### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session STATE OF TENNESSEE v. JESSE ROSS TOLBERT Direct Appeal from the Criminal Court for Roane County

No. 11768 E. Eugene Eblen, Judge

No. E1999-02326-CCA-R3-CD August 18, 2000

Defendant

appeals as of rig

ht from his convicti

o n of aggravated assault. At trial the trial judge did not let defense counsel question the sole prosecution witness about

the witness’ guilty plea to extortion and subseq

uent judicial dive

rsion. The court d

idallow questioning reg

arding the fac

ts underlying

the witness’ prosecution. Defendant now alleges that this evidentiary ruling violated h

is rights under the confrontation clauses of the United Statesand Tennessee Constitutions. We hold that the trial court erred. Under Tennessee Rule of Evidence 608 defense counsel should have been allowedto question the witnes s regardin g the guilty plea and judicial diversion. However, we conclude that

the error is harmless beyond a reasonable doubt. We thus affirm the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed. T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and A LAN E. G LENN , JJ., joined. Joe H. Walker, District

Public Defender; Alfred Hathcock, Assistant Public Defender; and Roland Cowden, Assistant Public Defender, Harriman, Tennessee, for the appellant, Jesse Ross Tolbert. Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assista

nt Attorney G

eneral; J. Scott McCluen, District Attorney General; and Frank Harvey

, Assistant Distric

t Attorney G

eneral; for the appellee, State of Tennessee. OPINION Defendant

Jesse RossTolbert

was convicted of aggravated assault by a Roane County jury andsentenced to thre

e years inc

arceration in

the Department of

Correction. In this appeal Defendant raises one issue regarding his constitutional confrontation rights. During cross-examination of the victim the trial cou

rt did not allow defense

counsel to discuss the victim's guilty plea to extortion because the victim was gr

anted judicial div

ersio n. The trial court di d allow defense c

ounsel to-2-

explore the factual circumstances that gave rise to the victim’s prosecution. Defendant now argues that this ruling by

the trial court vio

lated Defendan

t's confrontati

on rights, and as

ks that we rever

se his conviction. Afte

r a careful re

view of th

e record and applicable law we conclude that the trial court erred. However, we conclude that the error is harmless bey ond a reasonable doubt, and thus affirm the judg

ment of the trial c

ourt. I. Facts On August 9, 1996 Defendant Tolbert went to the home of his ex-wife, Candace Eskridge, to get his son for a parental visit. One block from the house he encountered his ex-wife’s husband, Marshall Eskridge, and Defendant’s son, who were out riding bicy cles. At trial Eskridge testified that Defendant pulled up in a van with two other persons, exited the van, and informed Eskridge that Defendant

was there to get his son. Eskridge asked Defendant t o come to th e house, so Eskridge could confirm that Defendant had Canda ce’s permission to take the boy. Defendant then ye lled obsceniti es at Eskrid ge and threatened him. Eskridge said that he could smell alcohol on Defendant’s breath, and that Defend ant’s eyes were b loodshot . Eskridge placed his body between Defendant and Defendant’s son, and Defendant again threatene d Eskridge. Eskridge placed

the boy on one of

the bicycle

s, climbed on the sa

me bike, and rode

back to the house. Defendant

followed in th

e van. At the house Eskridge took the boy inside, and when doing so he observed Defendant yelling and exiting the van with a shotgun. While Defendant stood at the front of the house and screamed for Candace Esk

ridge to come

outside, Eskridge proceeded to retrieve a

nine millimeter automatic pistol from inside the house. After he collected the weapon he went back outside the house because Ca ndace Eskridge

had responded to

Defendant’s yelling and hadgone out to

talk to Defendant. By the time that Eskridge exited the house Defendant was back in the van, sitting on the passenger side. Defendant pointed th e shotgun at Eskridge, an d Eskridge pointed the pistol at Defendant. No words were exchanged, and after a moment the van drove off with Defendant in

it. At trial the State’s only proof was the t es timony of Marshall Eskridge, and Defendant p resented no proof. Defendant sought to undermine Eskridge’s credibility by delving into th e circumstances regarding Eskridge’s resignation fr

om the Knoxville

Police Department in March of 1996. Eskridge was caught in an FBI sting oper ation when he arrested

a man for whom no warrant was outstanding, and

offered to

“fix” the warran

t for a cash

sum. Eskridge pled guilty to one count of extortion, and received judicial diversion. Eskridge testified that as a result he resigned from the Knoxville Police Department; the presentence report prepared for his guilty plea hearing states that he was fired. The trial court ruled pre-trial that defense counsel could explore the fac tu al circumstances underlying

Eskridge’s guilty plea

, but that defense

counsel could not discuss any aspect of the legal proceedings ag ainst Esk

ridge, including

the guilty p

lea and judicial d

iversion. The tria

l court did notgive any

reasons for this ruling in the record. Defense counsel managed a furious attack on the victim’s credibility with questions regarding the circumstances of the victim’s cr ime.-3- II. Analysis Defendant

asserts that the trial court erred when it did not allow an inqu iry, on cros s examination, regarding the victim’s guilty plea and judicial diversion status, and that in s

o doing the trial court violatedDefendant’s right to effectively cross examine his accuse r. Defendant

argues that defense counsel should have been allowed to question the victim regarding the p lea a nd judicial diversion. Defendant also a rgues that defe

nse counsel should

have been permi

tted to admit the gu

ilty plea into evidence if Defendant denied the existence of the plea. We agree that the trial court erred when it did not allow question ing of th e victim about the plea and diversion. Tennessee Rule of Evidence 608 controls this issue, and the trial court erred when it did not follow the procedure set f orth in the rule . We do not think that judicial d iversion i s a “convict ion” withi n the meani ng o f Rule 609, however, and thus any extrinsic evidence of Defendant ’s plea and diversion would not have been admissible had Defendant denied the existence of the plea. Accordingly, when the trial court’s error is placed in the con text of the entire tr

ial, the error is h

armless bey

ond a reasonable doubt, and therefore Defendant is not entitled to relief. The Sixth Amendment to the United States Constitution provides that a criminal defendant “shall enjoy the right . . . . to be confronted with the witnesses against him.” U.S. Const. amend. IV. Likewise, Tennessee’s constitution states that “the accused hath the right . . . . to meet the witnesses faceto face.” Tenn. Const. art. I., § 9. These so called “confrontation” clauses have been interpreted to give a defendant the right to physically face and effectively cross-examine the gove rnment’s witnesses. State v. Howard Brown , No. E1995-00017-SC-R11-CD, 2000 WL 49153, at * 3, Knox County (Tenn. 2000) pet. for cert. filed, 68 U.S.L .W. 3998 ; S tate v. Belser , 945 S.W.2d 776, 784 (Tenn. Cri m. App. 199 6) (quotin g Delaware v. Fensterer , 474 U.S. 15, 20 (1985)). The right to an effective cros s-examinati on is not unbridled. This right is part of a defendant’s right to present a defense, and generally an accused “does not have an unfettered right to offer evidence that

is incompetent, pr

ivileged, or othe

rwise inadmissible under standard rules of evidence.” Montana v. Egelhoff , 518 U.S. 37, 42 (1996). The right to present relevant evidence may bow to accommodate other legitimate inter

ests in the criminal trial process. Michigan v. Lucas , 500 U.S. 145, 149 (1 991) (quot ing Rock v. Arkansas , 483 U.S. 44, 55 (1987). Defendant’s brief implicitly acknowledges

these limitations;

Defendant argues that the trial court erred only

because the evidence regarding the victim’s guilty plea andjudicial diversion is competent evidence under the Tennessee Rules of Evidence. We agree with Defendant’sassertion that an inquiry regarding the victim’s guilty plea and judicial diversion should have been allowed on cross examination. Defendant argues that this result is mandated by Tennessee Rule of Evidence 609, but we think that the issue is controlled by Rule 608. Rule 609 gov erns impeachmen t of a witness when a witness has bee

n convicted of cr

ime punishable

by death or one year

or more in prison, or a crime involvin g dishonesty

or false stateme

nt. See Tenn. R. Evid. 609(2). T he rule sets for th guidelines that provide when the witness may be askedabout the conviction (on cross-examination), and how extrinsic evidence may be admit ted to-4-

prove that the witne ss has been so convicted if the witness denies the conviction under oath. Id. 609(1). Here, however, the victim was not convicted of any crime . The victim did plea d guilty to extortion, but was granted judicial di version . When judicial diversion is granted a judgment of con viction is not entered in the record, and all proceedings against the defendant a re stayed. See Tenn. Code Ann. § 40-35- 313(a)(1)(A) (1999). If di

version is completed s uccessfully all official records regarding the prosecution are expunged from

the Defendant’s criminal record. Id. § 313(b). The effect is “to restore the person, in the contemplation of the law, to the status the person occupied beforesuch arrest or indictment or infor mation.” Id. “Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities impo sed by law upon conviction of a crime or for any other purpose, except as provided in subsection (b).” Id. § 313(a)(2) . Although subsection (b) does discuss the admissibility of

judicial diversion

records, it limits a

dmissibility to (1) non-public records kept by the trial court, that are (2) presented in civil trials where the defendant is a civil plaintiff, and (3) the sub ject matter of the suit is the same matter as the original criminal pros ecution. Id. §313(b). Notably , the statute omits a

ny refere nce to the gene

ral admi ssion o f judicial diversion records for impeachment purposes under Rule 609. Given the language

of the statute

we think that when a defendant is granted judicial diversion there is no conviction with in the meaning of

Rule609, and thus the rule does not apply when counsel seeks to impeach a witness with a criminal prosecu

tion that has concl

uded in judicial diversion. See , e.g. , State v. Schindler , 986 S.W.2d 209, 2 11 (Tenn. 1999) (holding in part that successful completion of judicial diversion does not bar evidence of the underlying criminal act a s a prior bad act); State v. Dishman , 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (suggesting that there is no conviction within the meaning of Rule 6 09 when pretrial

diversion is gra

nted). Here, thi

s means that any extrinsic evidence of the victim’s guilty plea and judicial diversion is inadmissible. We think that the evidence of the victim’s guilty plea and judicial diversion is governed by Tennessee Rule o

f Evidence 608(b

), which states in p

art: (b) Specific Instance s of Conduct. – Specific instances of conduct of a witness for the purpose of

attacking or supporting the witness’s credibility, other than convictions of cr ime as p rov ide d in Rul e 60 9, m ay not be proved by e xtrinsic evidence. They may

, however, if pro

bative of tr

ut hfulness or untruthfulness and under the following conditions, be inquired into on cross-examination of the witness concerning the witness’s cha racter for trut

hfulness or untrut

hfulnessor concerning the character for

truthfulness o

r untruthfulness of another witness as to which the character witness being cross-examined has testified. The conditions whichmust be satisfiedbefore allowing inquiry on cross-examination about such conduct probative solely of truthfulness or untruthfulness are:-5- (1) The court upon request must hold a h earing o utside the jury’s presence andmust determine that the alleged conduct has probative value and that a reason able fact ual bas is e xis ts f or t he i nqu iry; Under this rule a witness who has been granted judicial diversion may be properly questioned, for impeachment

purposes, about th

e criminal conduc

t that lead to prose

cution, as well a

s the subseq uent prosecution and judicial diversion. See Schindler , 986 S.W.2d at 211. See also Di shman , 915 S.W.2d at 463 (ques tioning of v ictim regard ing burgl ary pro secution proper under Rule 608 even though pre-trial diver

sion was grante

d and completed); State v. Williams , 645 S.W.2d 258 (Tenn. Crim. App. 1982) (under

Rule 608 trial court should have allowed questioning of witness regarding larceny prosecution, even though pre-trial diversion wa s granted). Here, defense

counsel requested a pre-trial hearing to show that the victim had indeed pled guilty to extortion and received judicial diversion. The trial court replied “No. No. No. No.” The trial court instructeddefense counsel that on cross-examination counsel could not discuss any aspect of the victim’s guilty plea and judicial diversion, but that cou nsel co uld inquire about the factual circumstances underlying the victim’s prosecution. We are of the opinionthat the trial court erred when it did not allow Defe ndant to cross-exa

mine the victim reg

arding the victi

m’s guilty

plea and judicial diversion. The la nguage of Rule

608 is non-discret

ionary; a court “upon requ

est must hold a hearing.” Tenn. R. Evid. 608 (emphasis added). Because the trial court did not follow the proper procedurethe trial court er red when it

instructed defe

nse counsel not to d

iscuss the guilty plea and judicial diversion during cross-examination. Ord ina ril y, the next step in our analy sis would be to asse

ss whether this evide

ntiary err or is so egregious that it rises to the level of a constitutional violation. However, even when a defendant’s right to effectively cross-examine a witness is violated

this Court may

not set aside a con

viction if the constitutional error at trial is harmless bey ond a reasonable

doubt. State v. Howell, 868 S.W.2d 238, 252-53 (Tenn. 1993); Belser , 945 S.W.2d at 784. Assuming, arguen do, that De fendant’s confrontation rights were violated by the trial court’s error,

we nonetheless

affirm the judgment of the trial court be

cause we conclu

de that the error

is harmless bey

ond a reasonable

doubt. In order to assess the effect of an improper denial of

a defendant’s cross-examination right we must ask if

the error is harmless beyond a reasonable doubt even if the damaging potential of the cross-examination were to be fully realized. Howell , 868 S.W.2d at 2 53 (citing Delaware v. Van Arsdall , 475 U.S. 673, 684-85 (1986)). Factors to be considered in making this decision include “the impor tance of the witness’ testimony to the prosecution’s case, the cumulative nature of th e testimo ny, the presence or absence of evidence corroborating or c ontradicting the witnes s on materia l points, the extent of cross-examination other wis e perm itted, and the overall strength of the prosecution’s case.” Id. (citing Van Arsdall , 475 U.S. at 684-85)). Here, the victim’s testimo ny was cent

ral to the prosec

ution’s case bec

ause it was the only evidenceof Defendant’s

crime. There we

re no other witne

sses at trial. Nonetheless we conclude that the trial court’s error is harmless beyond a reasonable doubt bec ause the cross-examination that-6-

was allowed regarding the victim’s crimes was extensive. Any additional damage that would have been caused by

questioning the victim about the guilty plea and judicial diversion would have been negligible. Th

e relevant porti

on of the record

reads as follows: Defense: And when you took his $240, you made a deal with him, didn’t y ou? Victim: I don’t under stand you by

deal. Defense: Well, you said, there’s a warrant out for y ou, didn’t you? Victim: Yes. Defense: And you said, I can take care of that warrant for you; didn’t you? Victim: Yes. Yes. Defense: But

for me to take care of that warrant for you, it’s going to take $240. That’s what y

ou told him, isn’t it? Victim: Yes. Defense: And you took his money, didn’t y ou? Victim: Yes, I did, y es. Defense: You took the $240? Victim: Yes. Defense: Now you didn’t give back that money be fore the FBI confronted

you, did you? Victim: No, I did not. Defense: But you and the FBI had a little meeting; didn’t you? Victim: Yes. Defense: And in fact, the wo rd extortion was use

d, wasn’t it? Victim: Yes. Defense: More than once, w asn’t it?-7-

Victim: Yes. Defense: Now as a police officer you were completely familiar

with the crime of extortion, weren’t you? Victim: Yes, I was. Defense: And you a dmi tte d to the FBI t hat you h ad t aken his mon ey? Victim: Yes, I did. Defense: And you admitted that you took i

t, because y

ou told him

that you’d take care of the war

rant for him? Victim: Yes, I did. Defense: And it was after that that (sic) yo u lost your job with the Knoxville Polic e Dep artme nt, is n’t it ? Victim: Not that I–yes, I re signed. Defense: You res igne d? W ell the y kne w ab out it; did n’t the y? Victim: Excuse me? Defense: The Knoxvill e Police Dep artment kn ew that you’d be en stung by the

FBI? Victim: Yes. Defense: And it was after they learned about this sting that your care er with the Knoxville Police Dep

artment terminate

d, wasn’t it? Victim: Not on their terms. Defense: That’s not what I asked. I’m talking about timing in here. I’m talking

about timing. My question to you is, it was after they learned that

the FBI got you, tha

t y ourcareer ended with the Knoxville Police Department; isn’ t that correct? Victim: I was in the pr ocess of leaving

, yes.-8-

Defense: You going to tell this jury you had any choice in keeping that

job after the FBI had stung you? Victim: It wa s a s lim pos sib ili ty.

In short, the jury was made aware that the victim committed a crime for financia l gain, that he abused his position o

f trust as a police

officer by

committ ing the cr ime while on-duty, that he admitted his crime to the FBI, and that the crime was responsible for his immediate departure from the Knoxville Police Department. During his testimony the victim admitted his guilt to extortion. The only point of c

ontention was whe

ther he was fire

d or voluntarily

quit his j ob as a Knoxville police officer. We think

that any add

itional questions re

garding the vi

ctim’s guilty

plea and judicial diversion would have caused little additional prej udi ce t o th e vi cti m’s cred ibi lit y. As a result, we conclude that the trial court’s failure to allow questioningabout the guilty plea and judicial diversion is harmless bey

ond a reasonable

doubt. III. Conclusion For the above re

asons we AFFI

RM the judgment of

the trial court.

___________________________________ THOMAS T. WOODALL, JUDGE