# FILED
March 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9701-CC-0 0006 ) ) Houston County v. ) ) Allen W. Wallace , Judge ) ) (Aggravated Burg lary and Theft) BRIAN FELTS, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: R. Todd Hansrote John Knox Walkup Attorney at Law Attorney General & Repor ter 1 Public Square, Suite 400 425 Fifth Avenue, North Clarksville, TN 37

040 Nashville, TN 37243 Ellen H. Pollack Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Dan M. Alsobrooks District Attorney General P.O. Box 580 Charlotte, TN 37036-0580 George C. Sexton Assistant District A

ttorney General Humphreys County Courthouse Waverly, TN 37185

OPINION FILED:______________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Brian Felts (defendant), was convicted of theft , a Class D felony, and aggravatedburglary, a Class C felony, by a ju ry of his peers. The trial court, findi ng the defendant to be a multiple offender, imposed the f ollowing Range II sentences: (a) for theft,
c o nfinement for four (4) years in the Department of Correction and (b ) for aggravated burglary, confinement for eight (8) y ears in the Department o f Correctio n. These two sentence s are to be served concurr ently, but the aggrav

ated burglary sentence is to b e served consecutively to a sentence in a Cheatham County case. One issue is presented forreview. The defendant contends the t rial court committed err or of prejudicial dimensions by permitting the State of Tennessee (state) to cross-e xamine him about swo rn testimony

he gave in open court w hen he entered pleas of guilty to these same offenses. The pleas ofguilty were l ater set aside in a post-c onviction action. After a thorough review of the reco rd, the briefs submitted by the parties, and the law governing the iss u e presented for review, it is the opinion of this court that the judgment of thetrial court should be affirmed.

I. 

### PRIOR PROCEEDINGS

The crimes in question were committed on December 16, 1993 in Ho uston Cou nty. The defendant was arrested in C heatham County. On December 17, 1993, the Houston County sheriff and one of his deputies went to Ashl and City, the county s eat of Cheatham County, to ok custod y of the de fendan t, and tra nsporte d him to Ho uston Cou nty. On January 3, 1994 , the H ouston County Grand Jury returned a two-count indictment

against thedefendant. The indictment charged the defendant with the offenses of aggravated burglary and theft over $1,000. O n May 12, 1994, the defendant entered pleas of guilty to

aggravated burglary and theft over $1,000. He took the witness stand and
was questioned by counsel. The defendant admitted he committed the two offenses during his testimony.3 The defendant filed an action for p os t-conviction relie f. The record is devoid of evidence regarding the grou nds alleged in the petition. The record reflects the trial court granted the defendant post-conviction relief. The guilty plea s and sentenc es were set aside, and the defendantwas placed in the same status he enjoyed prio r to the submission hearing. Again, the record is devoid of evidence as to why the trial cour

t granted the relief sought. The defendant was tried on March 27, 1995. The jury convi cted the defendant of the offenses alleged in the indictment , and the trial court imposed the sentences hereinabove set forth.

II. 

### THE TRIAL PR OCEEDINGS

On the morning of December 16, 1993, Jeffrey L. Parchman went to Clarksville. He left his residence at approx imately 8:00 a.m. He returned to his residence at approximately 12:00 p.m. When he arrived he saw a man “run out of my house, drop[ ] a bunch

of stuff in the yard, jump[ ] in his car” and drive aw

ay. Mr. P archman follo wed the defendant approximately five mi les. Asthe defendant drove along the hi ghway, he began throwing items he had taken from the Parchman res idence out of his vehicle. When the defe ndant reached the intersection of Barber Highway and Ellis Mills Road, the defendant’s vehicle struck a tree. Mr. Parchman pulled his pickup t ruck behind t he defendant’s vehicle. He sa w the defendant throw a camer a on the ground. Th e defendant retrie

ved a .22 caliber pist ol, whi ch had been taken fr om t he Parchman residence, and pointed the pistol at Mr. Parchman. Mr. Parchm an shifted his truck into reverse, laid down on the seat, and began backing away from the def end ant. He apparently struck a fence while he w as backing. The

defendant left on foot after removing the license plate from his car.He disappeared in a woo ded area near the intersection. Personal proper

ty taken from the Parchman residence was found in the defendant’s vehicle. The license plate number (obtained by Mr. Parchman) and the vehicle identification4

number were registered in the defendant’s name. W arr ants wer e issued for the defendant’s arrest. Copies of these w arrants were faxed to

Cheat ham County. On the morning of December 17, 1993, the Cheatham Cou nty Sheriff’s D epar tment notified the Houston County Sheriff’s Department the defendant was in custody. Sheriff Jimmy M obley and one of his deputies went to C heatham County, took the defendant into custody, and returned him to Hou ston Coun ty. The defendant gave Deputy Wilson Coffelt a stat em ent admitting the aggrav ated burglary and removing personal pr operty from the Parchman resi dence. He stated he obtained entrance to the residence by using a screwdriver t o pry open the back door. The defendant asked to speak with the v ictim. Mr. Parchmanwent to the Houston County Sheriff’s Department and talked with the defendant. The defendant told Mr. Parchman he
was sorry for entering his residence andstealing his personal property. He related that his wife might be pregnant. He promised to pay Mr. Parchman for the damage to his residence and any of t he personal property remov ed from the residence which w as not recovered

. Mr. Parchman described the defendant’s stateme nts to him as “just a so b story.”Mr. Parchman made a courtroom i dentification of the defendant as the person he
saw leaving his residence on December 1 6, 1993. He also testified the v alue of the personal property removed from his residence was at

least $2,000. All of the proper ty the defendant removed from the residence w as recovered except the pistol. The defendant left the situs where he wrecked his vehicle with the pi stol. In his statement to the po lice, the defendant s aid he gave the pistol to a motorist in exchange for transportation to his residence. The defendant testified in supp ort of his defense. He stated he was in Clarksville
on the morning of December 16, 1993. He parked his car at a gas station and left on foot to visit severa l busines ses in Clar ksvi l le. He completed several employment application forms and was interviewed. When he returned to the gas station at ap proximately10:00 a.m., the vehicl e was missing. According to the defendant, he calledthe Clarksville Police Department to report the theft of his vehicle. He w as advised he had to have certain informati on pertaining to the5

r egistration before the Clarksvill e Police Department would accept the theft rep ort. Th e defendant testified he walked fifteen miles to his residence, obtained the information, and reported the theft to the Clarksville Police Department. He stated he walked rather than call his wife f or a ride because they did not have a telephone. He did not k now the telephone number of his neighbors who h ad telephones. He could not remember the
names of the two po lice department employees with w hom he d iscussed the theft of his vehicle. The assista nt distric t attorney general began his cross-examinati on of the defendant in the following manner:

Q. Mr. Felts, do you r

emember when you walk ed up here and before you sat down there and the Judge got you to rai se your hand to swear to tell the t ruth, the whole truth and nothing but the truth, so . . . help y

ou God? A. Yes, sir, I do. Q. That don’t mean nothing to y ou, does it? A. Yes, sir, it does. Q. Well, do you remember the one oth er tim e yo u came in here to court and you held up your hand and said, “I swear to tell the truth, the whole truth and nothing but the truth, so help me God”? A. Yes, sir. Q. Do you remember telling the Judge there that you broke into Mr. Parchman’s house? A. No, sir. Q. Do you remember telling him that you carried the stuff out? A. No, sir. Q. Do you remember telling him that you drove down the r oad and ran into that tree? A. No, sir. Q. Do you remember telling him that you took the license plate off the car and ran out through the woods? A. No, sir. M R. HAN SROTE: Your Honor, can w e approach the bench, please? THE COURT: Yes.6 A bench conference was held and the following colloqu y took place: MR. HAN SROTE: Your Honor, he’s goi ng into matters that were testified to at a plea -- THE COURT: No, he testified to it when he entere d his ple a, Mackey, under Mackey charge.I made everybody sw ear and testify. MR. HANSROTE: Well, Your Honor, it’s a felony pl ea and I’d ask the court to not let him q uestion Mr. Felts about tha t. THE COURT: No, it’s prev ious testimony in court. I’m going to allow it. MR. HANSROTE: Yes, sir. The cross-examination of the defendant r esumed. BY GENERAL SEXTON: Q. You don’t remember that? A. No, sir. I remember pl eading guilty to the crime. Q. Well, let me ask you, you don’t remember swearing under oath just like you did today, held up your hand and swore to tell the truth -- A. Yes, sir, I remem ber swearing. Q. Do you remember

swearing that yo u broke into thehouse? A. No, sir, I don’t. Q. Do you kn ow that you just comm itted pe rjury? A. I didn’t know

that. I don’t remember swearing. I remember swearing, but I don’t remember saying I broke in the house. I remember pleading guilty to the crime.
The state called Mr. Parchman as a rebuttal witness. During his rebutta l testimo ny, the following colloq uy occurred:

Q. Mr. Parchman, you’ve been in the cour t room or were in the court roo m at least when Brian Felts test ified he re today? A. Yes, I was. Q. And did you hear him raise up hi s hand and take that oath? A. Yes, I did. Q. Have you ever

heard him do that before?7 A. Yes, I have. Q. Did he sa y the same thing the n he said t oday? MR. HANSROTE: Objection, You r Honor. Can we approach? THE COURT: Yes. The following occurred du ring the bench conference: MR. HANSROTE: Be fore we go back into what his testimony has been, the best evidence of the tes t imony is a transcript and if we don’t have a transcript, brin ging t hose people in to testify to what he testified to is improper best evidence -- THE COURT: Well, he has testified that he didn’t give sworn testimo ny, the way I understand it.This is rebuttal to that testimony. Overrul ed. Direct examination of Mr. Parchman continued: BY GENERAL SEXTON: Q. You were saying y

ou had heard him raise that hand up and take that same oath before? A. I did. Q. Did you hear what

he said that other time? A. He pleaded guilty to all the charges. Q. But didn’t he give th e state of facts and tell exa ctly how everything happene d there th at day? A. Yes, he did.
This court must now undertake the task of deter mining whether the assi stant district attorney generalwas entitled to question the def endant r egarding t he testim ony he gave during the submission hearing; and this court must further determine if allow ing the rebuttal testimony

regarding the defendant’s testimony during the submission hearing was proper.

III. 

### ADMISSIBILITY OF SUBMISSION HEARING TESTIMONY

The trial c ourt a nd the parties were aw are the questions propounded by the assistant dis trict attorney gener al to the defendant concerned his submi ssion hearing testimo ny. It appears the court was of the opinion this prior rec orded testimony could be8

u sed to impeach the defendant because his tr ial testimony and his sub mission hear in g testimony

were enti rely dif ferent. During the submiss ion hearing, he admitted he committed the crimes, he explained how he committed the crimes, and what occu rred after Mr. P archman return ed home. He den ied he committ ed the crimes du ring h is tria l testi mony. Of course, the question this court must address is whether the st ate wa s entitled to question the defendant regarding his testi mony during the submissi on hearing and Mr. Pa rchman’ s rebutta l testimo ny.

A.

The admission of testi mony regar ding withdr awn guilty plea s, offe rs to plea d guilty, and statements made incident toguilty plea proceedings are governed by Rule 11(e)(6), Tennessee Rules of Criminal Procedur e, and Rule 410, Tennessee Rul es of Evidence. Rule 11(e)(6), Tennessee Rules of Criminal Procedure states:

Except as otherwise prov

ided in this paragraph, ev idence ofa plea of guilty, later withdrawn, or aplea of nolo contendere, or of an offer to plead guilty or nolo conte nde re to the cr ime cha rged or any other crime, or of statements made in connection with, and relevant t o, any of the foregoing pleas or offers, i s n ot admissible in any ci vil or criminal pr

oceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea

of nolo contendere, or an offer to plead guilty or nolo contend ere to the cr ime charged or any other crime, i s a dmissible in a criminal proceeding for perjuryor false statement if the statement was made by the def endant under oath, on the record, and in the presence of counsel. Rule 410, Tennessee Rules of Evidence, parallels Rule 11(e)(6). Rule 410 stat es:

Excep t as ot herwise provided i n this rule, evidence of the following is not, in any

civil or criminal proceeding, admissible against the party who made the plea or was a partici pant in the plea discussions: (1) a plea of guilty w

hich was later wi

thdrawn; (2) a plea of nolo contendere; (3) any s tatemen t made in the co urse of any proce edings under Rule 11 of the Tennessee Rules of Criminal Procedure regarding either of the foregoing pleas; or9 (4) any statement madein the course of plea discuss ions with an attorney for

the prosecuting authority which do not

result in a plea of guilty or w hich result in a plea of gui lty later withdrawn. Such a statement i s adm issible, however,in a criminal proceeding for perjury or f alse statement if the statementwas made b y the defendant under oath, on the record, and in the presence of counsel.
Based upon a comparison of the two rul es, it appears Rule 410(3) , Tennessee Rules of Evidence , address es the iss ue prese nted fo r review.

B.

The purpose of both Rule 11(e)(6), Tennessee R ules of Criminal Procedure,and Rule 410, Tennessee Rules of Evidence,is to promotethe settlement of criminal actions. Neil P. Cohen, et al., Tennessee Law of Evidence § 410.1, at 225 (3d ed. 1995). Als o, these rules permit the district attorney general and assis ta nt district attorney generals to engage in frank dialogue with defense counsel when discussin g the settlement of criminal actions. Id . In addition, these rules protect the accuse d from future repercussions if (a) he enters, or attempts

to enter, a plea agreement, (b) he is allowed to withdraw the g uilty plea, or (c) the trial court reject s the plea agreement. Neither of these rules insulate the accused when he is prosecuted for perjury or false s tatement. Rule 11(e)(6), Tennessee Rules of Criminal Procedure, protects “sta tements made in connection with, and rel evant to, any of the foregoing plea s [guilty plea and nolo contendere plea] or offers.” This rule doe s not a ddr ess sworn testimon y given during a submission he aring. Rul e 410(3), Tennessee Rules of Evi dence, protects “any stat ement made in t h e course of any proceedings under Rule 11 of the Tennessee Rules of Criminal Procedure regarding either of

the foregoing pleas [a guilty plea and a plea of nolo contendere].” This court is of the opinion the phrase “any statement made in the course of any proceedings” encompasses the sworn testimo ny of an accused during a submissio n hearing. In this case, the defendant was granted relief from his guilty pleas

and sentences in a post-conviction acti on. He opted to go to trial rather than attempt to negotiate a new plea agreement
. This court is of the opinion the setting aside of guilty pleas in a post-10

conviction action should betreated the same as if the guilty pleas had been withdrawn or the trial court hadrejected a plea agreement. See Neil P. Cohen, et al., Tennessee Law of Evidence , § 410.2, at 226 (3d ed. 1995). Thus,the trial court erred in pe rmitting the assistant district attorney general to question the defendant r egarding the admission he made during the submi ssion hearing. The trial court also erred in allowing the subseq uent rebuttal testimony of Mr. Parchman. Id

. at § 410.4 at 227. See United Statesv. Lawson , 683 F.2d 688, 690-92 (2nd Cir.1982), aff’d , 736 F.2d 835 (2nd Cir. 1984). The next issue this court must address is whether the questioning of the defendant regarding his submission hearing testimony and the eliciting of the rebuttal testimony were harmless error.

IV.



### HARMLESS

ERROR A NALYSIS

An accused in a crim inal prosecu tion is not entitled to appell ate relief for an error appearing on the face of the record “unless, considering the whole record, error

involving
a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). Rule 52(a), Tennessee Rules of Criminal Procedure, prov ides that “[n]o judgment of conv iction shall be rever

sed on appeal except for errors w hich affirmatively appear to have affected the result of the trial on the merits.” In determining whether an error is harmless, the appellate court must consider the evidence adduced during the trial.As the supreme court said i n State v. C ar ter , 714 S.W.2d 241, 248 (Tenn. 1986), cert

. denied , 479 U.S. 1046, 107 S.Ct. 910, 93 L. Ed.2d 680 (1987): “The line between harmless and prejudicial error

is in direct proporti on to the degree of the margin by which the proof exceeds the standard req uired to convict bey ond
a reasonable doubt.” Carter was quoted with approval in State v. Suttles , 767 S.W.2d 403, 404 (Tenn. 1989), and State v. Adkisson , 899 S.W.2d 626, 644 (Tenn. Crim.App. 1994). In this case, Mr. Par

chman m ade a positive courtroom i dentification of the defendant
as the person who had entered his resi dence and removed personal pro perty owned by11

Mr. Parchman and his wife. Mr. Parchman watched the d efe ndant throw his items of personal property o ut the ca r window a s the defendant sped away to avoi d arrest. The vehicle driven by the defendant w as registeredto him. Property taken during the burglary was found inside the vehic le. The defendant asked to talk to Mr. Par chman. He appar ently believed he could convince Mr. Parchman not to prosecut e him. He admitted he entered the residence using
a screwdriver; he said he was sorry for what he had done; and he told Mr. Parchman he would pay for any damage to his residence and any missing property. H e said hi s wife mightbe pregnant. The defendant confessed his gui lt to a H ouston C ounty d eputy s heriff. He explained the events which occurred on the dat e in question. The record reflects

the defendant’s trial testimony was incredible gi

ven the totality of the ci rcumsta nces. He m ade a poo r witness. T he jury did not belie ve his test imony. This court is of

the opinion theerror was harmless. The evidence of the defendant’s guilt is overwhelming . In short, the error di d not affect the judgment nor did it re sult in prejudice to the judicial process.

______ ____________

__________________________ _ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ WILLIAM M. BARKER, JUDGE