State of Tennessee v. Marlon Boyd

08/10/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 2, 2018 Session

STATE OF TENNESSEE v. MARLON BOYD

Appeal from the Criminal Court for Shelby County

No. 16-00582 Lee V. Coffee, Judge

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No. W2017-00791-CCA-R3-CD

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Defendant, Marlon Boyd, was convicted of first degree murder, aggravated assault, and

possession of a firearm by a convicted felon. The trial court imposed a total effective

sentence of life without parole plus 30 years. On appeal, Defendant argues (1) that the

trial court erred in denying his motion to sever the count of the indictment alleging

possession of a firearm by a convicted felon from the other charges; (2) that the trial court

abused its discretion in allowing the State to use Defendant’s prior convictions for

impeachment purposes; and (3) that the evidence is insufficient to support his

convictions. Upon our review of the record, we find no reversible error and affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and

J. ROSS DYER, JJ., joined.

Stephen Bush, District Public Defender; Harry E. Sayle III (on appeal), Trent Hall and

Jim Hale (at trial), Assistant Public Defenders, for the appellant, Marlon Boyd.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and Stephen

Ragland, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

Defendant was indicted by the Shelby County Grand Jury for first degree murder,

aggravated assault, and possession of a firearm by a convicted felon. Prior to trial,

Defendant filed a motion to sever Count Three of the indictment, which alleged

possession of a firearm by a convicted felon, from the other counts of the indictment.

The trial court denied the motion for severance but accepted the parties’ stipulation that

Defendant had been convicted of felonies involving the use or attempted use of violence.

At trial, Officer Reginald Kelley of the Memphis Police Department testified that

he responded to a “shots fired” call on Preston Street between 11:45 p.m. and midnight

on May 23, 2014. Officer Kelley discovered the victim, Michael Richard, lying in the

street motionless. No one else was around, and there were no weapons or shell casings

near the victim. Officers canvassed the neighborhood, and while several people reported

hearing a gunshot, including the woman who had called 9-1-1, no one reported having

seen what happened.

The medical examiner, Dr. Erica Curry, performed an autopsy on the victim. The

victim died from a gunshot wound to the left side of his chest. The bullet struck the

victim’s ribs, lungs, and aorta, causing a massive amount of internal bleeding. There was

no exit wound, and Dr. Curry was able to recover a bullet and several fragments from the

victim’s body. Based on the soot and lack of stippling around the entrance wound, Dr.

Curry estimated that the gun was more than three feet away from the victim when it was

fired. Dr. Curry also noted an abrasion on the victim’s back as well as scrapes on his ear,

elbow, and forearm, which were consistent with the victim’s falling after having been

shot. The victim’s toxicology exam was negative for drugs but revealed a blood alcohol

content of .3, over three times the legal limit to drive.

Carlos Lee testified that he lived on Preston Street with his girlfriend and three

children. Mr. Lee testified that he was Defendant’s first cousin and that several of their

family members also lived on Preston Street. Defendant’s mother lived just around the

corner from Preston Street, and Defendant was on Preston Street almost every day even

though he did not live there himself. Mr. Lee lived three houses down from the victim,

and they had been neighbors for about three or four years.

On Friday, May 23, 2014, Mr. Lee came home from work around 3:00 p.m. and

saw Defendant on the street. Mr. Lee spent the rest of the afternoon running errands.

That evening, Mr. Lee joined several people, including Defendant and the victim,

“drinking [and] hanging out” on the street in front of Mr. Lee’s uncle’s house, which was

next door to the victim’s house. Mr. Lee drank some beer but denied that he was

intoxicated. Mr. Lee recalled the victim’s going back and forth between his house and

the gathering on the street.

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Sometime after 11:00 p.m., after several others had left the street gathering, Mr.

Lee drove his car back down the street to his house. He parked the car on the street and

started up the steps toward his house. The area was well-lit by the streetlights. Mr. Lee

saw Defendant walking down the street alone in the direction of Mr. Lee’s house. Mr.

Lee then saw the victim walking down a hill from the victim’s house at an angle. When

the victim caught up with Defendant, the two had a conversation while standing in the

street in front of Mr. Lee’s driveway. Mr. Lee could not hear what the men were talking

about, but he denied that it sounded like an argument. Instead, he characterized it as

“drunk talk” and testified that both the victim and Defendant seemed intoxicated.

As Mr. Lee continued up the steps to his house, he heard a gunshot. Mr. Lee

turned around and saw Defendant standing over the victim pointing what appeared to be a

revolver at him. Mr. Lee heard Defendant tell the victim, “Die, bitch!” The victim was

lying motionless on the ground, and Mr. Lee believed that he was dead. Defendant then

pointed the gun at Mr. Lee and said, “If you say something, I’m going to kill you, too.”

Mr. Lee testified that he was “scared to death.” Mr. Lee went into his house as

Defendant walked up the street.

Mr. Lee did not call the police and did not tell the police who were canvassing the

neighborhood that night what he saw because he was scared. However, Sergeant Eric

Kelly came to his house later the next day, and Mr. Lee eventually told him what

happened. Sergeant Kelly described Mr. Lee as extremely nervous and “deathly

frightened” that Defendant would follow through on his threat. Mr. Lee identified

Defendant in a photospread and provided a written statement. Mr. Lee testified that he

had not seen Defendant with a gun earlier that evening at the street gathering but that he

had seen Defendant carrying a gun in the past. Mr. Lee subsequently moved away from

that neighborhood because he was terrified for the safety of himself, his girlfriend, and

his children.

Sergeant Kelly prepared an arrest warrant for Defendant and determined that he

might be located at the apartment of his girlfriend, Jaqueline Benson, about one mile

from the crime scene. Late Sunday morning, May 25, 2014, Sergeant Kelly and a team

of other officers arrived at the apartment to serve the arrest warrant. Sergeant Kelly

could hear a television and people talking inside the apartment. Sergeant Kelly knocked

on the door and announced “police.” After he knocked, Sergeant Kelly heard “a loud

thump, like . . . someone large was moving through the apartment, and [he] hear[d] a

door close.” The front door of the apartment was opened by Ms. Benson. Ms. Benson’s

brother, Derrick Watts, and several children were also inside the apartment. Ms. Benson

told the officers that Defendant was there and that he had gone to one of the back

bedrooms. After everyone else had exited the apartment, Sergeant Kelly yelled for

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Defendant to come out for several minutes. Defendant eventually came out of the

bedroom with his hands in the air and was arrested without incident.

Sergeant Kelly spoke to Ms. Benson and determined that she was the leaseholder

of the apartment. Ms. Benson told Sergeant Kelly that Defendant always had a gun and

that she knew it was a .357 caliber revolver. Sergeant Kelly obtained consent to search

the apartment from Ms. Benson. The room that Defendant had been in was set up as a

music room and contained recording equipment, men’s clothing, and several beer cans

strewn about. Sergeant Kelly did not recall seeing any children’s clothing, cosmetics, or

perfume in the room, though he did see a lady’s handbag hanging on the closet door.

Inside the closet under a pile of clothing, the police found two guns. One was a Ruger

.357 Magnum revolver with six live .38 caliber rounds and the other was a Smith &

Wesson .38 caliber revolver with five live rounds and one spent casing at the “12:00

position,” which is at the top by the firing pin.

Ms. Benson testified that she lived in the apartment with Defendant and her three

teenaged children. Ms. Benson and Defendant had been together for about five years,

and Defendant used to live on Preston Street before he moved in with her. However,

Defendant would stay at the apartment for only a few days at a time and then would often

be gone for several days. Ms. Benson characterized the room containing the music

equipment as “Marlon’s room” and explained that no one else was allowed to go into that

room. However, Ms. Benson admitted that she did keep a few clothes and toiletries in

that room and shared the closet. The children all shared the second bedroom, and Ms.

Benson usually slept in the living room.

Ms. Benson recalled that on Friday, May 23, 2014, she arrived home around 10:00

p.m. and that Defendant did not arrive home until around 1:00 a.m. Ms. Benson testified

that sometime after this incident, someone called her and told her to say that Defendant

was with her at the time the victim was killed. However, Ms. Benson stated that

Defendant was not with her and that she was not going to lie for anyone.

On Sunday, May 25, 2014, Mr. Watts came over to his sister’s apartment with his

young daughter to have her hair braided by a neighbor. Ms. Benson sat on the couch

drinking a beer with her brother and Defendant. Mr. Watts’s daughter was in the

bedroom shared by Ms. Benson’s children where Ms. Benson’s daughter, Nadaizha

Watts, was asleep. No one went into the room with the music equipment. When the

police knocked, Defendant got up from the couch quickly and went to the back bedroom.

Everyone came out of apartment when told to by the police except for Defendant.

Ms. Benson knew that Defendant carried a gun since she had met him. She knew

his gun to be a .357 revolver and that he kept it on his hip or in a dresser. Ms. Benson

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had never seen the other revolver found in the closet. Nadaizha Watts testified that she

had seen a gun handle poking out of Defendant’s pants on his hip “all the time.” Mr.

Watts also testified that he had often seen Defendant with a black revolver. Mr. Watts,

who did not tell the police about his felony theft conviction, denied owning or being

around any guns and denied going into the back bedroom. Mr. Watts, Ms. Benson, and

Nadaizha Watts all went to the police station together to give statements, though they

denied discussing the incident on the way there.

The guns recovered from the closet as well as the bullet and fragments recovered

from the victim’s body were sent to the Tennessee Bureau of Investigation. No

fingerprints were found on either gun. Special Agent Cervinia Braswell, a firearms

examiner, testified that the .357 caliber revolver was in non-operating condition due to a

bent extractor, the rod upon which the cylinder spins. The .38 caliber revolver was in

working condition. Agent Braswell explained that a .357 caliber gun can fire .38 caliber

bullets. Agent Braswell testified that the bullet recovered from the victim was consistent

with either a .38 or .357 caliber bullet based on its weight. Agent Braswell examined the

class characteristics of the bullet and determined that it was not consistent with the .357

caliber revolver but was consistent with the .38 caliber revolver. However, Agent

Braswell was unable to determine if the bullet was fired by the .38 caliber revolver

recovered in this case because the bullet was too damaged and the gun did not produce

enough individual characteristics.

At the conclusion of the State’s proof, the jury went to the scene on Preston Street.

As discussed further below, the trial court determined during a jury-out hearing that if

Defendant were to testify and credibility were to become an issue, then his prior

convictions for second degree murder, attempted first degree murder, aggravated assault,

and aggravated robbery would become admissible. Defendant elected not to testify or put

on any proof. The jury convicted Defendant as charged of the first degree murder of

Michael Richard, of the aggravated assault of Carlos Lee, and of possession of a firearm

by a convicted felon. After a sentencing hearing, the trial court sentenced Defendant to

life without parole as a repeat violent offender pursuant to Tennessee Code Annotated

section 40-35-120 for first degree murder, as well as to consecutive sentences of fifteen

years each for aggravated assault and possession of a firearm by a convicted felon. After

the trial court denied Defendant’s motion for a new trial, Defendant filed a timely notice

of appeal.

Analysis

I. Sufficiency of the Evidence

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Defendant argues that the evidence adduced at trial is not sufficient for a rational

trier of fact to find him guilty of premeditated first degree murder beyond a reasonable

doubt.1 Defendant contends that the State failed to prove that he acted with

premeditation because Mr. Lee “did not see the actual shooting” or the interaction

between the victim and Defendant “immediately prior to the fatal shot.” Additionally,

Defendant contends that “there was no dispositive connection between the .38 revolver

found at the home of Ms. Jacqueline Benson and the .38 revolver that fired the bullet

recovered from the body of [the victim].” The State responds that “[t]he evidence

strongly supports the jury’s determination that the [D]efendant killed the victim, acting

with intent and premeditation.” We agree with the State.

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The jury’s verdict

replaces the presumption of innocence with one of guilt; therefore, the burden is shifted

onto the defendant to show that the evidence introduced at trial was insufficient to

support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The relevant

question is whether any rational trier of fact could have found the accused guilty of every

element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson

v. Virginia, 443 U.S. 307, 319 (1979). Questions concerning the “‘credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the

proof are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d

289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).

The prosecution is entitled to the “‘strongest legitimate view of the evidence and to all

reasonable and legitimate inferences that may be drawn therefrom.’” State v. Goodwin,

143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.

2000)). “‘A guilty verdict by the jury, approved by the trial court, accredits the testimony

of the witnesses for the State and resolves all conflicts in favor of the prosecution’s

theory.’” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997)). It is not the role of this Court to reweigh or reevaluate the evidence, nor to

substitute our own inferences for those drawn from the evidence by the trier of fact. Id.

The standard of review is the same whether the conviction is based upon direct evidence,

circumstantial evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370,

379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

First degree murder is the premeditated and intentional killing of another person.

T.C.A. § 39-13-202(a)(1). A person acts intentionally “when it is the person’s conscious

objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-11-

1

Defendant does not challenge the sufficiency of the evidence supporting his convictions for

aggravated assault or possession of a firearm by a convicted felon.

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106(a)(18). Premeditation is defined as “an act done after the exercise of reflection and

judgment.” Id. § 39-13-202(d). This section further defines premeditation as follows:

“Premeditation” means that the intent to kill must have been formed prior

to the act itself. It is not necessary that the purpose to kill pre-exist in the

mind of the accused for any definite period of time. The mental state of the

accused at the time the accused allegedly decided to kill must be carefully

considered in order to determine whether the accused was sufficiently free

from excitement and passion as to be capable of premeditation.

Id.

The State must establish the element of premeditation beyond a reasonable doubt.

See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn.

1999). Premeditation may be proved by circumstantial evidence. See, e.g., State v.

Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992). The existence of premeditation is a

question of fact for the jury and may be inferred from the circumstances surrounding the

killing. State v. Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d

252, 261 (Tenn. 2000). Such circumstances include, but are not limited to, the use of a

deadly weapon upon an unarmed victim, the particular cruelty of the killing, the infliction

of multiple wounds, threats or declarations of an intent to kill, a lack of provocation by

the victim, failure to aid or assist the victim, the procurement of a weapon, preparations

before the killing for concealment of the crime, destruction and secretion of evidence of

the killing, and calmness immediately after the killing. State v. Kiser, 284 S.W.3d 227,

268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson,

121 S.W.3d 600, 615 (Tenn. 2003); Bland, 958 S.W.2d at 660.

In the light most favorable to the State, the evidence shows that Defendant shot

and killed Michael Richard in the street in front of Carlos Lee’s house. Even though Mr.

Lee did not actually see Defendant pull the trigger, he saw the victim and Defendant

engage in a conversation, heard a gunshot while his back was briefly turned, and saw

Defendant standing over the victim’s motionless body while pointing a revolver and

saying, “Die, bitch!” Defendant then turned the revolver on Mr. Lee and threated to kill

him if he told anyone what happened. Defendant’s statements can be seen as a

declaration of an intent to kill, supporting the jury’s finding of premeditation. From Mr.

Lee’s description of the victim’s and Defendant’s conversation as “drunk talk” rather

than an argument, the jury could find that Defendant acted unprovoked by the victim. No

weapons were found around the victim’s body, supporting a finding that Defendant used

a deadly weapon against an unarmed victim. Additionally, when the police later went to

arrest Defendant at Ms. Benson’s apartment, he reluctantly came out of a back bedroom

where two revolvers were hidden under a pile of clothes, one of which bore similar class

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characteristics to the bullet recovered from the victim’s body. The destruction or

secretion of evidence also supports a finding of premeditation. The fact that the bullet

could not be more definitively linked to the recovered revolver is inconsequential given

the circumstantial evidence that Defendant used a revolver of that caliber to shoot the

victim. The evidence overwhelmingly supports the jury’s verdict that Defendant was

guilty of first degree murder, as well as aggravated assault and possession of a firearm by

a convicted felon.

II. Motion to Sever

Defendant argues that the trial court erred in denying his motion to sever Count

Three of the indictment, which charged possession of a firearm by a convicted felon,

from the other counts of the indictment. A trial court’s decision to join or sever offenses

is reviewed on appeal for an abuse of discretion. State v. Shirley, 6 S.W.3d 243, 247

(Tenn. 1999). A trial court’s denial of a motion to sever offenses will be reversed on

appeal only when the trial court “applied an incorrect legal standard, or reached a

decision which is against logic or reasoning that caused an injustice to the party

complaining.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)); see also

State v. Goodwin, 143 S.W.3d 771, 780 (Tenn. 2004).

Joinder of offenses may either be mandatory or permissive. See Tenn. R. Crim. P.

8(a), (b). “Two or more offenses must be joined or consolidated if (1) the offenses arise

from the same conduct or criminal episode; (2) the conduct is known to the appropriate

prosecuting official at the time of the return of the indictment; and (3) the offenses fall

within the jurisdiction of a single court.” State v. Baird, 88 S.W.3d 617, 620 (Tenn.

Crim. App. 2001) (citing Tenn. R. Crim. P. 8(a)). Offenses are part of the “same

conduct” when “a single act . . . results in a number of interrelated offenses.” State v.

Johnson, 342 S.W.3d 468, 473 (Tenn. 2011). Offenses are part of the “same criminal

episode” when they “occur simultaneously or in close sequence,” “occur in the same

place or in closely situated places,” and “proof of one offense necessarily involves proof

of the others.” Id. at 475 (internal quotations and citations omitted). The Advisory

Commission Comments to Tennessee Rule of Criminal Procedure 8 provide:

This rule is designed to encourage the disposition in a single trial of

multiple offenses arising from the same conduct and from the same

criminal episode, and should therefore promote efficiency and economy.

Where such joinder of offenses might give rise to an injustice, Rule

14(b)(2) allows the trial court to relax the rule.

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Rule 14 allows a trial court to sever mandatorily joined offenses before trial if appropriate

to promote a fair determination of the defendant’s guilt or innocence. See Tenn. R. Crim.

P. 14(b)(2)(A).

Prior to trial, Defendant filed a motion to sever Count Three of the indictment,

which charged possession of a firearm by a convicted felon, from the remaining counts.

Defendant argued that the recitation of his prior convictions for violent felonies would

predispose the jury to finding him guilty based upon propensity. Defendant asserted that

the offenses did not qualify for mandatory joinder because his possession of the revolvers

at the time of his arrest was not part of the same conduct or criminal episode as the

murder and assault thirty-six hours earlier. Defendant relies on the Tennessee Supreme

Court’s opinion in Johnson, which held that mandatory joinder did not apply to the

offenses of aggravated robbery and filing a false police report that occurred twelve hours

apart. See Johnson, 342 S.W.3d at 476. However, Count Three did not merely allege

Defendant’s possession of the revolvers at the time that he was arrested. The indictment

indicates that the possession occurred “between May 22, 2014 and May 25, 2014,”

embracing both the date of the arrest and the date of the shooting. Defendant’s

possession of a firearm constitutes part of the same conduct or criminal episode as the

other counts in the indictment because he necessarily had to possess a firearm in order to

shoot Mr. Richard and threaten Mr. Lee with it. Therefore, the trial court was correct in

determining that these offenses were mandatorily joined under Rule 8(a).

As to Defendant’s assertion that the recitation of his prior convictions as listed in

Count Three would unfairly prejudice the jury, the trial court allowed Defendant to

stipulate that he had been convicted of felonies involving the use or attempted use of

violence without specifically enumerating those felonies. Additionally, the trial court

instructed the jury that it may consider the stipulation only as it related to the elements of

possession of a firearm by a convicted felon and for no other purpose. On appeal,

Defendant argues that this stipulation “did not cure the prejudice to [Defendant’s] right to

a fair trial.” This Court has explained that where joinder of offenses is mandatory, “the

relevant inquiry is whether severance of the possession of a [firearm] by a convicted

felon charge was necessary ‘to promote a fair determination of [Defendant’s] guilt or

innocence of each offense.’” State v. Martin Boyce, No. W2012-00887-CCA-R3-CD,

2013 WL 4027244, at *12 (Tenn. Crim. App. Aug. 6, 2013), no perm. app. filed; see

Tenn. R. Crim. P. 14(b)(2). As in Martin Boyce, the trial court in this case properly

instructed the jury, and the jury is presumed to follow the instructions of the court. See

id. at *12-13 (citing State v. Banks, 271 S.W.3d 90, 134 (Tenn. 2008)). Moreover, the

evidence against Defendant was strong, given the uncontroverted eyewitness testimony

of Mr. Lee. We conclude that the trial court did not abuse its discretion in denying

Defendant’s motion to sever Count Three of the indictment.

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III. Impeachment by Prior Convictions

Finally, Defendant argues that the trial court abused its discretion in allowing the

State to use Defendant’s prior convictions for impeachment purposes. Tennessee Rule of

Evidence 609 permits impeachment of a witness, including a defendant, by prior

convictions. The conviction must be for a felony or for a crime involving dishonesty or

false statement. Tenn. R. Evid. 609(a)(2). Generally, a conviction will not be admissible

if more than ten years has passed since the person was released from confinement. Tenn.

R. Evid. 609(b). The State must give reasonable written notice prior to trial of any

convictions it intends to use against a defendant. Tenn. R. Evid. 609(a)(3). Upon

request, the trial court must determine prior to the defendant’s testifying whether “the

conviction’s probative value on credibility outweighs its unfair prejudicial effect on the

substantive issues.” Id. If the court rules that the conviction is admissible to impeach the

defendant, the defendant need not testify at trial in order to challenge the court’s ruling on

appeal. Id. On appeal, this Court will review the trial court’s determination for an abuse

of discretion. State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000).

In this case, Defendant had prior convictions for second degree murder, attempted

first degree murder, aggravated robbery, and aggravated assault, for which he was

released from confinement in September 2008, and possession of a handgun by a

convicted felon, for which he was released in July 2013. On appeal, Defendant concedes

that he received proper notice from the State,2 that the convictions were for qualifying

crimes, and that his release dates were within the ten-year limit. Defendant also concedes

that the trial court correctly ruled that his conviction for aggravated robbery was

admissible because it was a crime involving dishonesty. See State v. Blevins, 968 S.W.2d

888, 893 (Tenn. Crim. App. 1997) (noting that robbery is a crime of dishonesty, “thus

lending greater weight to [its] probative value regarding credibility”). Defendant

contends, however, that the trial court erred in determining that the probative value of his

convictions for second degree murder, attempted first degree murder, and aggravated

assault outweighed their potential prejudicial effect.3

In determining the admissibility of a conviction as impeachment evidence against

a defendant, “[t]wo criteria are especially relevant . . . : (1) the impeaching conviction’s

relevance as to credibility; and (2) the impeaching conviction’s similarity to the charged

2

While there is no written notice in the technical record, the State filed a motion on June 17,

2016, to incorporate motions previously filed under the original indictment into the superseding

indictment, including an “impeachment notice” filed on February 15, 2015. The trial court, in ruling on

the issue, also found that the State had filed the proper notice.

3

Defendant does not address the trial court’s ruling with regard to his conviction for possession

of a handgun by a convicted felon.

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offense.” State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003) (citing State v. Mixon, 983

S.W.2d 661, 674 (Tenn. 1999)). While Rule 609 “suggests that the commission of any

felony is ‘generally probative’ of a criminal defendant’s credibility,” our supreme court

has “rejected a per se rule that permits impeachment by any and all felony convictions.”

Id. (internal citations omitted). “To determine how probative a felony conviction is to the

issue of credibility, the trial court must assess whether the felony offense involves

dishonesty or false statement.” Id. (citing State v. Walker, 29 S.W.3d 885, 890 (Tenn.

Crim. App. 1999)). Crimes of violence may have some probative value as to credibility

because they “reflect on the moral character of a witness.” Thompson, 36 S.W.3d at 111

(quoting State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996)). However,

“the linkage is not as palpable as when the impeaching crime involves deceit or

dishonesty.” Id. at 112. As this Court has previously noted, “‘the link between [violent]

crime and truthfulness is, at best, weak and the potential prejudice is significant.’” State

v. Garry Baker, No. M2016-01164-CCA-R3-CD, 2017 WL 1534993, at *10 (Tenn.

Crim. App. Apr. 28, 2017) (quoting Neil P. Cohen et al., Tennessee Law of Evidence §

6.09[10][c] (6th ed. 2011)), no perm. app. filed.

Once the trial court determines the probative value of the impeaching conviction

on the issue of the defendant’s credibility, “it should next ‘assess the similarity between

the crime on trial and the crime underlying the impeaching conviction.’” Waller, 118

S.W.3d at 373 (quoting Mixon, 983 S.W.2d at 674). The potential for unfair prejudice

greatly increases when the impeaching conviction is substantially similar to the crime for

which the defendant is being tried because “a danger exists that jurors will improperly

consider the impeaching conviction as evidence of the propensity of the defendant to

commit the crime.” Id. However, evidence of a substantially similar prior conviction is

not per se inadmissible, and a trial court must carefully balance the conviction’s probative

value as to credibility against its potential prejudicial effect. Id. (citing State v. Galmore,

994 S.W.2d 120, 122 (Tenn. 1999); Mixon, 983 S.W.2d at 674). “[E]vidence of

convictions for the same type of crime should be admitted sparingly because of the

impression on jurors that if a person committed a crime in the past, he committed the

offense for which he is on trial.” State v. Russell, 382 S.W.3d 312, 317 (Tenn. 2012).

In this case, with regard to Defendant’s prior convictions for second degree

murder, attempted first degree murder, and aggravated assault, the trial court noted that

the “[c]ase law is . . . clear that those crimes that involve violence or are of an assaultive

nature generally have little or no bearing on honesty or veracity, and that those cases are

not necessarily admissible for impeachment purposes.” However, the trial court found

that if Defendant testified, his credibility would almost certainly be at issue and

determined that “if the issue in this case becomes strictly of credibility, this [c]ourt will

find that the probative value of those convictions are [sic] not outweighed.” The trial

court ruled,

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the State of Tennessee would be able to ask [Defendant] about the murder

second conviction, the criminal attempt first degree murder, the aggravated

assault, and also the convicted felon in possession of a handgun, if the only

issue about his testimony does, in fact, become credibility, and the State

will be able to impeach [Defendant] on those convictions because the issue

of credibility would, in fact, be paramount, and I will find that the probative

value of those prior convictions outweighs any unfair prejudicial effect

pursuant to Mixon, and the issue would not be propensity that those

convictions would be allowed to be asked pursuant to [Rule] 609.

The trial court noted that it was “balancing any harmful effect that a jury will be told that

[Defendant] has five felony convictions on his record, balancing that with the issue of

credibility.” The trial court stated that it would instruct the jury that it could only

consider the prior convictions for their effect on Defendant’s credibility as it had done

with Mr. Watts’s testimony that he had a prior conviction for felony theft. The trial court

clarified that “if [Defendant] is able to take the witness stand and not put his credibility at

issue, then the only conviction the State will be able to ask about would be the aggravated

robbery.”

While the trial court repeatedly stated that the Defendant would almost certainly

place his credibility at issue if he testified and that credibility in this case was

“paramount,” the trial court never explained on the record how Defendant’s prior

convictions for second degree murder, attempted first degree murder, and aggravated

assault were relevant to the issue of credibility other than recognizing that such crimes

“generally have little or no bearing on honesty or veracity.” Moreover, the trial court did

not assess the similarity between the prior convictions and the crimes for which

Defendant was on trial in order to determine their potential prejudicial effect. Because

Defendant’s prior convictions were for crimes of violence, they had some probative value

as to credibility, but it was minimal. See Thompson, 36 S.W.3d at 111. Additionally,

because the prior convictions were identical to the crimes for which Defendant was on

trial, the danger that the jurors might erroneously consider the prior convictions as

propensity evidence was particularly great. See Mixon, 983 S.W.2d at 674. Therefore,

the probative value of Defendant’s convictions for second degree murder, attempted first

degree murder, and aggravated assault did not outweigh their potential unfair prejudicial

effect. Thus, the trial court erred in ruling that Defendant’s prior convictions for second

degree murder, attempted first degree murder, and aggravated assault would be

admissible for impeachment purposes.

Next, we must “consider whether the error in this case affirmatively or more

probably than not affected the judgment to [the defendant’s] prejudice.” Waller, 118

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S.W.3d at 374 (citing Tenn. R. App. P. 36(b); Galmore, 994 S.W.2d at 125). When

undertaking a harmless error analysis, this Court must consider whether “an error more

probably than not had a substantial and injurious impact on the jury’s decision-making.”

State v. Rodriquez, 254 S.W.3d 361, 372 (Tenn. 2008). “In assessing the harmlessness of

the error, we do not consider whether the defendant would have testified but for the

erroneous ruling—nor whether he would have declined to testify had the trial court

excluded the murder and aggravated assault convictions but correctly allowed

impeachment via the [aggravated robbery] conviction[].” Thompson, 36 S.W.3d at 112

(citing Galmore, 994 S.W.2d at 124-25). Instead, this Court must examine the “theory of

the defense”—gleaned from the arguments of counsel, the evidence presented in the

defendant’s case-in-chief, and the cross-examination of the State’s witnesses—to

determine “whether the erroneous impeachment would have had an impact on the result

of the trial.” Id.; see also State v. Lankford, 298 S.W.3d 176, 182-83 (Tenn. Crim. App.

2008). While a defendant is not required to make an offer of proof as to what his

testimony would be, our supreme court has recognized that, “[d]epending on the facts and

circumstances of a case, an offer of proof may be the only way to demonstrate prejudice.”

Galmore, 994 S.W.2d at 125.

In this case, Defendant does not contest his presence on Preston Street or his

interaction with the victim as described by Mr. Lee. Instead, Defendant points out in his

appellate brief that Mr. Lee did not see the actual shooting and could not hear the

substance of Defendant’s conversation with the victim. Defendant argues that without

his testimony as “the only living witness to the shooting,” “[i]t is unknown what

happened or what was said immediately prior to the shot—whether Mr. Richard attacked

[Defendant] or provoked him sufficiently to qualify for second degree murder or

voluntary manslaughter.” However, Defendant presented no proof or argument at trial

suggesting a self-defense or provocation theory. Even on appeal, Defendant does not

actually assert that the substance of his testimony would have been that the victim

attacked or provoked him, merely that it is “unknown” whether such happened. This

theory of defense on appeal, which seemingly admits Defendant’s identity as the shooter,

is markedly different from his theory of defense at trial, which focused instead on the fact

that neither of the revolvers found in the bedroom in Ms. Benson’s apartment could be

conclusively identified as the murder weapon, on Defendant’s contention that he did not

have exclusive control of that bedroom to establish that he possessed those revolvers, and

on the State’s alleged failure to prove premeditation. Defendant even briefly suggested in

closing argument that Mr. Lee could have shot the victim. Thus, without either a proffer

of what Defendant’s testimony would have been or a clear theory of defense that would

render such a proffer a mere “formality,” see Thompson, 36 S.W.3d at 113, Defendant

has failed to prove how he was prejudiced by the trial court’s erroneous ruling.

Moreover, had Defendant testified, he would have been properly impeached with his

conviction for aggravated robbery, and the trial court would have given the jury a

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limiting instruction that would have “‘provided an adequate safeguard against any

potential prejudice possibly engendered by the admission of the prior conviction.’” See

State v. Tarrence Parham, No. W2009-00709-CCA-R3-CD, 2010 WL 2898785, at *8-9

(Tenn. Crim. App. July 26, 2010) (quoting Lankford, 298 S.W.3d at 182) (finding the

erroneous admission of a reckless homicide conviction harmless when the defendant was

also impeached by burglary and theft convictions), perm. app. denied (Tenn. Nov. 10,

2010). We conclude that the trial court’s error in ruling that Defendant’s convictions for

second degree murder, attempted first degree murder, and aggravated assault would be

admissible for impeachment purposes was harmless. Defendant is not entitled to relief.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court.

____________________________________

TIMOTHY L. EASTER, JUDGE

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