                                 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

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).


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                            Opinion of the Court

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 prior-
conviction 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


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                             STATE v. DURAN
                            Opinion of the Court

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 plea-
related 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


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                             STATE v. DURAN
                            Opinion of the Court

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.


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                             STATE v. DURAN
                            Opinion of the Court

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 prior-
conviction 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



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                            STATE v. DURAN
                           Opinion of the Court

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.


                                        7
                             STATE v. DURAN
                            Opinion of the Court

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.




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