State v. Galmore

• Decision Date: 10 May 1999
• Citation: 994 S.W.2d 120
• Parties: STATE of Tennessee, Appellee, v. Abraham GALMORE, Appellant.
• Court: Tennessee Supreme Court

Page 120

994 S.W.2d 120

STATE of Tennessee, Appellee, v. Abraham GALMORE, Appellant.

Supreme Court of Tennessee at Jackson.

May 10, 1999.

A.C. Wharton, Public Defender, M. Mark Ward, Assistant Public Defender, Memphis, for Appellant.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael J. Fahey, II, Assistant Attorney General, Nashville, for Appellee.

OPINION

HOLDER, Justice.

We granted this appeal to determine: 1) whether the State may impeach a defendant's credibility by referring to an unnamed felony conviction; and 2) if not, whether a non-testifying defendant must show that he 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 credibility by referring to an unnamed felony conviction. We further hold that the defendant was not required to preserve his objection by stating that he would have testified in his trial but for the trial court's ruling or by making an offer of proof as to his proposed trial testimony. Although the ruling as to the admissibility of the prior felony was improper, it does not mandate reversal in this case.

BACKGROUND

On December 14, 1993, James Hathaway and the defendant, Abraham Galmore, robbed Dan and Maxine Swartz, the resident managers of a self-storage facility in Memphis. Both victims were shot in the head, stabbed, and cut across the throat. Mr. Swartz died as a result of his injuries. Mrs. Swartz survived and was able to identify Hathaway, whom she knew prior to the incident, as one of the perpetrators. Galmore admitted his involvement in the robbery but denied having harmed either victim.

Prior to trial, the State gave written notice pursuant to Tenn.R.Evid. 609(a)(3) of its intent to impeach the defendant's credibility with six prior burglary convictions and one prior robbery conviction. After a hearing, the trial court concluded that the six burglary convictions could be used for impeachment purposes. As to the robbery conviction, the trial court stated that it was inclined to allow the State to use that conviction by asking the defendant, "Isn't it true that you are the same Abraham Galmore that was convicted of a felony on September 1, 1992, in indictment 92-02608, and received a sentence of X years ...?" ¹ The defendant did not testify at trial. The jury convicted the defendant of especially aggravated robbery and criminally negligent homicide. The trial court imposed an effective sentence of sixty-six years.

Relying on State v. Summerall, 926 S.W.2d 272 (Tenn.Crim.App.1995), the Court of Criminal Appeals held that admission of a prior conviction of "a felony" without further identification would have been improper. The court, however, concluded that the trial court's ruling was not reversible error because the defendant failed to demonstrate prejudice. The court noted that the defendant neither showed that he would have testified had the unnamed felony conviction been excluded nor made an offer of proof as to his proposed trial testimony. The court further held that any error was harmless based on the overwhelming evidence of guilt and the admissibility of the six burglary convictions for impeachment purposes.

ANALYSIS

The State concedes that the trial court erred in ruling that the defendant's credibility could be impeached by asking whether he had been convicted of an unnamed felony. The State, however, argues that the defendant waived his right to consideration of the issue on appeal because he: (1) failed to show that he did not testify because of the ruling; and (2) failed to make an offer of proof as to his proposed testimony. The defendant contends that the requirements proposed by the State conflict with Tenn.R.Evid. 609(a)(3), are against public policy, and have practical problems in implementation.

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 credibility outweighs 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 relevance the impeaching evidence has to the issue of credibility" and (2) " 'assess the similarity 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. Sheppeard, Tennessee Law of Evidence, § 609.9, at 376 (3d ed. 1995)).

The prior conviction 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, 941 (Tenn.1984). The defendant was indicted for especially aggravated robbery, murder during the perpetration of a robbery, and first degree premeditated murder. Evidence of a prior conviction that is the same or similar in nature to an offense being prosecuted is not per se inadmissible 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, could improperly influence a jury to convict a defendant based on propensity evidence.

In the case now before us, the trial court attempted to mitigate the potential prejudice of the impeaching evidence by referring to the robbery 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). 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. Therefore, the trial court erred in ruling that the State could impeach the defendant's credibility by asking him if he had been convicted of an unnamed felony.

II.

We shall next address the requirements for preserving the issue for review on appeal. Tennessee 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 determination." This provision 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 (1984).

In Luce, the United States Supreme Court held that a defendant must testify to raise and preserve for review the claim of improper impeachment with a 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 prejudicial effect when the precise nature 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 impeachment evidence motivated the defendant's decision not to testify. Id.

Despite Tennessee's rejection of the Luce rule, the Court of Criminal Appeals considered persuasive the reasoning of the United States Supreme Court. The Court of Criminal Appeals held that at least two things must occur before a non-testifying defendant can successfully appeal the trial court's ruling on the admission of a prior conviction. First, it must appear from the record that the defendant did not testify because of the adverse ruling on admissibility of a prior conviction. Second, the defendant should make an offer of proof as to his proposed trial testimony.

The Court of Criminal Appeals stated that the first requirement was best addressed by requiring the defendant to so testify outside the presence of the jury. The court noted that the record is silent as to why the defendant did not testify. The court expressed doubt that the proposed admissibility of the unnamed felony conviction had any impact on the defendant's decision not to testify in view of the evidence and the admissibility of the six prior burglary convictions. Although we cannot conclude that the defendant would have testified if the unnamed felony 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 unsophisticated or ill-advised defendant who is unaware that he can later decide not to testify if the prior conviction is excluded. See State v. Whitehead, 104 N.J. 353, 517 A.2d 373, 377 (1986). Therefore, we conclude that the defendant is not required to show that he did not testify because of the adverse ruling on impeachment evidence.

While recognizing that the making of an offer of proof as to the defendant's proposed trial testimony can be a time-consuming procedure for the already overburdened trial courts, the Court of Criminal Appeals reasoned that such a procedure was necessary for an appellate court to properly assess the impact of the trial court's ruling. The few states that have declined to adopt the Luce rule appear to be equally split between requiring 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, 298 Or. 336, 692 P.2d 579 (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 would have added nothing to record that included testimony of defendant's alibi witnesses); and placing no such restriction on the defendant's right to...