Did You Notice That?: Court Of Criminal Appeals Of Tennessee Finds Defendant Failed to Comply With Rule 609(b)'s Notice Requirement

Similar to its federal counterpart, 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.

While the defendant in State v. Raymer, 2012 WL 4841544 (Tenn.Crim.App. 2012), likely could not have used the victim's 10+ year-old drug conviction to impeach him even if he complied with Rule 609(b)'s notice requirement, his failure to comply made that likelihood an inevitability.

In Raymer, Bobby Raymer was convicted of one count of especially aggravated kidnapping and one count of aggravated robbery. Raymer's alleged victim was Tony Singleton, and Singleton had the following criminal history:

(1) Misdemeanor assault, 1984;

(2) Misdemeanor resisting arrest, 1989;

(3) Felony drug conviction, 1995;

(4) Misdemeanor drug conviction, 2005; and

(5) Misdemeanor drug conviction, 2010.

The trial court precluded Raymer from using any of these convictions to impeach Singleton, and this ruling formed the partial basis for Raymer's appeal.

In addressing Raymer's appeal, the court was easily able to conclude that Singleton's four misdemeanor convictions were inadmissible because they were neither felony convictions not convictions for crimes involving dishonesty of false statement. And while the court strongly hinted that Singleton's 1995 felony drug conviction was inadmissible under the Rule 609(b) balancing test, it also found an independent reason why it was inadmissible: Raymer only gave notice of his intent to use it the day before trial, meaning that he "failed to comply with the requirements of Rule 609(b) by failing to give [advance] notice of intent to use the convictions as impeachment evidence."

-CM