EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, August 2, 2009

But It Was Harmless: Court Of Criminal Appeals of Tennessee Finds Erroneous Impeachment Ruling To Be Harmless Error

Tennessee Rule of Evidence 609(a)(3) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:...

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Johnson, 2009 WL 2226171 (Tenn.Crim.App. 2009), makes clear, drug convictions are generally inadmissible under this Rule. But, as that opinion also makes clear, even when trial courts erroneously admit evidence of such convictions, appellate courts often find that the error was harmless.

In Johnson, a Knox County Criminal Court jury convicted Willie Douglas Johnson, of attempted second degree murder, two counts of aggravated assault, and three counts of unlawful possession of a weapon. These convictions were based in large part on the testimony of the victim, who identified Johnson as his shooter, and the testimony of Johnson's ex-girlfriend, who claimed that Johnson said that he was "going to get" the victim shortly before the subject shooting

The convictions, however, were not based upon the testimony of Johnson because he did not testify. And he ostensibly did not testify at least in part because the trial judge ruled that if Johnson did testify, he could be impeached through, inter alia, evidence of two prior cocaine possession convictions.

After he was convicted, Johnson appealed, claiming, inter alia, that this ruling was erroneous because "the probative value of his 2004 and 2006 convictions of possession of cocaine was outweighed by the unfair prejudicial effect of the convictions." And the Court of Criminal Appeals of Tennessee agreed, finding that

In State v. Weller, 118 S.W.3d 368 (Tenn. 2003), our supreme court concluded that convictions for the possession, sale, manufacture, or delivery of illegal drugs do not involve dishonesty,...and, as such, are "only slightly probative" on the issue of credibility....The supreme court also concluded that before such convictions are used as impeachment evidence, the trial court must "carefully balance the impeaching conviction's relevance with regard to credibility against its unfair prejudicial effect on substantive issues."...Here, the trial court did not engage in such an analysis. Instead, the court ruled simply that “if [the defendant] does testify [the State] may use those” convictions.  

But the problem for Johnson was that the court found this error to be harmless. According to the court,

Although the defendant correctly asserts that case law does not require the defendant to make an offer of proof to preserve the issue of the erroneous admission of previous convictions for impeachment, our courts have consistently held that "an offer of proof may be the only way to demonstrate prejudice."...Here,...the defendant did not testify at trial, did not make an offer of proof, and offers no summation of his intended testimony on appeal. Moreover, because the defendant presented no proof at trial, it is difficult to ascertain any specific theory of defense against which we could gauge the strength of the prosecution's case....The evidence adduced at trial established that the defendant told Ms. Banks he was "going to get" the victim shortly before he arrived at the victim's residence and shot him in the back. The victim positively identified the defendant as the shooter. Without any idea as to how the defendant intended to refute this evidence, we hold that the error was harmless.



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