Opinion
No. 344, 1998.
June 17, 1999.
Appeal from the Superior Court, New Castle County, CrA IN92-04-0451, IN92-04-0453.
AFFIRMED
Unpublished Opinion is below.
STEPHEN L. FULLMAN, Defendant Below, Appellant, v. STATE OF DELAWARE, in and for New Castle County, Appellee. No. 344, 1998. Supreme Court of Delaware. Submitted: April 13, 1999. Decided: June 17, 1999.
Court Below: Superior Court of the State of Delaware, Cr.A. Nos. IN92-04-0451 and Plaintiff Below, IN92-04-0453.
Before VEASEY, Chief Justice, HARTNETT and BERGER, Justices.
ORDER
This 17th day of June, 1999, upon consideration of the briefs and arguments of the parties, it appears to the Court that:
1) Stephen L. Fullman appeals from his conviction, following a jury trial, of possession with intent to deliver cocaine and conspiracy second degree. He argues that the trial court erred: (i) in allowing the State to question him about his failure to pay income tax; and (ii) in failing to instruct the jury about the limited purpose for which evidence of his prior convictions could be considered.
2) Fullman was arrested after a police officer, who was conducting surveillance, saw Fullman and another man engage in transactions that appeared to be drug sales. Immediately before the arrest, the other man was seen dropping something, and the police recovered two bags containing cocaine at the drop point. The police found $483.00 in Fullman's pocket.
3) Fullman testified that he was at his girlfriend's apartment on the night in question. He left and was walking to his car when he saw some friends and stopped to talk to them. He was socializing for approximately ten minutes when the police showed up and arrested him. Fullman admitted having close to $500 in his pocket, but said that it was money from his car repair business. Fullman attempted to substantiate that claim by introducing receipts from the business and having his business associate testify that Fullman carried large amounts of cash to buy cars at auction.
4) On cross-examination, the State asked Fullman, among other questions about his business, whether Fullman ever paid taxes. Fullman answered "no" before his counsel could object. Immediately after the answer, however, counsel objected that the question was irrelevant. The trial court overruled the objection.
5) The trial court's evidentiary ruling is reviewed for abuse of discretion. Lilly v. State, Del.Supr., 649 A.2d 1055 (1994). Fullman argues that his failure to pay taxes had no bearing on whether he possessed or delivered drugs. We disagree. The fact that Fullman had almost $500 in his pocket when arrested supported the claim that he was selling drugs. Fullman offered another explanation for the cash, saying that the money was from a legitimate business. If Fullman's money came from his car business, as he claimed, it would be reasonable to expect that he paid taxes. Fullman's failure to pay taxes was relevant to impeach his testimony about the source of his funds.
6) Fullman also argues that, since it is a crime not to pay taxes, the tax question's prejudicial effect far outweighed its probative value. Because Fullman did not raise this issue in the trial court, our standard of review is plain error. Wainwright v. State, Del.Supr., 504 A.2d 1096 (1986). We find no error, plain or otherwise, in the trial court's exercise of discretion. A person whose income is below a certain level is not required to pay any taxes. Thus, the jury need not have concluded that Fullman was a criminal because he failed to pay taxes, and the question was not unduly prejudicial.
7) Fullman also argues that the trial court erred in failing to give a jury instruction explaining the limited purpose for which evidence of his prior crimes was admitted. Fullman's counsel elicited the facts concerning Fullman's prior felony convictions on direct examination. Fullman did not request a limiting instruction, either at the time of the testimony or at the conclusion of the trial. Nonetheless, he argues that the trial court was required to give a limiting instruction and that, under Weber v. State, Del.Supr., 547 A.2d 948 (1988), the failure to do so constitutes reversible error.
8) In Weber, the State introduced the evidence of defendant's prior crimes. Here, Fullman made the strategic decision that it would be better to acknowledge his past crimes "voluntarily" by testifying about them on direct. When a defendant introduces evidence of his prior crimes, this Court has held that a limiting instruction is not mandated. Shavico v. State, Del.Supr., 1995 WL 622423 (September 29, 1995). We find that the trial court's failure to give a limiting instruction was not plain error.
NOW, THEREFORE, IT IS ORDERED, that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Carolyn Berger, Justice.