               IN THE SUPREME COURT OF IOWA
                              No. 09–1711

                           Filed June 3, 2011


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 DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, Nnawuihe Ukabiala,

Student 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 State 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. Defendant, Justin Derby, asks us to overrule Brown in

light of State v. Daly, 623 N.W.2d 799, 801 (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 Hobson’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.

460, 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 referenced 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’s
                                         3

prior convictions.       Derby had previously been convicted of theft and

burglary.       The district court partially sustained Derby’s motion and

prevented the State from using Derby’s prior convictions 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 prior felony convictions].” The district court then stated:

                 Obviously, 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 the 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, “Obviously 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 elected not to testify.     At the trial’s

conclusion, Derby stated he would have testified if the district court had

ruled favorably on his motion in limine. Derby was convicted by jury of

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

Derby stipulated to being a habitual offender.              The district court

sentenced Derby to seven concurrent fifteen-year sentences, 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, citing
                                     4

Brown, 569 N.W.2d at 117–18, held Derby failed to preserve his claim

because he elected not to testify. We granted further review to examine

Brown’s viability in light of subsequent decisions.

      II. Preservation of Error.

      Iowa Rule of Evidence 5.609 governs the admissibility of prior

convictions for impeachment purposes.        Derby concedes he has not

preserved error under the standard articulated in Brown. Brown holds

that, if a defendant does not testify, the defendant does not preserve

error to appeal the district court’s in limine ruling with respect to rule

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 was

convicted, and he appealed the district court’s in limine ruling. Id. at

115. Brown insisted he should not be required to testify to preserve his

challenge to the district court’s rule 5.609 in limine ruling. Id. at 118.

Brown argued such an error-preservation requirement forces the

defendant into an 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

testify and ability to appeal the district court’s in limine ruling while

avoiding 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 to
                                     5

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 adequate record to perform a

harmless-error analysis.    See id. at 306–07.    In Brown, we reiterated

these three reasons as grounds for our result. Brown, 569 N.W.2d at

118.     In Brown, we 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, 83 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 presumptively 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 to
                                      6

accurately determine prejudice based upon a complete record. Absent

such a rule, the defendant can attempt to “plant” reversible error simply

by not testifying anytime the trial court declines the defendant’s rule

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 the 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 known 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. When 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 evidence outweighs

its prejudicial effect to the accused[.]”).   The court is handicapped in

performing this fact-specific balancing when it does not have a complete
                                    7

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 defendant’s prior

convictions for impeachment purposes—all circumstances that may

influence the probative value or prejudicial 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 conviction evidence,

Brown and Luce may force a defendant to be confronted by improper and

prejudicial prior conviction evidence 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 wisdom 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 victim’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 cashing them.    We are left only to speculate how Derby’s trial

testimony would have rebutted the State’s witnesses.      Brown ensures
                                       8

this court can engage in a meaningful harmless-error analysis. Second,

the scant record inhibits appellate review of the rule 5.609(a) issue. The

record does not clearly identify Derby’s prior convictions or how many he

had. The record suggests Derby 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 rule

5.609(a)(1) or is mandatory under rule 5.609(a)(2).         The rule 5.609(a)

balancing requirement 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 (Iowa 2011). If 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 convictions 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 Effect on Brown.         Derby argues Daly, decided four

years     after   Brown,   undercuts    Brown’s    reasoning   and   warrants

overturning Brown. To 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. Garrett,

183 N.W.2d 652, 654 (Iowa 1971) (noting in limine rulings are not
                                     9

subject to reversible error, only subsequent admission or denial 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, 229 N.W.2d 762 (Iowa 1975).

In Miller, the trial court made a definitive ruling on a motion in limine

that permitted the State to use the defendant’s prior convictions for

impeachment purposes.       Miller, 229 N.W.2d at 768.       The defendant

subsequently elected 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. (emphasis added). Miller merely held 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 in
                                    10

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 reobject 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 State’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 defendant’s prior convictions, the

defendant need not reobject to the admission of his convictions at trial to

preserve error. Rather, the defendant could affirmatively introduce his

convictions at trial and still preserve error. In 2000, the 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

Rule 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 Ohler

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 court’s

in limine 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 convictions 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 trial, on either direct or cross-

examination.

      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.       By contrast, in

Brown, the defendant does not testify, and his evidence of prior

convictions is never admitted at trial. These differences lead to different

outcomes for error preservation. Our reasoning in Brown is based upon

the practical appellate difficulties of reviewing the trial court’s rule 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 convictions raises different issues than defendant’s decision not

to testify). Moreover, Daly is not new law in this state. Daly was a mere
                                           12

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 from Other Jurisdictions. Derby also argues that

cases from other jurisdictions call into question Brown’s continuing

vitality. Notably, however, Derby has not cited cases of first impression

decided after Brown. Nonetheless, we will review decisions reached in

other jurisdictions.       The preservation-of-error issue present here has

been considered in nearly every jurisdiction in this country. Courts have

reached 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.


       1State 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, 782 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 (collecting 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

limine ruling under rule 5.609(a). Alternatively, Derby 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 states rejecting Luce, the New Jersey Supreme Court has

most thoroughly articulated its reasoning. 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

defendant to testify and face potentially improper prior conviction

impeachment to preserve error. Id. at 376. First, the court noted that

trial courts routinely perform the prior-conviction evidentiary-balancing

test before trial, without knowing the defendant’s specific testimony. Id.

Second, with respect to harmless-error concerns, the court noted that
                                    14

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 court 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 announcements that were plainly wrong.       Id. at 395; see

also State v. Harrington, 800 N.W.2d at 49 (overruling in part State v.

Axiotis, 569 N.W.2d 813, 816 (Iowa 1997)).

      We 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 determination of admissibility.

Derby cites no Iowa case that holds otherwise. In Brown, we were asked

to decide 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

limine under rule 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 appeal.’ ” 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 in 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 shown Brown was the product of clearly

erroneous    decision   making.     Derby    also   failed   to   preserve   his

constitutional claims. Accordingly, we affirm his convictions, sentences,

and judgment.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Mansfield, J., who takes no part.
