State v. Taylor

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

(HEARD AT SAVANNAH)

FILED

June 1, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

FOR PUBLICATION

Filed: June 1, 1999

STATE OF TENNESSEE, )

)

APPELLEE, ) SHELBY CRIMINAL

)

v. ) Hon. James C. Beasley, Jr.

)

RAY L. TAYLOR, ) No. 02S01-9809-CR-00089

)

APPELLANT. )

FOR APPELLANT: FOR APPELLEE:

MARK A. MESLER PAUL G. SUMMERS

Memphis Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

MICHAEL J. FAHEY, II

Assistant Attorney General

Nashville

OPINION

COURT OF CRIMINAL APPEALS AFFIRMED HOLDER, J.

OPINION

We granted this appeal to decide whether a defendant’s credibility may be

impeached by reference to a prior conviction for a “felony involving dishonesty.”

We hold that the trial court erred in ruling that the State could impeach the

defendant by asking him whether he had been convicted of any “felonies

involving dishonesty.” We hold, however, that the error was harmless. 1

BACKGROUND

Pamela Mosley returned home from work on March 2, 1995, and

discovered that her front door had been pried open and her bedroom had been

ransacked. Various items were missing, including a large amount of jewelry, a

coin collection, several handguns, and a blue duffel bag. Two of Mosley’s

neighbors saw the defendant, Ray L. Taylor, enter Mosley’s house that morning.

After approximately ten or fifteen minutes, the defendant left the house carrying

a brown box and a blue duffel bag. He drove away in an older-model Cadillac.

The neighbors provided the police with a description of the Cadillac and its

license plate number. The defendant was driving an older-model Cadillac

matching the description and tag number when he was arrested the following

day. The missing items were valued at $7,000 and were never recovered.

The defendant had seven prior burglary convictions and one prior larceny

conviction. The trial court initially ruled that these convictions were not

admissible for impeachment purposes because, given their similarity to the

offenses charged, the prejudicial effect of the prior convictions outweighed their

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Ora l argu me nt wa s hea rd in th is cas e on A pril 15 , 199 9, in S avan nah , Har din C oun ty,

Tenn essee , as part of this Cou rt's S.C.A .L.E.S. ( Supreme Court Advancing Lega l Education for

Students ) project.

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probative value. See Tenn. R. Evid. 609(a)(3). After the prosecutor presented

research on the issue, the trial court reconsidered its ruling and concluded that

the State could impeach the defendant by referring to his prior convictions as

“felonies involving dishonesty.” The defendant chose not to testify and

presented no evidence at trial. The jury convicted him of one count of

aggravated burglary and one count of theft of property valued at between $1,000

and $10,000. The trial court sentenced him as a Range III persistent offender to

concurrent sentences of twelve years. The Court of Criminal Appeals affirmed

the judgment of the trial court.

ANALYSIS

Pursuant to the procedures and conditions set forth in Tenn. R. Evid.

609(a), a defendant’s credibility may be impeached by presenting “evidence” of a

prior conviction. The rule does not delineate what facts about the prior

conviction and the underlying crime may be introduced. Prior to January 1,

1990, the effective date of the Tennessee Rules of Evidence, the admissibility of

a prior conviction for impeachment purposes was governed by this Court’s ruling

in State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). In Morgan, this Court held

that evidence of a defendant’s prior conviction must be “limited to the fact of a

former conviction and of what crime, with the object only of affecting the

credibility of the witness, not prejudicing the minds of the jury as to the guilt of

the defendant witness of the crime for which he is on trial.” Id. at 389 (citation

omitted). As the Advisory Commission Comments note, “Rule 609(a) takes

Morgan at face value.” Thus, “evidence” of a prior conviction admissible under

Rule 609(a) is limited to the fact of a former conviction and the crime that was

committed.

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Recently, this Court held that limiting reference to a prior conviction as “a

felony” without further identification is improper. State v. Galmore, ___ S.W.2d

___ (Tenn. 1999). In Galmore, the defendant’s prior conviction for robbery was

similar to the charged offenses. Noting that the trial court had attempted to

minimize the prejudicial impact by allowing impeachment by reference to an

unnamed felony conviction, the Court stated:

Not identifying the felony, however, would permit a jury to speculate

as to the nature of the prior conviction. State v. Barnard, 899

S.W.2d 617, 622 (Tenn. Crim. App. 1994). Furthermore,

instructing the jury on an unnamed felony would provide

inadequate information for a jury to properly weigh the conviction’s

probative value as impeaching evidence. Summerall, 926 S.W.2d

at 277. We hold that the proper application of the balancing test

under Tenn. R. Evid. 609(a)(3) requires identification of the prior

conviction.

Id. at ___.

In the case now before us, we are presented with the issue of whether

referring to a prior conviction as a “felony involving dishonesty” is sufficient

identification for purposes of Tenn. R. Evid. 609(a)(3). The rule does not provide

for impeachment by use of this reference. Rule 609 is based on the premise that

the trier of fact needs to be informed about prior convictions in order to evaluate

a witness’ credibility. The degree to which the impeaching conviction is probative

of untruthfulness can vary with the nature of the offense, even with felonies

involving dishonesty. Furthermore, most jurors have no distinct sense of the

range of offenses connoted by the term “felonies involving dishonesty.”

Identifying the nature of the prior conviction avoids confusion and speculation on

the part of the jury and permits the jury to properly evaluate the conviction’s

probative value on the issue of credibility. We therefore hold that the offense

must be identified to the finder of fact when a prior conviction is used for

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impeachment purposes pursuant to Rule 609(a)(3). Accordingly, the trial court

erred in allowing the State to impeach the defendant by asking whether he had

been convicted of any “felonies involving dishonesty.”

The defendant is not entitled to relief, however, unless the error

affirmatively or more probably than not affected the judgment to the defendant’s

prejudice. Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b); Galmore, ___

S.W.2d at ___. There is nothing in the record and the defendant presents no

argument concerning the substance of his contemplated testimony. The

defendant has articulated no theory of defense for which his testimony was

critical. Cf. State v. Mixon, 983 S.W.2d 661, 675 (Tenn. 1999) (holding that

improper use of impeaching conviction constituted reversible error in sex crimes

case which was reduced to swearing contest between defendant and victim, his

thirteen-year-old daughter). The defendant did not make an offer of proof as to

his proposed testimony. See Galmore, ___ S.W.2d at ___ (holding that an offer

of proof is not required in order to preserve the issue for review but that it may be

the only way to demonstrate prejudice). In sum, the defendant has failed to

demonstrate how he was prejudiced by the trial court’s erroneous ruling which

would have allowed impeachment by reference to “felonies involving dishonesty.”

We hold, therefore, that the error was harmless.

CONCLUSION

The trial court erred in ruling that the State could impeach the defendant

by asking whether he had been convicted of any “felonies involving dishonesty.”

Under the facts and circumstances of this case, the error was harmless.

Accordingly, the judgment of the Court of Criminal Appeals is affirmed. It

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appearing that the defendant is indigent, costs of this appeal shall be taxed to

the State.

JANICE M. HOLDER, JUSTICE

Concurring:

Anderson, C.J.

Drowota, Birch, and Barker, J.J.

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