# FILED
March 17, 2000 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE

AT NASHVILLE DECEMBER 1999 SESSION
STATE OF TENNESSEE, ) ) NO. 01C01-9812-CR-00490 Appellee, ) M1998-00073-CCA-R3-CD ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, DEE W. THOMPSON, ) JUDGE ) Appellant. ) (Aggravated Rape - 3 cts.)

OPINION CONCURRING IN PART AND DISSENTING IN PART
I con c ur in most respects wi th the excellent opinion by m y colleague; however, I would conclude the defendanthas failed to establish pr ejudice regarding the admissibility of pr

ior convictions.
Specifically, the defendant has failed to show that any error more probably than not affected the judgment to his prejudi ce. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). Just as in State v. Taylor , “[t]here is nothing in the record and the defendant presents no argument c onc erning the substance of his c ontemplated testimony.”

993 S.W.2d 33, 35 (Tenn. 1999 ). Although an offer of proof is not required in order to preserve the issue for review, it may be the only way to demonstrate prejudice. State v. Galmore , 994 S.W.2d 120, 122 (Tenn. 1999) . The majority concludes that a proffe r from the defendant would be a mere “formality.” I am unwillingto make this leap. There are no pre-trial statements of the defendant
or any other

jury-out statements of def endant which would indicate his contemplated testimony. The fact that the “defense theory” was to attack t he vic tim’s credibility does not necessarily indicat e what the def endant’s testimony would be. Accordingly, the defendant has f ailed to demonstrate prejudi ce.2 There is harmless error for another reason. However, it is somewhat difficult to analyze this harmless error issue as we m ust perfor m mental gymnastics. We must first assume that defendant would testify if the tr

ial court properly rul ed on the admissibility of pri or convictions. See Galmore , 994 S.W.2d at 123. The major ity concludes that the esc ape and voluntary manslaughter convictions would be admissible. The majority then concl udes admissibility of the first degree murder and aggravated assault convictions would be improper. In summary, we must assume the defendant testifies in an exculpatory manner; the prior escape and v oluntary man slaughter

convictions are properl y admitted for impeachme nt purposes; and th e murder and aggravated assault convic tions are improperly a d mitt ed for impeachment

purposes. Based upo n these assumptions, the majority concludes the admissibility of the murder and aggr avated assault convictions creates reversible error. Based upon these same assumpti ons, I would conclude that once the voluntary manslaughter and e sc ape convictions were admitted, the result woiuld be the same regardless of whether the murder and aggravated ass ault convictions were also admitted. Thus , any error would be harm less.

I am not inclined to rever se these convictions based upon speculation as

to what the defendant’s testimony would be. I am certainl y not prepared to speculate t hat the defendant would admit com mitting these crimes. Nor am I prepared to sp eculate to what extent the defendant’s tes timony would be exculpator y. I am , quite simply, not prepare d to speculate.

For these reasons, I respectfully disagree with the finding of reversible error.

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_____ _ JOE G. RILEY, JUDGE