Monday, January 25, 2010
Ten Years Have Got Behind You: Court Of Criminal Appeals Of Tennessee Affirms Felony Conviction Impeachment Ruling BECAUSE Of Timing Calculation Error
Tennessee Rule of Evidence 609(b) provides that
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
In its recent opinion in State v. Sweat, 2010 WL 153038 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee found that the trial court erred in failing to balance probative value and prejudicial effect before determining that two of the defendant's convictions that it determined to be more than ten years old would be admissible in the event that he testified. Luckily for the trial court, however, the court of appeals also found that the trial court erred in finding that the convictions were more than ten years old.
In Sweat, Michael D. Sweat, was convicted of aggravated robbery. Before trial, the court determined that the prosecution could impeach Sweat through his 1984 third degree burglary conviction and his 1988 escape conviction in the event that he testified at trial. The court reached this conclusion despite concluding that the convictions were more than ten years old and despite failing to balance probative value and prejudicial effect.
On Sweat's subsequent appeal, the Court of Criminal Appeals of Tennessee found that the trial court would have erred in failing to balance probative value and prejudicial effect if these convictions were in fact more than ten years old. According to the court, though
the presentence report show[ed] that the Defendant's confinement for his 1984 conviction for burglary and 1988 conviction for escape did not expire until July 28, 1996. The State argues, and we agree, that these two prior convictions were not more than ten years old at the time of the commencement of the action against the Defendant by presentment on March 29, 2005. Therefore, these convictions were properly admissible into evidence. We hold that the trial court did not abuse its discretion when it ruled that the Defendant could be cross-examined about his prior convictions for burglary and for escape.