# FILED
May 10, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICA

TION Filed: May 10, 1999

STATE OF TENNESSEE, ) ) APPELLEE, ) SHELBY COU NTY ) v. ) Hon. Joseph B. Da iley, Judge ) ABRAHAM GALMORE, ) No. 02S01-9804-CR-00033 ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : A. C. WHARTON JOHN KNOX WALKUP PUBLIC DEFENDER ATTORNEY GENERAL & REPORTER MEMPHIS MICHAEL E. MOORE M. MARK WARD SOLICITOR GENERAL ASSISTANT PUBLIC DEFENDER MEMPHIS MICHAEL J. FAHEY II ASSISTANT ATTORNEY GENERAL NASHVILLE



# O P I N I O N

AFFIRMED HOLDER, J.2 OPINION
We granted this appeal to dete rmine: 1) whether the State may impeach a defendant ’ s credibility by referring to an unnamed felony conviction; and 2) if not, wh ether a n on-test ifying defendant

must sho

w that h e did not

testify because of the trial court's ruling. We hold that the trial court erred in permitting the State to impeach the defendant’s cr edibility by referr

ing to an unnamed felony conviction. We further hold that the defendant was not required to preserve his objecti on by stating that he w ould have testified in his trial but for the trial court's rul ing or by making an offer of proof as to his proposed trial testimony. Although the ruling as to the admissi bility of the prior felony was improper , it does not mandate reversal in this case.

BACKGROUND

On December 14, 1993, James Hathaw ay and the defendant, Abraham Galmore , robbed

Dan and M axine S

wartz , the res ident ma nagersof a selfstorage facility in Memphis. Both victims w ere shot in the head, stabbed, and cut across the throat. Mr. Swartz died as a re sult of his injuries. M rs. Swartz survived and was

able to identify Hathaw ay, whom she knew pr

ior to the incident, as one of the perpetrator s. Galmore admitted his inv olvement in the robbery but denied hav ing harmed e ither vic

tim.

Prior to trial, the Stat

e gave written noti ce pursuant to Tenn. R. Evid. 609(a)(3) of its intent to impeach the defend ant’s credibility with six prior burglary convictions and one prior robbery conviction. After a hearing, the trial court concluded that the six bur glary convicti ons could be used for impeachment purposes. As to the robbery conviction, the trial

court stated that it was inclined1 Although t he record does not include a final rulingon this i ssue, the defen dant state d during a j ury-out

hearing t hat he understood the tri al court’s rulin g that t he State coul d not ask about the rob bery convi ction per se but could ask whet her he had a fel ony conviction. The defendant then indicat ed that he di d not wish t o testi fy. The reco rd is si lent as t o whether the defend ant intend ed to testify if the ro bbery co nviction we re exclu ded. 3 to allow the State to use that conviction by ask ing the defendant, “Isn’t it t rue that you are the same Abraham Galmore that was convicted of a felony on Septembe r 1, 1992 , in ind ictment 92-02608, and received a senten ce of X years. . . ?” 1 The defendant did not testify at tri al. The jury convic ted the defendant of especially aggr avated robbery and cri minally negligent homicide. The trial court imposed an effective sentence of sixty-six years.
Relying on State v. Summerall , 926 S.W.2d 272 (Te nn. Crim. App. 1995), the Court of Criminal Appeals held that admission of a prior conviction of “a felony” without further i dentification would have been improper. The court, however, concluded that the trial court’s ruling was not reversible error because the defendant failed to demonstrate prejudi ce. The court noted that the defendant neither showed that he w ould have testified had the unnamed felony conviction been excluded nor made an offer of proof as to hi s proposed trial testimony. The court further h eld that any error w as harmless based on the overwhelming evidence of guilt and the admissibility of the six burglary convictions for impeachment purposes.

ANAL YSIS
The State concedes that the trial court erred in ruling that the def endant’s credibility could be impeached by asking w hether he had been convicted of an unnamed felony. The State, howev er, argues that the defendant w aived his right to consideration of the issue on appeal because he: (1) failed to show that he did not testify because of the rul ing; and (2) failed to make an offer of proof as to2 The defendant did not chall enge the tri al court’s rulin g regarding the admissibil ity of the six prio r burglar

y convict ions. 4 his proposed testimony. The de fendant contends that the requirement s proposed by the State conflict with Tenn. R. Evid. 609(a)(3), are against public policy, and have prac

tical problems in implementati on.

I.

Before the accused in a criminal prosecution may be impeached by proof of a prior conviction, the trial court “must determine that the conviction’s probative value on cr

edibility outweig hs its unfair prejudicial effect on the substantive issues.” Tenn. R. Evid. 609(a)(3) . In making this determination, the trial court should (1)

“analyze the relev

ance the impeaching evidenc e has to the issue of credibility”

and (2) “‘assess the si milarity between the crime on trial and the crime underlying the impeaching conviction.’” State v. Mixon , 983 S.W.2d 661, 674(Tenn. 1999) (quoting N. Cohen, D. Paine, and S. Sheppear d, Tennessee Law of Evidence , § 609.9, at 376 (3d ed. 1995)).
The prio r convictio n at issue is robbery. 2 Robbery is a crime involving dishonesty and may be used for impeachment purposes. State v. Caruthers , 676 S.W.2d 935, 94 1 (Tenn. 1984). The defendant was indicted f or especially aggravated robbery , murder during the perpetr ation of a robbery, and first d egree premeditated murder. Evidenc e of a prior conviction that is the same or similar in nature to an offense being prosecuted is not per se inadmissi ble for impeachment purposes. See State v. McGhee , 746 S.W.2d 460, 463 (Tenn. 1988); State v. Roberts , 943 S.W.2d 403, 408 (Tenn. Crim. App. 1996). Similarity between the crime on trial and the impeaching conviction, however,5 could improperly influenc e a jury to convict

a defendant based on propensity evidence.

In the case now before us, the tr ial court attempted to mitig ate the potential prejudice of the impeaching evidence by referring to the robbe ry conviction only as a prior "felony conviction." 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). Fur thermore, instructing the jury

on an unnamed felony would prov ide inadequate information for a jury to properly

weigh the convic

tion's probative val ue 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) r equires identification of the prior conviction. Therefore, the trial court erred in ruling that the State could impeach the defendant’s credibili ty by asking him i

f he had been convicted of an
unname d felony.

II.
We shall next address the requirements for preserving the i ssue for review on appeal. Tenness ee Rule of Evidence 609(a)( 3) provides that “[i]

f the court makes a final determination that such proof [of a prior conviction] is admissible for impeachment purposes , the accused need not actually testify at trial to later challenge the propriety of the determi nation.” This provisi on in Tenn. R. Evid. 609(a)(3) is not contained in the rule’ s federal counterpart. See Luce v. United States , 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (198 4).

In Luce , the United States Supreme Court held that a def endant must testify to raise and prese rve for review the claim of improper impeachment w ith a6 prior conviction. 105 S.Ct. at 464. The Court reasoned that a reviewing court is handicapped in weighing the probative value of the impeachment evidence against its prejudici al effect when the precise natur e of the defendant’s testimony is unknowable. Id. at 463. In addition, the Court found that , because the decision to testify seldom turns on the resolution of one factor, a reviewing court cannot assume that the adverse ruling on admissibility of impeachme nt evidence motivated the defendant’s decisi on not to testify. Id.
Despite Tennessee’s rejecti on of the Luce rule, the Court of Criminal Appeals cons idered pers uasive the reasoning of the United S tates Supreme Court. The Court of Criminal Appeals held that at least tw o things must occur before a non-testifying defendant ca n successfully appeal the tr ial court’s ruling on the admission of a prior conv iction. First, it mus

t appear from the record that the defen dant did

not testify bec

ause of th e adver

se ruli ng on adm issibi lity o f a prior conviction. Second, the defendant should make an offer of proof as to his propose d trial tes timony.
The Court of Criminal Appeals stated that the f irst requirement was best addressed by requiri ng the defendant to so testify outs ide the presence of the jury. The court noted that the record is silent as t o why the defendant did not testify. The court expre ssed doubt that the proposed admissi bility of the unnamed felony conviction had a ny impact on the defendant’s decis ion not to testify in view of the evidence and the admissibility of the six prior burglary convictio ns. Altho ugh we cann ot conclu de that t he defe ndant wou ld have testified if the unnamed felon y conviction were not admitted, it is quite possible that the adverse ruling

was a factor in the defendant’s decision not to testify. Moreover, we agree with the defendant that this pro forma requirement could only penalize the unsophi sticated or ill-adv ised defendant who is unawar e that7 he can later decide not to testify if the prior convi ction is excluded. See State v. Whitehead , 517 A.2d 373, 377 (N.J. 1986). Therefore, we conclude that the defendant is not required to show that he did not testify because of the adverse ruling on impeachment evi dence.
While recognizing that the making of an offer of proof as to the defendant’s proposed trial testi mony can be a time-consuming procedure for the already overburdened tr ial courts, the Court of Cr iminal Appeals reasoned that such a procedure was neces sary for an appellate court to properly assess th e impact of the trial court’s ruling. The few states th at have declined to adopt the Luce rule appear to be equally split between requi ring an offer of proof, see Wickham v. State , 770 P.2d 757 (Alaska Ct. App. 1989); Saucier v. State , 562 So.2d 1238 (Miss. 1990); State v. McClure , 692 P.2d 579 (Or. 1984); but see Hickson v. State , 697 So.2d 391, 397 (Miss. 1997) (holding that proffer of defendant’s testimony was not required when it w

ould have added nothing to record that included testi mony of defendant’s alibi witnesses); and placing no such restriction on the defendant’ s right to appellate rev iew. See Whitehead , 517 A.2d at 377; People v. Moore , 548 N.Y.S.2d 344 (N.Y. App. Div. 1989); Commonwealth v. Richar dson , 500 A.2d 1200 (Pa. Super. 1985). As noted by the New Jersey Supr

eme Court, there are signi ficant problems associated w ith requir ing an o ffer of pr oof:
Likewise, the requirement that a defendant outline his testimony through an offer of proof is beset with pitfalls. As ide from the potential unconstitutional ity of requiring a defendant to make an advance offer of proof, see United States v. Cook , supra , 608 F.2d at 190 (Kennedy, J., concur ring in part & dissenting in part), the requirement is unmanageable.As noted by the United Stat es Supreme Court, a defendant’s proffer of testi mony is inappropriate because “his trial testi mony could, for any number of rea sons, differ from the proffer.” Luce v. United States , supra , 469 U.S. at 41 n. 5, 105 S.Ct. at 463 n. 5, 83 L.Ed.2d at 447 n. 5. The nature and scope of the proffer, as well as the prosecutor’s use of the8 defendant’s proffered testimony, if he tes tifies, for impeachment purposes at trial, raise thorny questions about the extent to which the state can cross-exami ne the defendant and use the defendant’s testimony at trial

. United States v. Toney , supra , 615 F.2d at 282. Moreover, r equiring the defendant to make an offer of proof exposes him to the tactical disadvantage of prematu rely disclosing his testi mony. See United States v. Luce , supra , 713 F.2d at 1241 n. 4; United States v. Cook , supra , 608 F.2d at 1190 (Kennedy, J., concurring in part & dissenting in part).

Whitehead , 517 A.2d at 377.
Furthermore, the requir ement of an offer of proof is inconsistent w ith Tenn. R. Evid. 609(a)(3) . Rule 609(a)(3) req uires the trial court t o determine, prior to the testimony of the accused, whether a prior conviction’s probati

ve value on credibility outw

eighs its unfair prejudi cial effect on the substantive i ssues. The trial court must perform thi s balancing without the benefit of knowing the defendant’s proposed trial testimony. The rule then allows the accused to raise the issue on appeal without actually testifying at trial. There is no requirement in Rule 609(a)(3) that the defendant make an offer of proof.
We also find persuasive the distinction in Tenn. R. Evid. 103 betw een a ruling that admits evidence and one that excludes it. Rule 103 provides in pertinent part:
(a) Effect of Erroneous Ruling . -- Error may not be predicated upon a ruling which admit

s or excludes evide nce unless a substantial right of the party is affected, and (1) Objection. -- In case the ruling is one ad mitting evidence, a timely objection or moti on to strike appears of recor d, stating the specific ground of objection i f the specific ground was n ot apparent from the context; or (2) Offer of Proof. -- In case the r uling is one excludi ng evidence, the substance of the evidence and the specif ic evidentiary basis supporting admission w ere made known to the court by offer or were apparent from the contex t.9 The issue here is the effect of an erroneous ruling on the admissibi lity of impeachment evidence. Under R ule 103(a)(1), no offer of proof is r equired.

The State’s reliance on State v. Baxter , 938 S.W.2d 697 (Tenn . Crim. App. 1996), is misplaced. In that case, the trial court erroneously ruled that

the defendant’s prior incest conv iction was admissibl e for impeachment purposes. The Court of Criminal Appeals not ed that the non-testifying defendant did not make an offer of proof to preserve the is sue for appeal. Id. at 703. The lack of an offer of proof, however, was just one reason for the court’ s finding of no prejudice. Id. Moreover, the holding with regard to the r

equirement of an offer of proof is not supported by the authority cited. See Tennessee Law of Evidence , § 609.9, at 377 (“If the accused does not testify, it may be w ise to make an offer of proof so that the appellate court c ould have a record to use i n assessing the impact of the trial court’s ruling.”); see also State v. Martin , 642 S.W.2d 720, 724 (Tenn. 1982) (a pre-Rule 609 case holding that it was error to deny defendant’s request to make an offer of proof “because s uch proof may be relevant and necessary to a determinati on by the appellate court of w hether the trial judge has abused his discretion in refusing to rule on prior convictions before defe ndant’s election to take the stand”).
In light of Te nn. R. Evi d. 103(a)(1 ) and 609(a) (3) and the p roblems associat ed with requ iring a def endant t o outline his propo sed trial testimo ny, we conclude that a defendant is not req uired to make an offer of proof. Our holding does not preclude a defendant from making a proffer of the substance of his contempl ated tes

timony . Depend ing upo n the fact s and ci rcumsta nces of a case, an offer of proof may be the on ly way to demonstrate prejudice. However, neither an offer of proof nor a showing that the defendant would have tes tified3 Because the defendant was free to t

estify despite t he trial

court’s ruling, this case does not involve th e depriva tion of a fun dam ental con stitutional right. See Luce , 105 S.Ct. at 464 (concluding that erroneous decision unde r Rule 609 does not reach constitutional dimension). 10 but for the trial court’s r uling is required in order to preserve for review a claim of an erroneous ruling on admi ssibility of a prior conviction for impeachment purposes.

III.
Finally, we must decide whether the error in this case affirmatively or more probably than not affected the judg ment to the defendant’s prejudice. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). To resolve this issue, we must examine the theory of defense.
The defendant presented no evidence . During closing argument, defense counsel emphasized the lack of both physical evidenc e and identification evidence tying the defendant to the killing. Defense counsel argued that Mrs. Swartz was confused when she testified that the man w ho was with James Hathaway shot and stabbed her husband. Defense counsel also reminded the jury that the defendant had cooperat ed with police by g iving a statement about what happened.

The defendant contends that the trial cour t’s ruling on admissi bility of the impeachment evidence effectively precluded him from taking the s tand 3 and refuting the alleged confessi on in which he admitted his involvement in the robbery but denied havi ng harmed either victi m. The defendant’s assertion that he would have refuted the confess ion, however, is not supported by the record. Although the defendant initiall y filed a motion to suppress claiming that the confession had been obtained illeg ally, he waived his right to have the motion4 The defendant’s decision not to chall enge the admissibi lit y of the confession was made eight months befor

e the tri al court r

uled on the ad missibil ity of prior convicti ons for impeachment purposes. 11 heard. 4 Regarding this w aiver, the defendant stated on the r ecord: “That’s the statement that I gave. That’s what I want. That’s w

hat I said.” He also testified that he freely and voluntar ily gave the state ment to the police. The defendant has not specified and we are unable to determine how he intend ed to refute his confession. Under the facts and ci rcumstances of this case, w e hold that the trial court’s erroneou s ruling allowi ng impeachment by reference to a n unnamed felony conviction w

as harmless.

CONCLUSION

We hold that the trial court erred in r uling that the defendant’s credi bility could be impeached by asking whether he had been convi cted of an unnamed felony. We decline to adopt a rule that req uires a non-testifying defendant to state that he would have t estified had the prior conv iction been excluded and to make an offer of proof as to his prop osed trial testimony in order to obtain appellate review. These requirements are incons istent with Tenn. R. Ev id. 609(a)(3). We hold that the record is a dequate to permit meaningful rev iew of the impeachment issue and that the er ror was harmless in this case. Accordingly, w

e affirm the decision of the Court of Cr iminal Appeals. It appearing that the defendant is ind igent, costs of this appeal s hall be taxed to the State.

JANICE M. HOLDER, JUSTICE12 CONCURRING: Anderson, C.J. Drowota, Birch, and Barker, J.J.