W. HODGES, District Judge
Plaintiff Walter J. Lawrence, proceeding pro se, is a beneficiary and participant in the General Motors Hourly-Rate Employees Pension Plan (the "GM Plan"). Lawrence alleges that the GM Plan and its Plan Administrator, General Motors Corporation ("GMC") violated his rights under the Employee Retirement Security Act of 1974, 29 U.S.C. § 1001 et seq ("ERISA"), when GMC and the GM Plan reduced Lawrence's monthly pension benefits to recoup an accidental overpayment.
Lawrence has filed two motions for summary judgment (Docs. 35, 68), and the Defendants have filed a cross-motion for summary judgment (Doc. 51), to which the Parties have filed responses and reply briefs. The Parties have also filed a host of other assorted motions, all of which are ripe for disposition. As discussed in more detail below, the Court concludes that Lawrence's motions for summary judgment are due to be denied, the GM Plan's cross-motion for summary judgment is due to be granted, and all other motions are due to be denied.
Undisputed Material Facts and Procedural History
I. Undisputed Material Facts
Lawrence was a 31-year hourly-employee of GMC. As such, he was a member of the International Union, United Auto Workers, and his terms and conditions of employment were governed by the GM-UAW Collective Bargaining Agreements and their supplements. Lawrence retired from GMC in 1993, and he began receiving monthly pension benefits under the GM Plan as of March 1, 1993. The Plan Administrator and Named Fiduciary for the GM Plan is GMC.
A. The Terms of the Plan
At the time Lawrence began receiving pension benefits, the terms and conditions of his benefits were governed by the Supplemental Agreement Covering Pension Plan to the GM-UAW Contract dated September 17, 1990, which was collectively bargained by and between GMC and the Union. (See Doc. 59, pp. 91, 160, 175). Section 3(a) of the 1990 Supplemental Agreement, entitled "Board of Administration" established a six member central Board of Administration (three members appointed by GMC and three appointed by the Union) to transact the "necessary business" of the GM Plan, and established a four-member quorum requirement. (Id.). Section 3(c) established that the Board "shall work out matters" including "the procedures for reviewing applications for pensions;" "the handling of complaints regarding the determination of age, service credits, and computation of benefits;" and "procedures for making appeals to the Board." (Doc. 59, p. 180). The 1900 Supplemental Agreement further provided that "[t]here shall be no appeal from any ruling by the Board which is within its authority. Each such ruling shall be final and binding on the Union and its members, the employee or employees involved, and on the Corporation." (Id., p. 179).
The Summary Plan Description covering the GM Plan dated September 17, 1990 also discussed the Board of Administration's authority in resolving pension disputes:
If you do not agree with a GM decision that has been made with respect to (1) your age, (2) the amount of your credited service, or (3) the computation of your benefits, you may appeal this decision to your local pension committee. If (1) the local pension committee is unable to agree on your appeal, or (2) the committee agrees but you do not, your case may be referred to the GM-UAW Pension Board of Administration. If the Board members fail to agree, the Board may appoint an impartial chairman to resolve the dispute. The decision of the (1) Board, or (2) impartial chairman, will be binding on all parties.
GMC and the Union later enacted a new Supplemental Agreement Covering Pension Plan to the GM-UAW Contract dated September 18, 2003 (Doc. 59, p. 1). The 2003 Supplemental Agreement contains a similar Section 3(a), establishing a six member Board of Administration under the same terms and conditions as before, and a similar Section 3(c) authorizing the Board to resolve pension disputes and appeals (Id., pp. 8-9, 11). Section 3(a)(9) further provides:
There shall be no appeal from any ruling by the Board which is within its authority. Each such ruling shall be final and binding on the Union and its
members, the employee or employees involved, and on the Corporation, subject only to the arbitrary and capricious standard of judicial review.
(Id., p. 9).
The 2003 Supplement Agreement also contains a detailed Appeals Procedure:
1. Any employee who disputes a determination with respect to such employee's (i) age, (ii) credited service under the Pension Plan, (iii) computation of pension benefits or supplements under the Pension Plan, (iv) partial or complete suspension of supplements, or (v) whether such employee is engaged in gainful employment except for purposes of rehabilitation, may file with the Center a written claim on form BA I, "Employee Claim to Pension Committee." Such claim shall be filed within 60 days, including the 60th day, of receipt of such determination.
2. In all cases where the employee has filed a claim on form BA 1, the Pension Committee shall review such claim with the employee, return one copy of form BA 1 to the employee with a written answer to the claim and, if the claim is rejected the reason therefor.
3. If the employee is not satisfied with the answer, such employee may request the Pension Committee, in writing on form BA 1, to refer the case to the Board for decision. Such claim shall be filed with the Pension Committee within 60 days, including the 60th day, of the employee's receipt of such answer. The Pension Committee shall then forward form BA 1, with material pertinent to the case and the answer to the employee's claim, to the Board.
4. If the Pension Committee should fail to agree upon the disposition of any application or authorization, or of any claim filed by an employee, the case shall be referred to the Board for determination on form BA 2, "Notice of Appeal to Board of Administration." A written signed statement setting forth all the facts and circumstances surrounding the case, and any material pertinent to the case, shall accompany the referral. Such statement may be submitted jointly by the members of the Pension Committee or separate signed statements may be submitted provided such statements are exchanged by the Pension Committee members prior to being submitted to the Board.
5. All material with respect to cases referred to the Board shall be submitted in duplicate and shall be mailed to the Secretary, Pension Board of Administration, Mail Code 482-B37-A68, General Motors Global Headquarter, 200 Renaissance Center, P.O. Box 200, Detroit, Michigan 48265-2000.
6. The Board shall advise the Pension Committee in writing of the disposition of any case referred to the Board by the Pension Committee. The Pension Committee shall forward a copy of such disposition to the employee.
7. Forms BA 1 and BA 2 for each appeal must be requested from the Secretary, Pension Board of Administration, Mail Code 482-B37-A68, General Motors Global Headquarter, 200 Renaissance Center, P.O. Box 200, Detroit, Michigan 48265-2000.
(Doc. 59, pp. 72-73).
Both the 1990 and 2003 Supplemental Agreements contain virtually identical provisions prohibiting the alienation of a beneficiary's pension benefits.
The pension fund shall not in any manner be liable for or subject to the debts or liabilities of any employee, separated employee, retired employee, pensioner or surviving spouse. No right, benefit, pension or supplement at any time under the Plan shall be subject in any manner to alienation, sale, transfer, assignment, pledge or encumbrances of any kind except in accord with provisions of a Qualified Domestic Relations Order within the meaning of I.R.C. Section 414(p). If any person shall attempt to, or shall, alienate, sell, transfer, assign, pledge or otherwise encumber accrued rights, benefits, pensions or supplements under the Plan or any part thereof, or if by reason of bankruptcy or other event happening at any time such benefits would otherwise be received or enjoyed by anyone else, the Corporation may terminate the interest of such employee, pensioner or surviving spouse in any such benefit and instruct the trustee to hold or apply it to or for the benefit of such employee, pensioner or surviving spouse, spouse, children or other dependents, or any of them as the Corporation may instruct; provided, however, that any pensioner, or surviving spouse, entitled to a monthly benefit under the Plan:
. . . .
(b) will have Federal and state income tax withheld pursuant to Federal and state statutes or regulations unless, only with respect to Federal income tax, elected otherwise by submitting to the Corporation authorization and direction acceptable to the Corporation.
. . . .
(e) may have amounts of not less than $80.00 but in no event more than 10% of the retired employee's monthly pension, withheld to repay any outstanding overpayment owing to any benefit plan of the Corporation, pursuant to written authorization and direction acceptable to the Corporation.
(Doc. 59, pp. 47-48, 212-13).
B. The Reduction in Lawrence's Benefits
In April 1999, GMC received a Notice of Levy from the Internal Revenue Service ("IRS") stating that Lawrence had unpaid federal income taxes for the tax years 1980 through 1994 in the total amount of $267,928.91 (Doc. 59, p. 300). Based on the levy, the Defendants began remitting all of Lawrence's monthly pension benefits to the IRS, resulting in a monthly payment to Lawrence of $0.00. There is no evidence that Lawrence ever contested this levy from 1999 until June 2007.
The Defendants continued to remit Lawrence's monthly pension benefit to the IRS through the end of 2004 without incident. In January 2005, the GM Plan switched claims administrators from Electronic Data Systems Corporation ("EDS") to Fidelity Investments Institutional Operations Company, Inc. ("Fidelity"). Due to an apparent mis-communication between EDS and Fidelity, Lawrence's monthly pension benefit in the amount of $1,121.70 was restored to him. However, at the same time, Fidelity continued to remit a monthly payment in the amount of $1,099.50 to the IRS. This resulted in the Defendants making payments to the IRS to reduce Lawrence's tax liabilities without concurrently reducing the pension benefits paid to Lawrence. This "double payment" continued for 30 months from January 2005 through June 2007. By that time, Lawrence had accrued an overpayment in the amount of $32,985.00 (30 months × $1,099.50). (Doc. 59, p. 234).
On May 14, 2007, after the Defendants discovered this error, the GM Benefits Services Center sent a letter to Lawrence informing him that his monthly pension benefits had not been adjusted to account for the tax levy amount of $1,099.50 per month, and that there was a total overpayment amount of $32,985.00 (Doc. 59, p. 241). The letter further stated "[b]ecause the Plan is an ERISA qualified Plan, we are required to collect overpayments and return them to the Plan's Trust Fund." (Id.). Accordingly, the letter informed Lawrence that as of July 1, 2007, his monthly benefit (which at the time was $1,045.50) would be reduced to $0.00 to recoup the overpayment. The letter also provided a toll free number for Lawrence to call if he had any questions.
Lawrence's monthly benefits were indeed reduced to $0.00 effective July 1, 2007. In a letter dated September 5, 2007, the GM Benefits Services Center wrote to Lawrence informing him that as of October 1, 2007, his monthly pension benefit would be $837.50, and that beginning on that date, the Defendants would only reduce his monthly benefit by 50% ($418.75) to continue their recoupment of the overpayment. (Doc. 59, pp. 237-38; Doc. 50, Ex. A). The letter stated that Lawrence would receive a monthly payment of $418.75 from October 1, 2007 through March 1, 2014, and on April 1, 2014 he would receive a payment of $515.00. At that point, the Defendants would have recovered the entire overpayment and Lawrence's monthly benefit of $837.50 would be restored in full. The letter again concluded with a toll free number for Lawrence to call if he had any questions.
C. Lawrence's Attempts to Appeal the Reduction in his Benefits
Upon receipt of the May 14, 2007 letter concerning the $32,985.00 overpayment, Lawrence engaged in several attempts to challenge the decision to reduce his monthly benefits, with no success.
By letter dated June 16, 2007, Lawrence wrote to the General Motors Benefits Service Center and to GMC as Plan Administrator challenging the Defendants' decision to reduce his monthly pension benefits as laid out in the May 14, 2007 letter. (Doc 59, pp. 253-327). Lawrence's letter, which consisted of 45 pages of argument and 23 exhibits, was entitled "Notice of Administrative Claim and Appeal of the Decision of The General Motors Corp. Decision Dated May 14, 2007." (Id., p. 253). The letter stated that "[t]his is my attempt to exhaust my administrative remedies under the Supplemental Agreement Covering the GM/UAW pension Plan that was in effect at the time that I retired on March 1, 1993." (Id.). In the letter, Lawrence attacked the validity of the original 1999 IRS Notice of Levy, and the Defendants' authority to recover overpayments by reducing his monthly pension benefits.
Lawrence sent this letter via certified mail. There is no dispute that the Defendants received the letter. However, there is no evidence that anyone from the GM Plan or GMC ever responded to the letter.
On June 25, 2007, Lawrence sent a second 54-page letter plus exhibits to the General Motors Benefits Service Center and GMC (Doc. 59, pp. 328-411). This second letter, entitled "Amended and Supplemental Notice of Administrative Claim and Appeal of the Decision of the General Motors Corp. Decision Dated May 14, 2007" again challenged the decision to reduce his monthly pension benefits to recoup the $32,985.00 overpayment. The second letter also reiterated that Lawrence was attempting to exhaust his administrative remedies under the Supplemental Agreement. (Id., p. 329).
The General Motors Benefits Services Center responded to Lawrence's June 25, 2007 letter on July 11, 2007 (Doc. 59, p. 239). The Center simply repeated the fact that Lawrence had received an overpayment in the amount of $32,985.00, and reiterated the terms by which his monthly benefits would be reduced until the Plan recouped the overpayment. The Center did not acknowledge that Lawrence was attempting to exhaust his administrative remedies and/or dispute the reduction in his monthly benefits, and did not provide Lawrence with any guidance as to how he could further pursue his administrative remedies.
Lawrence wrote to the General Motors Benefits Services Center again on June 20, 2007, requesting a copy of the Supplemental Agreement in effect on the date he retired from GMC (Doc. 59, p. 252a). On July 2, 2007, the Center responded, instructing Lawrence to contact his Union Benefit Representative or Retiree Relations to obtain the document. (Doc. 59, p. 240).
On July 10, 2007, Lawrence wrote to the Plan Administrator requesting copies of the Summary Plan Description, latest annual report, the collective bargaining agreement in effect in 1993, and any other documents under which the GM Plan was established and operated (Doc. 59, pp. 245-46). On July 30, 2007, Preston M. Crabill, Director, Pension Savings Plans for GMC responded to Lawrence's request, and provided Lawrence with a copy of the GM Hourly-Rate Employee Pension Plan and the Summary Plan Description for GM Hourly Retirees and Eligible Survivors (Doc. 59, p. 244).
On July 11, 2007, Lawrence sent a third letter to the General Motors Benefits Services Center and GMC, entitled "Amended and Supplemental Notice of Administrative Claim and Appeal of the Decision of the General Motors Corp. Decision Dated May 14, 2007" (Doc. 59, pp. 412-550). The letter again stated that Lawrence was attempting to exhaust his administrative remedies and appeal the decision to reduce his monthly benefits to account for the overpayment. The letter consisted of 106 pages of argument attacking the IRS levy and the Defendants' authority to recover overpayments.
There is no evidence that anyone from either the General Motors Benefits Services Center or GMC responded to Lawrence's July 11, 2007 letter. Lawrence then filed suit in this Court 90 days later.
II. Procedural History
Lawrence filed his original complaint against the GM Plan and GMC on October 9, 2007 (Doc. 1). He filed an amended complaint on February 29, 2008 (Doc. 47) alleging three claims against the Defendants: (1) a claim under 29 U.S.C. §§ 1056 and 1132(a)(1)(B) to recover the benefits the Defendants have recouped for the overpayment to Lawrence (Count I); (2) a claim against GMC as Plan Administrator for breach of fiduciary duty pursuant to 29 U.S.C. § 1132(a)(3) (Count II); and (3) a claim against GMC as Plan Administrator for failure to provide Lawrence with copies of the Plan documents upon request pursuant to 29 U.S.C. § 1132(c)(1) (Count III). Lawrence seeks monetary damages in the amount of the recouped benefits, liquidated damages, attorney's fees, and costs.
Although Lawrence does not specify which Defendants are the subject of each claim, it is clear that Counts II and III can only be brought against GMC in its role as Plan Administrator and plan fiduciary.
On February 13, 2008, the United States Magistrate Judge held a case management conference. At that hearing, the Magistrate Judge directed the Parties to file memoranda concerning the appropriate standard of review for Lawrence's ERISA claims, and whether Lawrence was entitled to discovery (Doc. 37). After a review of the Parties' submissions (Docs. 45, 50), the Magistrate Judge determined that the appropriate standard of review for this case is the arbitrary and capricious standard, and that Lawrence was not entitled to any discovery outside of the administrative record (Doc. 71). The Defendants filed the administrative record on April 1, 2008. (Doc. 59).
In addition to the standard of review dispute, the Parties have filed cross motions for summary judgment (Docs. 35, 51, 68), and Lawrence has moved to strike two of the Defendants' affirmative defenses (Doc. 65, 79). Lawrence has also filed assorted motions seeking to challenge the IRS levy (Doc. 81), for sanctions against the Defendants (Doc. 88), to reconsider the Magistrate Judge's Order on discovery and the standard of review (Doc. 76), and a motion for recusal based on this Court's delay in ruling on Lawrence's motions (Doc. 90). In response, the Defendants have filed several motions to strike (Docs. 74, 80, 83). All of these motions have been responded to and are ripe for disposition.
Before the Court reached the merits of these motions, GMC filed a Notice of Bankruptcy stating that on June 1, 2009, GMC filed a voluntary petition for bankruptcy protection under Chapter 11 of the Bankruptcy Code (Doc. 93). As such, all claims against GMC, and all further proceedings involving GMC in this case are stayed pursuant to the automatic stay provisions of 11 U.S.C. § 362(a). Therefore, the Court will proceed only on those claims and motions involving the GMC Plan.
The only claim asserted against the GMC Plan is Count I — the claim for recovery of benefits under § 1132(a)(1)(B). The Court is aware that in this Circuit claims under § 1132(a)(1)(B) for an award of benefits are normally considered claims for equitable relief, which may only be brought against the Plan Administrator.Hunt v. Hawthorne Assoc., Inc., 119 F.3d 888, 907-08 (11th Cir. 1997). However, this is not such a claim. Lawrence is not seeking an order enjoining GMC or any other entity to award him continuing benefits or to declare that Lawrence is qualified for or entitled to pension benefits. Rather, Lawrence is alleging that the GM Plan's temporary reduction of his existing monthly pension benefits to recover an accidental overpayment of $32,985.00 violates his rights under 29 U.S.C. § 1056, and is seeking recovery of the precise amounts withheld plus interest (See Doc. 47, p. 13). This is clearly a claim for monetary or legal relief, which can be readily calculated and "shall be enforceable only against the plan as an entity and shall not be enforceable against any other person. . . ." 29 U.S.C. § 1132(d)(2). Indeed, in the converse situation where a Plan seeks to recoup benefits overpayments, such claims are brought by the Plan itself and are considered claims for legal relief. See International Painters and Allied Trades Industry Pension Fund v. Aragones, 642 F. Supp. 2d 1329 (M.D. Fla. 2008). Thus Lawrence's challenge to the Plan's recoupment actions against him is also a claim for legal relief. Count I may therefore proceed in this Court and is not impacted by GMC's bankruptcy stay.
Summary Judgment Standard
The prosecutor also questioned Waldrop about what happened while he was on probation on the assault conviction and the fact that he had been charged with conspiring to sell marijuana. Waldrop testified that the charge had been thrown out, but he was still charged with violating the terms of his probation. The following then occurred:
"[PROSECUTOR:] So you do remember that?
"[WALDROP:] I do, yes, sir.
"[PROSECUTOR:] Okay. It all comes back to you now?
"[WALDROP:] It does.
"[PROSECUTOR:] You just happen to have to be reminded —
"[WALDROP:] Well, you reminded me, yes, sir. And it brings me exactly —
"[PROSECUTOR:] It just wasn't that you were trying to prevent the jury from knowing the full facts about this?
"[WALDROP:] If I was trying to prevent it, sir, I wouldn't even have had my lawyers bring up the assault charge.
Because I figured you was going to come to me with that.
"[PROSECUTOR:] And it wasn't the fact that you didn't want the jury to know the whole information that you denied this again today, is it?"
(R. 1642-43.)
During his closing argument, the prosecutor again pointed out the inconsistencies and discrepancies between Waldrop's statements and his trial testimony. He also argued that the State's medical experts refuted Waldrop's explanations about what happened. Further, during his rebuttal closing argument, the prosecutor stated:
[H]e's lied five other times in five other statements. He don't want to say it. You know, finally, he just said, `Oh, yeah, I lied in the handwritten statement where I admitted shaking the baby to death.'
"And then he has the audacity to get up there and lie about his criminal history to you as a juror, thinking we didn't even know, to minimize it just like he's done this entire case. From statement one, two, he had lied, he lied, he lied, he lied, he lied. And now today, he lied. Six times.
"He lied about his criminal record. Oh, it's just a little assault, I did eleven months. Five years, aggravated assault. That's what this is about."
(R. 1803-04.) Finally, he stated:
"When presented with the question of what he did, lied, lied, lied, lied, lied, lied today."
(R. 1811.)
Afterward, the trial court gave its instructions to the jury. During its oral charge, the trial court did not, at any time, instruct the jury as to the purposes for which it could and could not consider evidence about Waldrop's prior conviction.
Waldrop argues that the trial court erred because it did not instruct the jury that it could consider evidence about his prior conviction only for impeachment purposes and not as substantive evidence of guilt. However, he did not first present this argument to the trial court. Therefore, we review it for plain error. See Rule 45A, Ala. R.App. P.
With regard to impeachment by evidence of conviction of a crime, Rule 609, Ala. R. Evid., provides, in relevant part:
"(a) General rule. For the purpose of attacking the credibility of a witness,
"(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and
"(1)(B) evidence 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. . . ."
Also, regarding evidence that is admitted for limited purposes, Rule 105, Ala. R. Evid., provides:
"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."
In Ex parte Minor, 780 So.2d 796 (Ala. 2000), Minor was convicted of capital murder of a victim who was less than fourteen years of age and sentenced to death for the killing of his two-month-old son, Ebious Jennings. At trial, his defense was that he did not cause the injuries that resulted in the victim's death. During direct examination by defense counsel, Minor admitted that he had prior convictions for second-degree assault, unlawful possession of cocaine, and second-degree rape and that he had escaped from the county jail while he was awaiting trial on the capital murder charge. On cross-examination, he admitted that he had made several inconsistent statements about the incident, but contended that he did so to get released on bond and to protect the victim's mother.
After this court affirmed Minor's conviction, he petitioned the Alabama Supreme Court for review, arguing "that the trial court committed reversible error in failing to properly instruct the jury regarding his prior convictions — 1) that it could consider the evidence of Minor's prior convictions only for impeachment purposes and 2) that it could not consider the prior convictions as substantive evidence of Minor's guilt." 780 So.2d at 799. The Alabama Supreme Court agreed with Minor, reasoning as follows:
"Minor did not at trial request a limiting instruction regarding the evidence of his prior convictions and did not at trial object to the court's failure to give such an instruction. However, this Court's review of a death-penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(a)(2)(D) and (k), Ala. R.App. P. . . . Even under the stringent standards applicable to plain-error review, we conclude that the failure to properly instruct the jury in a capital-murder case as to the proper use of evidence regarding prior convictions constitutes reversible error.
"When a defendant testifies at trial, the State is entitled to impeach the defendant's credibility by introducing evidence of prior convictions. See Rule 609(a)(1)(B), Ala. R. Evid. In considering the admissibility of prior convictions for impeachment purposes, this Court has stated:
"`The high probability of prejudice against a defendant makes the admissibility of his previous criminal convictions a controversial issue.
"`This notion of prejudice has been said to encompass two tendencies of juries: 1) The tendency to convict not because the defendant is guilty of the charged offense, but because evidence introduced shows he is a bad person who should be incarcerated regardless of his present guilt, and 2) the tendency to infer that, because the defendant committed a prior crime, he committed the crime charged. Thus, a defendant wishing to testify in his own behalf faces this dilemma: Testify and run the risk of greatly prejudicing his defense by introduction of prior convictions to impeach, or refrain from testifying and damage his defense by not telling his side of the story.
"`The rationale for admitting impeachment evidence when a defendant, or any other witness, testifies is that certain evidence of prior criminal acts and general character relates to a person's propensity to lie; therefore, the jury should have and use this evidence, but only for the limited purpose of evaluating the witness's veracity.'
" McIntosh v. State, 443 So.2d 1283, 1285 (Ala. 1983). (Citations omitted.) The law in Alabama is clear that `evidence of prior criminal convictions for impeachment purposes may not be considered or taken into account in determining a defendant's guilt of the offense for which he is prosecuted.' King v. State, 521 So.2d 1360, 1361 (Ala.Crim.App. 1987) (quoting 81 Am.Jur.2d Witnesses § 569 at 575 (1976)). It is well settled that when prior convictions are introduced for impeachment purposes the defendant is entitled, upon request, to have the jury instructed that those prior convictions cannot be considered as substantive evidence of guilt of the crime charged. King, supra. The issue in the present case is whether, absent a request or an objection by the defendant, the trial court has a duty to instruct the jury that evidence of prior convictions is not to be considered as substantive evidence of guilt. We hold that the trial court does have such a duty in a capital-murder case.
"Minor testified on direct examination that he had had prior convictions for assault in the second degree, for possession of cocaine, and for rape in the second degree. The Court of Criminal Appeals stated that the evidence of Minor's prior convictions was not admitted for impeachment purposes because it was elicited by Minor's counsel on direct examination. Minor v. State, 780 So.2d [707,] 777 [(Ala.Crim.App. 1999)]. We disagree.
"There is no consensus among the jurisdictions as to the proper treatment of a defendant's direct testimony admitting prior convictions. In State v. Smalls, 260 S.C. 44, 194 S.E.2d 188 (1973), upon direct examination, defense counsel elicited from the defendant the fact that he previously had been convicted of the crimes of robbery, grand larceny, and housebreaking. The Supreme Court of South Carolina stated: "When appellant testified, evidence of his prior convictions became admissible solely on the issue of his credibility as a witness.' 260 S.C. at 47, 194 S.E.2d at 189. Thus, the court concluded, the fact that the defendant first testified as to his prior convictions did not preclude his right to have the trial court limit the jury's consideration of his testimony to the issue of credibility. Similarly, in United States v. Diaz, 585 F.2d 116 (5th Cir. 1978), the fact that the defendant testified on direct examination that he had two prior convictions did not preclude the necessity that the trial court instruct the jury that the evidence of prior convictions was to be considered only for a limited purpose. In Commonwealth v. Hurley, 32 Mass.App.Ct. 620, 592 N.E.2d 1346 (1992), the court considered the argument that a defendant who elects to introduce evidence of his prior convictions is not entitled to a limiting instruction because the evidence has not been introduced for impeachment purposes. That court concluded: `Realistically, the defense puts in the evidence only because the prosecution will do so otherwise; the basis for admissibility is the same.' 32 Mass.App.Ct. at 622, 592 N.E.2d at 1347.
"The New Hampshire Supreme Court has held differently. That court has held that a trial court must provide a limiting instruction when evidence of prior convictions is introduced to impeach a defendant's credibility, unless such an instruction is specifically waived by the defendant, but that this rule does not apply when the defendant's prior convictions are admitted during the defendant's direct testimony. State v. Cassell, 140 N.H. 317, 666 A.2d 953 (1995). The Court of Criminal Appeals relied on Cassell in concluding that Minor's failure to request a limiting instruction could be viewed as a trial tactic used in order to prevent calling further attention to Minor's convictions through an instruction to the jury.
"However, to hold that the evidence of Minor's prior convictions was not offered for impeachment purposes would indicate that it was admissible for another purpose, and it was not. Minor's introduction, on direct examination, of evidence regarding his prior convictions was a trial tactic that does not change the purpose for which the evidence was admitted. Minor introduced evidence of these convictions in anticipation that otherwise it would be brought out by the prosecution; his introduction of it does not waive his right to have the jury instructed as to the proper use of it.
"This Court has never addressed the question whether a trial court has a duty to sua sponte instruct the jury as to the limited purpose for which it may consider evidence of prior convictions. The Court of Criminal Appeals has held that the trial court does not have a duty, sua sponte, to inform the jury that evidence of inconsistent statements may be considered only for the purpose of impeaching a witness's credibility. Varner v. State, 497 So.2d 1135 (Ala.Crim.App. 1986); Weaver v. State, 466 So.2d 1037 (Ala.Crim.App. 1985). However, Varner and Weaver were not capital cases, and the doctrine of plain-error review did not apply. In addition, those cases do not contain any holding or analysis with respect to impeachment by prior convictions. The Court of Criminal Appeals held in Pardue v. State, 571 So.2d 320, 327 (Ala.Crim.App. 1989), rev'd on other grounds, 571 So.2d 333 (Ala. 1990), that defense counsel's failure to request a limiting instruction or to object to the trial court's failure to instruct the jury regarding the defendant's prior convictions waived the issue for review. However, Pardue was not a capital case, and the doctrine of plain-error review did not apply.
"The State argues that the trial court was not required to give the jury a limiting instruction, absent a request by Minor, citing Charles W. Gamble, McElroy's Alabama Evidence, § 165.01(2) (5th ed. 1996):
"`Once the accused has been impeached by one of the permissible impeachment forms, the defense may want to take steps to minimize or offset the impact of the impeachment. The accused is entitled to have the jury instructed that such evidence is to be considered only as affecting the accused's credibility as a witness and not as tending to show guilt. The court is not required to give such an instruction unless the accused requests that it be given.'
"However, this Court has acknowledged the inherently prejudicial nature of evidence of a defendant's prior convictions. Cofer v. State, 440 So.2d 1121, 1124 (Ala. 1983) (`[e]vidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant'). `The general exclusionary rule bars the state from introducing evidence of an accused's prior criminal acts for the sole purpose of proving the propensity of the accused to commit the charged offense.' Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App. 1995). Thus, evidence of prior convictions is admissible only for limited purposes. `The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.' Cofer, 440 So.2d at 1123 (quoting Charles W. Gamble, McElroy's Alabama Evidence § 69.01 (3d ed. 1977)). The general exclusionary rule `protects the defendant's right to a fair trial' by seeking "`to prevent conviction based on a jury belief that [the] accused is a person of bad character. The jury's determination of guilt or innocence should be based on evidence relevant to the crime charged.'" Cofer, 440 So.2d at 1123 (citation omitted). Thus, it naturally follows that the trial court should take all necessary precautions to ensure that when evidence of a defendant's prior convictions is admitted into evidence, the jury is properly instructed on the purpose for which it may consider that evidence. This includes instructing the jury, sua sponte, that it may not consider the evidence of prior convictions as substantive evidence that the defendant committed the charged offense.
". . . .
"In the present case, the trial court gave this vague instruction on the use of impeachment evidence:
"`Now, evidence has been introduced in this case for the purpose of impeaching certain witnesses and discrediting their testimony.
"`The law allows witnesses to be impeached in any number of ways. For example, a witness may be impeached by proof of convictions of crimes involving moral turpitude or a witness may be impeached by contradictory statements made by the witness either on the stand while testifying or at other times and other places, whether under oath or not.
"`But the fact that a witness has been impeached and successfully impeached does not mean that you must necessarily disregard that witness' testimony, either in whole or in part, for there may be other facts and evidence or other testimony or other evidence that in your judgment may tend to corroborate either all or part of that witness' testimony. And as I have already told you, you are the sole and exclusive judges of the credibility of the witnesses and the weight that you will accord their testimony.'
"The trial court did not tell the jury that the evidence of Minor's prior convictions could not be considered as substantive evidence that he committed the crime charged. Because the jurors were not so instructed, they were free to consider the prior convictions for any purpose; thus, they could consider the probability that Minor committed the crime because he had demonstrated a prior criminal tendency. Allowing the jury to make such use of the evidence was highly prejudicial and constitutes reversible error.
See Randolph v. State, 348 So.2d 858 (Ala.Crim.App. 1977) (conviction reversed because the trial court failed to adequately distinguish between impeachment evidence and substantive evidence).
"The failure to instruct a jury in a capital-murder case as to the proper use of evidence of prior convictions is error, and that error meets the definition of `plain error. 'That failure is `so obvious that [an appellate court's] failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' [
Ex -parte] Womack, 435 So.2d [766] at 769 [(Ala. 1983)]. The Court of Criminal Appeals determined that there was no plain error because the trial court could have `reasonably determined that . . . defense counsel had elicited Minor's admission of the prior convictions as part of trial strategy and did not want to call additional attention to the evidence through an instruction to the jury.' 780 So.2d at 773. We disagree. Assuming the trial court did believe that the failure to request the instruction was a trial tactic, the trial court could have easily inquired as to whether defense counsel wanted the instruction given. Considering the presumptively prejudicial nature of evidence of a defendant's prior convictions,
we consider it incumbent on the trial court to ensure that the jury was instructed on the proper use of such evidence. We conclude that the failure of the trial court to instruct the jury that it could not use such evidence as substantive evidence of guilt `has or probably has' substantially prejudiced Minor; thus, it satisfies the plain-error standard. See Rule 39(a)(2)(D) and (k), Ala. R.App. P.
"Furthermore, the prosecutor drew increased attention to Minor's prior convictions through his cross-examination. On cross-examination, Minor provided details concerning each of the prior convictions. He claimed that the second-degree assault charge was based on a shooting that was done in self-defense; that the second-degree rape charge was based on the statutory rape of a female who had lied about her age; and that the drug-possession charge was based on drugs that were not his. The prosecutor used these elaborations to argue that Minor failed to take responsibility for his actions. Specifically, after Minor testified that he had pleaded guilty to possession of a controlled substance but that the drugs were not his, the following colloquy occurred:
"`[Prosecutor]: So that was not your drugs, either?
"`[Minor]: No, it was not.
"`[Prosecutor]: And you did not kill Ebious?
"`[Minor]: No, I did not kill Ebious.'"(R. 1259.) Thereafter, the prosecutor commented: `Actually, Mr. Minor, you have got an explanation for everything to minimize your responsibility, don't you?' Considering these statements in light of `1) [t]he tendency [of juries] to convict not because the defendant is guilty of the charged offense, but because evidence introduced shows he is a bad person who should be incarcerated regardless of his present guilt, and 2) the tendency [of juries] to infer that, because the defendant committed a prior crime, he committed the crime charged,'
McIntosh, 443 So.2d at 1285, we must conclude that the trial court's failure to instruct the jury that Minor's prior convictions could not be used for those purposes constitutes a particularly egregious error. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand for that court to order a new trial."
780 So.2d at 799-804 (footnote omitted).
Shortly thereafter, in Snyder v. State, 893 So.2d 482, 485-87 (Ala. 2001), the Alabama Supreme Court limited its holding in Ex parte Minor, reasoning as follows:
"This Court, in finding that plain error had occurred in
Ex parte Minor, recognized that Minor's testimony was extremely damaging, that the need for an instruction limiting the use of the evidence was obvious, and that the failure to give the instruction was so prejudicial that it affected Minor's substantial rights. While the Court found plain error in the trial court's failure to instruct the jury on the purpose of the evidence of Minor's prior conviction, the Court's holding in that regard did not establish a
per se rule.
See United States v. Waldrip, 981 F.2d 799 (5th Cir. 1993) (clarifying
United States v. Diaz, 585 F.2d 116 (5th Cir. 1978), and holding that whether a failure to instruct on the limited use of prior-conviction evidence was error was to be determined on a case-by-case basis). Thus, each inquiry regarding the propriety of an instruction on the use of evidence of prior convictions presented for impeachment purposes must be determined on a case-by-case basis.
"In the present case, Snyder testified on direct examination that he had pleaded guilty to second-degree theft of property. At the beginning of the state's cross-examination, the following occurred with regard to that prior conviction:
"`[Prosecutor]: Of course, you said that — I believe you said you caught a case in `87. Is that your word? You caught a case. Is that what you said?
"`[Snyder]: May have, yes, sir.
"`[Prosecutor]: That you caught a case in `87 and that case was theft of property?
"`[Snyder]: Yes, sir.'
"(R. 3111.) The prosecutor did not question Snyder further about this conviction. Nor did the prosecutor emphasize Snyder's prior conviction during his closing argument. Thus, unlike the evidence in Ex parte Minor, the evidence of Snyder's prior conviction was presumptively prejudicial, but its impact was not egregious.
"The state requested that the trial court give the standard charge on the proper use of Snyder's prior conviction. The trial court instructed the jury as follows:
"`Now, there has been some testimony offered to the effect that a witness prior to taking the witness stand during this trial has been convicted of a crime.
This testimony is allowed to go to you for one purpose, and that is for your consideration in determining what credibility you will give a witness's testimony from the witness stand in this case. This is for your consideration along with all the other factors in determining whether a witness is worthy of belief in what he says from the witness stand.'
"(Emphasis added.)
"The Court of Criminal Appeals held that plain error had occurred in Snyder's trial because the trial court
"`did not specifically tell the jury that it could not consider [Snyder's] prior conviction as substantive evidence that he committed the capital offenses with which he was charged. . . . [T]he jury could have concluded that [Snyder] committed the charged offenses because he had previously demonstrated a criminal tendency.'
" [Snyder v. State,] 893 So.2d [471,] 477 [(Ala.Crim.App. 2001)].
"In Ex parte Minor, the Court was confronted with a situation where the jury was not offered any direction as to the purpose of the prior-conviction evidence. We must now determine if the trial court in this case erred by not specifically instructing the jury that it could not use prior-conviction evidence as `substantive evidence of guilt.'
"It is well-settled law that, provided the instructions accurately state the law, a trial court has broad discretion in formulating its instructions to the jury. Broadnax v. State, 825 So.2d 134 (Ala. Crim.App. 2000). In Gaddy v. State, 698 So.2d 1100, 1132-33 (Ala.Crim.App. 1995), aff'd, 698 So.2d 1150 (Ala. 1997), Gaddy requested an instruction to the effect that evidence of prior convictions did not constitute evidence that he had committed the charged crime. The requested charge stated: "`I charge you that evidence of other offenses than those charged in the indictment is not to be considered as evidence of the truth of the matters contained in the indictment.'" 698 So.2d at 1132. The trial court refused to issue the instruction but issued the following instruction:
"` "I did not tell you when we first talked that the prior robbery conviction that Mr. Gaddy has suffered
subsequent to the events in December here in Birmingham is admitted for the sole and limited purpose for you to have at your disposal in assessing his credibility as a witness. The law provides if one has suffered a conviction for an offense involving moral turpitude, such as robbery, then these convictions may be called to the jury's attention. But it is for the limited purpose for you having that information at your disposal in assessing his trustworthiness."`
"698 So.2d at 1133. The Court of Criminal Appeals concluded that that instruction properly informed the jury as to the limited purpose of the evidence of the prior crimes — credibility — and that the giving of that instruction was not plain error. This Court did not overrule Gaddy in its analysis in Ex parte Minor. See also Johnson v. State, 292 Ala. 208, 291 So.2d 336 (1974) (stating that an instruction on the limited use of the evidence satisfies any need to instruct the jury that the evidence may not be used as evidence of the crime charged).
"The holding in Gaddy is reasonable, sound, and worthy of application to this case. Here, the trial court properly instructed the jury as to the purpose of the evidence of Snyder's prior conviction. If an instruction clearly informs the jury of the sole purpose of prior-conviction evidence — the witness's credibility — it is reasonable to assume that the jury would not use the evidence for any other purpose. See, e.g., Taylor v. State, 666 So.2d 36 (Ala.Crim.App. 1994), aff'd, 666 So.2d 73 (Ala. 1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996) (recognizing that jurors are presumed to follow instructions). Unlike the circumstances in Ex parte Minor, where the jury could have used the testimony for whatever purpose it desired — to determine a witness's credibility or as substantive evidence of the defendant's guilt — `the trial court in this case informed the jury that the prior-conviction evidence had `one purpose' and that that purpose was to determine credibility; consequently, it eradicated the necessity of informing the jury that it would be improper to use the evidence as substantive evidence of guilt. The unambiguous instruction adequately cautioned the jury, explicitly stated the sole purpose of the testimony, and eliminated the risk that the evidence would be used improperly. Therefore, the emphasis in the instruction on the one purpose of the evidence overcomes a finding that the alleged error `has or probably has adversely affected the substantial right of [Snyder].' Rule 45A, Ala. R.App. P. To hold that the trial court is required to inform the jury that prior-conviction evidence cannot be used as substantive evidence, would unnecessarily limit the trial court's discretion in forming jury instructions, would restrict defense counsel's trial strategy, cf. United States v. Barnes, 586 F.2d 1052, 1059 (5th Cir. 1978), and in certain circumstances may unnecessarily emphasize the prejudicial evidence. Therefore, while the instruction to the jury must state either that prior-conviction evidence can be used only for the purpose of assessing a witness's credibility or state that such evidence may not be used as substantive evidence of the defendant's guilt of the crime charged, it is not reversible error per se if the trial court does not instruct both as to the admissible purpose of the prior-conviction evidence and the purpose for which such evidence may not be considered, unless counsel requests such a two-pronged instruction and the instruction is supported by the evidence.
"Under the facts presented here, the trial court's instruction to the jury on the use of the evidence of Snyder's prior conviction was a correct statement of the law; it did not constitute plain error. The judgment of the Court of Criminal Appeals is reversed and this cause is remanded to that court for further review consistent with this opinion."
(Footnote omitted.)
Finally, both this court and the Alabama Supreme Court have recognized that the decisions in Ex parte Minor and Ex parte Snyder are limited to those cases in which evidence about prior convictions is offered for impeachment purposes. See Johnson v. State, [Ms. 1041313, October 6, 2006] ___ So.3d ___ (Ala. 2006); Ex parte Martin, 931 So.2d 759 (Ala. 2004); Key v. State, 891 So.2d 353 (Ala.Crim.App. 2002).
In this case, the evidence about Waldrop's prior conviction was offered for impeachment purposes, as was the situation in Ex parte Minor and Ex parte Snyder, rather than for other permissible purposes, as was the situation in Johnson, Ex parte Martin, and Key. Thus, we review the trial court's failure to instruct the jury on the proper use of evidence about Waldrop's prior conviction in light of the decisions in Ex parte Minor and Ex parte Snyder.
This case is not materially distinguishable from Ex parte Minor. Both cases involved babies who were shaken, and both Minor and Waldrop made conflicting statements about what happened to the babies. Also, both Minor and Waldrop had prior assault convictions, which they admitted on direct examination. Further, both Minor and Waldrop claimed they acted in self-defense in the prior offenses, and both were accused by the prosecution of minimizing their participation in the prior offenses. Finally, both Minor and Waldrop appealed their convictions, arguing that the trial court did not properly instruct the jury regarding the proper use of prior-conviction evidence.
In this case, the trial court did not instruct the jury that the evidence about Waldrop's prior conviction could not be considered as substantive evidence that he committed the crime charged. See Ex parte Minor. It also did not instruct the jury that the prior conviction could be used solely for the purpose of determining Waldrop's credibility. See Ex parte Snyder. In fact, the trial court did not give the jury any guidanceas to the purposes for which evidence about Waldrop's prior conviction could or could not be used. Therefore, as was the case in Ex parte Minor, the jury could have used the testimony for whatever purpose it desired — to determine Waldrop's credibility or as substantive evidence of Waldrop's guilt. Specifically, the jury could have improperly found that Waldrop intended to kill the victim because he had demonstrated a prior criminal tendency.
Based on the Alabama Supreme Court's decisions in Ex parte Minor and Ex parte Snyder, we conclude that the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Waldrop's prior conviction. We cannot assume that the jury would have understood, without instruction, that it could use evidence about Waldrop's prior conviction only for impeachment. Rather, we must conclude that, under these circumstances, as was the case in Ex parte Minor, the evidence about Waldrop's prior conviction was presumptively prejudicial and its impact was egregious and that the trial court's failure to instruct the jury regarding the proper use of evidence about Waldrop's prior conviction rose to the level of plain error. See also Riley v. State, 48 So.3d 671 (Ala.Crim.App. 2009). Accordingly, we reverse the trial court's judgment and remand this case for proceedings that are consistent with this opinion.
REVERSED AND REMANDED.
WELCH, KELLUM, and MAIN, JJ., concur.
WINDOM, J., dissents, with opinion.