court here might well have corrected

its in-limine ruling had the impeachment issue been raised again during

trial.)

¶20 Requiring defendants to testify, as the Supreme Court reasoned in

Luce, allows the reviewing court to assess the effect of any erroneous

impeachment in light of the record as a whole. 469 U.S. at 42. As we

implicitly acknowledged in Gonzales, this rationale applies with equal

force regardless of the nature or source of the contested impeachment

evidence. We therefore hold that when a defendant objects to a trial

court’s ruling permitting the use of impeachment evidence, he must testify

to preserve the objection for appellate review. Because Duran chose not to

testify, he did not preserve the issue for appeal, and we therefore do not

consider it on the merits.

¶21 We reaffirm and apply this bright-line rule mindful of its impact on

some defendants.

2 Broadly requiring a defendant to testify in order to

2 Duran suggests that extending the testimony requirement to the

plea-statement context could discourage “full and frank candor” during

plea negotiations. This argument presumes that defendants will hedge

their statements in plea negotiations based on the prospect that trial

judges might later, contrary to the applicable rules, allow impeachment

with those statements. That risk, however, is too attenuated to warrant an

exception to the testimony requirement.
STATE v. DURAN

Opinion of the Court

8

preserve the impeachment issue for appeal might adversely affect some

defendants who decide not to testify based solely on a trial court’s

erroneous ruling. But our rule appropriately avoids the need for

conjecture in many, if not most, cases in which a court would have to

speculate on a host of variables, including whatever motivational factors

might have influenced a defendant’s decision to not testify.

¶22 Undoubtedly, the trial court’s error in this case left Duran with a

difficult choice: take the stand and risk impeachment with inculpatory

statements made at his change-of-plea proceeding, or refrain from

testifying and forego any chance of urging that ground for reversal on

appeal. The United States Supreme Court, however, has rejected the

notion that such an outcome is “overly harsh.” Ohler v. United States, 529

U.S. 753, 759–60 (2000) (quoting McGautha v. California, 402 U.S. 183, 215

(1971)) (“[I]t is not thought inconsistent with the enlightened

administration of criminal justice to require the defendant to weigh [the]

pros and cons in deciding whether to testify.”). More importantly, we

believe that the benefits of our bright-line approach will outweigh, in most

cases, any unfairness to defendants, particularly as it does not prevent

them from seeking special-action review of a denial of a motion in limine.

See State ex rel. Romley v. Martin, 203 Ariz. 46, 47 ¶¶ 4–5, 49 P.3d 1142, 1143

(App. 2002) (accepting special action review of in-limine rulings that prior

convictions could not be used for impeachment), aff’d, 205 Ariz. 279, 69

P.3d 1000 (2003). Through that procedure, erroneous rulings regarding

impeachment evidence may be addressed and rectified before trial.

III.

¶23 We vacate the court of appeals’ opinion and affirm Duran’s

convictions and sentences.