The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JULY 1997 SESSION
September 09, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9607-CR-00230
Appellee, )
) SHELBY COUNTY
VS. )
) Hon. Joseph B. Dailey, Judge
ABRAHAM GALMORE, )
) (Especially Aggravated Robbery and
Appellant. ) Criminally Negligent Homicide)
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General and Reporter
W. MARK WARD (on appeal) ELLEN H. POLLACK
Assistant Public Defender Assistant Attorney General
147 Jefferson, Suite 900 450 James Robertson Parkway
Memphis, TN 38103 Nashville, TN 37243-0493
LOYCE D. LAMBERT (at trial) WILLIAM L. GIBBONS
RONALD S. JOHNSON (at trial) District Attorney General
Assistant Public Defenders
Shelby County Public Defender’s Office TERRELL L. HARRIS
201 Poplar Avenue, Second Floor DAVID C. HENRY
Memphis, TN 38103 Assistant District Attorneys General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Abraham Galmore, was convicted by a Shelby County jury
of especially aggravated robbery and criminally negligent homicide. He was
sentenced as a Career Offender to sixty (60) years and six (6) years, respectively,
for the offenses. Defendant’s sole issue presented on appeal is whether the trial
court erred in ruling that, if defendant chose to testify, the state could impeach him
by inquiring on cross-examination if he had been convicted of an unnamed felony.
The judgment of the trial court is affirmed.
I.
Because defendant does not challenge the sufficiency of the convicting
evidence, only a brief recitation of the facts is necessary. On December 14, 1993,
defendant and James Hathaway entered the Keyport Self-Storage Office in
Memphis. Elbert and Maxine Swartz, who managed the establishment, resided on
the premises. Mr. and Mrs. Swartz were held at gunpoint while defendant and
Hathaway searched the residence for money.
At some point during the incident, Mrs. Swartz was shot, and her throat was
cut. Mr. Swartz was stabbed several times and shot, and his throat was cut. Mrs.
Swartz survived the incident; however, Mr. Swartz was pronounced dead at the
scene.
Defendant and Hathaway left the building with bank bags containing
approximately $3,000, as well as two (2) watches and other jewelry items.
Defendant subsequently confessed to his involvement in the robbery.
After a jury trial, defendant was found guilty of especially aggravated robbery
and criminally negligent homicide. From these convictions, defendant brings this
appeal.
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II.
Defendant’s sole assignment of error is that the trial court erred in ruling that,
if he chose to testify, the state would be allowed to impeach him by inquiring on
cross-examination if he had been convicted of an unnamed felony. He claims that
the jury could only speculate as to what the unnamed felony was, giving no
guidance in their assessment of his credibility. He contends that this ruling was the
basis for his refusal to testify and, therefore, deprived him of his only means of
defending himself against the state’s charges.
Pursuant to Tenn. R. Evid. 609(a)(3), the state gave written notice of its intent
to impeach the defendant with six (6) prior burglary convictions and one (1) prior
robbery conviction. The trial court conducted a hearing prior to trial to determine if
the convictions’ probative value on the issue of credibility outweighed their unfair
prejudicial effect. The trial court ruled that the state would be allowed to use the six
(6) prior burglary convictions for impeachment purposes. Defendant does not
contest this ruling. However, with regard to the robbery conviction, the trial court
stated:
The robbery case -- I agree that robbery is certainly the type of
offense that could be used for impeachment purposes if the
defendant were not on trial for a robbery. In my opinion, to allow the
offense of robbery -- the prior conviction for the offense of robbery --
to get before the jury, at least in that form, would, in all likelihood,
create a situation where the prejudicial effect outweighed any
probative value, . . . So to use that robbery conviction - at least, in that
form - I will not allow.
But what I may allow - and I will have to wait and see -- I will
reserve ruling on this until at least the end of the State’s case - but I
am inclined to allow the use of that conviction simply by asking, “Isn’t
it true that you are the same Abraham Galmore that was convicted of
a felony on September 1, 1992, in indictment 92-02608, and received
a sentence of X years,” or whatever?
That, I think, would allow the State -- or even perhaps a felony
involving -- Well, I might just leave [it] at that, but -- or some wording
to suggest a felony involving honesty or moral turpitude - something
of that -- I will give that some consideration.
...
So I will definitely allow the six burglaries and I will, in all
likelihood, allow the seventh felony - the robbery - but just to be asked
in a different manner, and we can discuss that further as you get
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closer to the close of your proof and Defense begins their
determination as to whether they want to call their client to the stand.1
In State v. Summerall, 926 S.W.2d 272 (Tenn. Crim. App. 1995), this Court
held that it is error to allow the state to impeach the defendant by inquiring whether
he had been convicted of an unnamed felony. 2 In so holding, the court stated that
“a ‘generic’ felony provides inadequate information for the jury to properly weigh its
probative value.” Id. at 277. Thus, allowing the state to mention the “generic” felony
would have little, if any, probative value. Consequently, the undue prejudicial effect
of the unnamed felony outweighs its probative value. Id. However, our Court in
Summerall did not specifically condemn the use of the words “felonies involving
dishonesty.” Id.; see also State v. Ross Jones, C.C.A. No. 01C01-9405-CR-00175
(Tenn. Crim. App. filed February 8, 1995, at Nashville). Based upon Summerall,
however, the admission of a prior conviction of “a felony” without further
identification would have been improper.
Our inquiry does not end here, however. We must now determine whether
the trial court’s ruling was reversible error based upon the record before us. In
order to make this determination, Tenn. R. Evid. 609(a)(3) must be analyzed. Tenn.
R. Evid. 609(a)(3) provides that an accused “need not actually testify at the trial to
later challenge the propriety of the determination.” See State v. Blanton, 926
S.W.2d 953, 959 (Tenn. Crim. App. 1996). This rule is contrary to Fed. R. Evid. 609
as interpreted by Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443
(1984).
In Luce, the United States Supreme Court held that a non-testifying
defendant was not entitled to pursue an appeal on the basis that the trial court erred
in ruling that the state could use a prior conviction to impeach him, should he testify.
The Court noted that an appellate court is “handicapped” from making a
determination whether the prejudicial effect of the proposed impeachment evidence
1
Although it is arguable that this entire issue is waived due to the failure to secure
a definitive ruling from the trial court, subsequently in the trial transcript it appears the trial
court intended to abide by the earlier ruling.
2
In fairness to the trial court, Summerall was not filed until after the trial of this case.
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is outweighed by its probative value when the court does not know the “precise
nature of the defendant’s testimony.” 469 U.S. at 41, 105 S.Ct. at 463. Moreover,
the Court observed that an accused’s decision to testify “seldom turns on the
resolution of one factor,” and an appellate court “cannot assume that the adverse
ruling motivated a defendant’s decision not to testify.” 469 U.S. at 42, 105 S.Ct. at
463. (citing New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 1301, 59
L.Ed.2d 501 (1979)(Blackmun, J., dissenting)).
Several jurisdictions have opted to follow the United States Supreme Court
directive in their state version of Rule 609 by requiring the defendant to testify in
order to properly preserve the issue on appeal. See Smith v. State, 778 S.W.2d
947 (Ark. 1989); State v. Brown, 782 P.2d 1013 (Wash. 1989); Vaupel v. State, 708
P.2d 1248 (Wyo. 1985). Other jurisdictions have refused to follow Luce and allow
a Rule 609 issue to be raised regardless of whether the accused testifies. See
State v. Ford, 381 N.W.2d 30 (Minn. Ct. App. 1986); State v. Whitehead, 517 A.2d
373 (N.J. 1986); People v. Moore, 548 N.Y.S.2d 344 (N.Y. App. Div. 1989);
Commonwealth v. Richardson, 500 A.2d 1200 (Pa. 1985). Yet, other jurisdictions,
while not compelling that the defendant actually testify to preserve the issue for
purposes of appeal, do require that the defendant create an adequate record
concerning the proposed testimony. See Wickham v. State, 770 P.2d 757 (Alaska
Ct. App. 1989); State v. McClure, 692 P.2d 579 (Or. 1984); Hansen v. State, 592
So.2d 114 (Miss. 1991). We find the third view to be the most persuasive.
Tenn. R. Evid. 609(a)(3) allows the accused to raise the admissibility of prior
convictions on appeal without actually testifying at trial; however, we do not believe
that its intent is to mandate reversal whenever the trial court wrongfully rules that a
prior conviction will be admissible if defendant testifies. Otherwise, a defendant with
no intention of testifying could automatically secure a reversal if the trial court
improperly determined that a prior conviction would be admissible. In short, the
ability to raise the issue on appeal without testifying at trial does not necessarily
equate with reversal on appeal.
At least two things must occur before a defendant who does not testify at trial
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can be successful on appeal based upon the trial court’s ruling on the admission of
prior convictions. Firstly, it must appear from the record that the defendant did not
testify “because of an unfavorable ruling on admissibility of a prior conviction.”
Tenn. R. Evid. 609, Advisory Commission Comments. The best method of
addressing this issue is through the testimony of the defendant out of the presence
of the jury. Secondly, the defendant should make an offer of proof as to the
proposed trial testimony so that the appellate court will be able to assess the impact
of the trial court’s ruling. State v. Baxter, 938 S.W.2d 697, 703 (Tenn. Crim. App.
1996); N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence, § 609.9 (3d
ed. 1995). We regret that this procedure can be time-consuming for the already
over-burdened trial courts. Nevertheless, in light of the language of Tenn. R. Evid.
609(a)(3) and the need of our appellate courts to properly assess the impact of the
trial court’s ruling, such a procedure appears to be the only sensible solution.
In the case sub judice, defendant has failed to demonstrate that he was
prejudiced by the trial court’s ruling. Although defendant acknowledged out of the
jury’s presence that he understood the trial court’s prior ruling concerning the
robbery conviction and did not wish to testify, the record is silent as to whether he
intended to testify if the generic felony was not admitted.3 Furthermore, there was
no offer of proof as to his proposed trial testimony. Having failed to demonstrate
prejudice, defendant is not entitled to appellate relief.
In addition, any error was clearly harmless. Tenn. R. App. P. 36(b). The
evidence against the defendant, including his confession, was overwhelming. The
trial court ruled that the state could impeach the defendant with six (6) prior burglary
convictions. It is well-settled that burglary convictions are probative on the issue of
credibility. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995); State
v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993). As such, these convictions
were clearly admissible for impeachment purposes if defendant chose to testify.
Moreover, defendant does not contest the admissibility of these convictions. In the
3
In view of the evidence and the admissibility of six (6) prior burglary convictions,
we sincerely doubt that the proposed admissibility of the generic felony had any impact on
his decision not to testify.
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context of the entire record, we conclude that the trial court’s ruling as to the generic
felony was at most harmless error.
Accordingly, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
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