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
1
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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