         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON
                                                      FILED
                            JULY 1997 SESSION
                                                     September 09, 1997

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                      )            Appellate C ourt Clerk
                                         )   NO. 02C01-9607-CR-00230
      Appellee,                          )
                                         )   SHELBY COUNTY
VS.                                      )
                                         )   Hon. Joseph B. Dailey, Judge
ABRAHAM GALMORE,                         )
                                         )   (Especially Aggravated Robbery and
      Appellant.                         )   Criminally Negligent Homicide)



FOR THE APPELLANT:                           FOR THE APPELLEE:

A. C. WHARTON, JR.                           JOHN KNOX WALKUP
Shelby County Public Defender                Attorney General and Reporter

W. MARK WARD (on appeal)                     ELLEN H. POLLACK
Assistant Public Defender                    Assistant Attorney General
147 Jefferson, Suite 900                     450 James Robertson Parkway
Memphis, TN 38103                            Nashville, TN 37243-0493

LOYCE D. LAMBERT (at trial)                  WILLIAM L. GIBBONS
RONALD S. JOHNSON (at trial)                 District Attorney General
Assistant Public Defenders
Shelby County Public Defender’s Office       TERRELL L. HARRIS
201 Poplar Avenue, Second Floor              DAVID C. HENRY
Memphis, TN 38103                            Assistant District Attorneys General
                                             201 Poplar Avenue, Third Floor
                                             Memphis, TN 38103




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



         The defendant, Abraham Galmore, was convicted by a Shelby County jury

of especially aggravated robbery and criminally negligent homicide.            He was

sentenced as a Career Offender to sixty (60) years and six (6) years, respectively,

for the offenses. Defendant’s sole issue presented on appeal is whether the trial

court erred in ruling that, if defendant chose to testify, the state could impeach him

by inquiring on cross-examination if he had been convicted of an unnamed felony.

The judgment of the trial court is affirmed.



                                            I.



         Because defendant does not challenge the sufficiency of the convicting

evidence, only a brief recitation of the facts is necessary. On December 14, 1993,

defendant and James Hathaway entered the Keyport Self-Storage Office in

Memphis. Elbert and Maxine Swartz, who managed the establishment, resided on

the premises. Mr. and Mrs. Swartz were held at gunpoint while defendant and

Hathaway searched the residence for money.

         At some point during the incident, Mrs. Swartz was shot, and her throat was

cut. Mr. Swartz was stabbed several times and shot, and his throat was cut. Mrs.

Swartz survived the incident; however, Mr. Swartz was pronounced dead at the

scene.

         Defendant and Hathaway left the building with bank bags containing

approximately $3,000, as well as two (2) watches and other jewelry items.

         Defendant subsequently confessed to his involvement in the robbery.

         After a jury trial, defendant was found guilty of especially aggravated robbery

and criminally negligent homicide. From these convictions, defendant brings this

appeal.




                                            2
                                           II.



       Defendant’s sole assignment of error is that the trial court erred in ruling that,

if he chose to testify, the state would be allowed to impeach him by inquiring on

cross-examination if he had been convicted of an unnamed felony. He claims that

the jury could only speculate as to what the unnamed felony was, giving no

guidance in their assessment of his credibility. He contends that this ruling was the

basis for his refusal to testify and, therefore, deprived him of his only means of

defending himself against the state’s charges.

       Pursuant to Tenn. R. Evid. 609(a)(3), the state gave written notice of its intent

to impeach the defendant with six (6) prior burglary convictions and one (1) prior

robbery conviction. The trial court conducted a hearing prior to trial to determine if

the convictions’ probative value on the issue of credibility outweighed their unfair

prejudicial effect. The trial court ruled that the state would be allowed to use the six

(6) prior burglary convictions for impeachment purposes. Defendant does not

contest this ruling. However, with regard to the robbery conviction, the trial court

stated:

              The robbery case -- I agree that robbery is certainly the type of
       offense that could be used for impeachment purposes if the
       defendant were not on trial for a robbery. In my opinion, to allow the
       offense of robbery -- the prior conviction for the offense of robbery --
       to get before the jury, at least in that form, would, in all likelihood,
       create a situation where the prejudicial effect outweighed any
       probative value, . . . So to use that robbery conviction - at least, in that
       form - I will not allow.

                But what I may allow - and I will have to wait and see -- I will
       reserve ruling on this until at least the end of the State’s case - but I
       am inclined to allow the use of that conviction simply by asking, “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,” or whatever?

               That, I think, would allow the State -- or even perhaps a felony
       involving -- Well, I might just leave [it] at that, but -- or some wording
       to suggest a felony involving honesty or moral turpitude - something
       of that -- I will give that some consideration.

...

               So I will definitely allow the six burglaries and I will, in all
       likelihood, allow the seventh felony - the robbery - but just to be asked
       in a different manner, and we can discuss that further as you get

                                            3
        closer to the close of your proof and Defense begins their
        determination as to whether they want to call their client to the stand.1

        In State v. Summerall, 926 S.W.2d 272 (Tenn. Crim. App. 1995), this Court

held that it is error to allow the state to impeach the defendant by inquiring whether

he had been convicted of an unnamed felony. 2 In so holding, the court stated that

“a ‘generic’ felony provides inadequate information for the jury to properly weigh its

probative value.” Id. at 277. Thus, allowing the state to mention the “generic” felony

would have little, if any, probative value. Consequently, the undue prejudicial effect

of the unnamed felony outweighs its probative value. Id. However, our Court in

Summerall did not specifically condemn the use of the words “felonies involving

dishonesty.” Id.; see also State v. Ross Jones, C.C.A. No. 01C01-9405-CR-00175

(Tenn. Crim. App. filed February 8, 1995, at Nashville). Based upon Summerall,

however, the admission of a prior conviction of “a felony” without further

identification would have been improper.

        Our inquiry does not end here, however. We must now determine whether

the trial court’s ruling was reversible error based upon the record before us. In

order to make this determination, Tenn. R. Evid. 609(a)(3) must be analyzed. Tenn.

R. Evid. 609(a)(3) provides that an accused “need not actually testify at the trial to

later challenge the propriety of the determination.” See State v. Blanton, 926

S.W.2d 953, 959 (Tenn. Crim. App. 1996). This rule is contrary to Fed. R. Evid. 609

as interpreted by 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 non-testifying

defendant was not entitled to pursue an appeal on the basis that the trial court erred

in ruling that the state could use a prior conviction to impeach him, should he testify.

The Court noted that an appellate court is “handicapped” from making a

determination whether the prejudicial effect of the proposed impeachment evidence




        1
          Although it is arguable that this entire issue is waived due to the failure to secure
a definitive ruling from the trial court, subsequently in the trial transcript it appears the trial
court intended to abide by the earlier ruling.
        2
            In fairness to the trial court, Summerall was not filed until after the trial of this case.

                                                   4
is outweighed by its probative value when the court does not know the “precise

nature of the defendant’s testimony.” 469 U.S. at 41, 105 S.Ct. at 463. Moreover,

the Court observed that an accused’s decision to testify “seldom turns on the

resolution of one factor,” and an appellate court “cannot assume that the adverse

ruling motivated a defendant’s decision not to testify.” 469 U.S. at 42, 105 S.Ct. at

463. (citing New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 1301, 59

L.Ed.2d 501 (1979)(Blackmun, J., dissenting)).

       Several jurisdictions have opted to follow the United States Supreme Court

directive in their state version of Rule 609 by requiring the defendant to testify in

order to properly preserve the issue on appeal. See Smith v. State, 778 S.W.2d

947 (Ark. 1989); State v. Brown, 782 P.2d 1013 (Wash. 1989); Vaupel v. State, 708

P.2d 1248 (Wyo. 1985). Other jurisdictions have refused to follow Luce and allow

a Rule 609 issue to be raised regardless of whether the accused testifies. See

State v. Ford, 381 N.W.2d 30 (Minn. Ct. App. 1986); State v. Whitehead, 517 A.2d

373 (N.J. 1986); People v. Moore, 548 N.Y.S.2d 344 (N.Y. App. Div. 1989);

Commonwealth v. Richardson, 500 A.2d 1200 (Pa. 1985). Yet, other jurisdictions,

while not compelling that the defendant actually testify to preserve the issue for

purposes of appeal, do require that the defendant create an adequate record

concerning the proposed testimony. See Wickham v. State, 770 P.2d 757 (Alaska

Ct. App. 1989); State v. McClure, 692 P.2d 579 (Or. 1984); Hansen v. State, 592

So.2d 114 (Miss. 1991). We find the third view to be the most persuasive.

       Tenn. R. Evid. 609(a)(3) allows the accused to raise the admissibility of prior

convictions on appeal without actually testifying at trial; however, we do not believe

that its intent is to mandate reversal whenever the trial court wrongfully rules that a

prior conviction will be admissible if defendant testifies. Otherwise, a defendant with

no intention of testifying could automatically secure a reversal if the trial court

improperly determined that a prior conviction would be admissible. In short, the

ability to raise the issue on appeal without testifying at trial does not necessarily

equate with reversal on appeal.

       At least two things must occur before a defendant who does not testify at trial



                                          5
can be successful on appeal based upon the trial court’s ruling on the admission of

prior convictions. Firstly, it must appear from the record that the defendant did not

testify “because of an unfavorable ruling on admissibility of a prior conviction.”

Tenn. R. Evid. 609, Advisory Commission Comments.                   The best method of

addressing this issue is through the testimony of the defendant out of the presence

of the jury. Secondly, the defendant should make an offer of proof as to the

proposed trial testimony so that the appellate court will be able to assess the impact

of the trial court’s ruling. State v. Baxter, 938 S.W.2d 697, 703 (Tenn. Crim. App.

1996); N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence, § 609.9 (3d

ed. 1995). We regret that this procedure can be time-consuming for the already

over-burdened trial courts. Nevertheless, in light of the language of Tenn. R. Evid.

609(a)(3) and the need of our appellate courts to properly assess the impact of the

trial court’s ruling, such a procedure appears to be the only sensible solution.

       In the case sub judice, defendant has failed to demonstrate that he was

prejudiced by the trial court’s ruling. Although defendant acknowledged out of the

jury’s presence that he understood the trial court’s prior ruling concerning the

robbery conviction and did not wish to testify, the record is silent as to whether he

intended to testify if the generic felony was not admitted.3 Furthermore, there was

no offer of proof as to his proposed trial testimony. Having failed to demonstrate

prejudice, defendant is not entitled to appellate relief.

       In addition, any error was clearly harmless. Tenn. R. App. P. 36(b). The

evidence against the defendant, including his confession, was overwhelming. The

trial court ruled that the state could impeach the defendant with six (6) prior burglary

convictions. It is well-settled that burglary convictions are probative on the issue of

credibility. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995); State

v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993). As such, these convictions

were clearly admissible for impeachment purposes if defendant chose to testify.

Moreover, defendant does not contest the admissibility of these convictions. In the


       3
         In view of the evidence and the admissibility of six (6) prior burglary convictions,
we sincerely doubt that the proposed admissibility of the generic felony had any impact on
his decision not to testify.

                                             6
context of the entire record, we conclude that the trial court’s ruling as to the generic

felony was at most harmless error.



       Accordingly, the judgment of the trial court is affirmed.




                                                   JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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